11-000055 Cari Anderson vs. Wal-Mart Stores East Status: Closed Recommended Order on Tuesday, November 1, 2011.

Summary: Petitioner became loud and disruptive in the store when managers tried to inform her that dogs couldn't be in store and tried to ask if service dogs. Truthful call to police was not discriminatory. Petitioner's own actions caused arrest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARI ANDERSON , )

)

Petitioner , )

)

vs. ) Case No. 11 - 0055

)

WAL - MART STORES EAST , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to Notice, a hearing was held before the Division

of Ad ministrative Hearings by its desi gnated Administrative Law

Judge Diane Cleavinger on August 17, 2011 , in Panama City,

Florida .

APPEARANCES

For Petitioner: Cari Anderson, pro se

Post Office Box 37 1792

Las Vegas, Nevada 89137

For Respondent: Amy R. Turci, Esquire

Ford & Harrison, LP

225 Water Street, Suite 710

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Petition er has been the subject of discrimination

in a public accommodation due to a disability .

PRELIMINARY STATEMENT

On October 14, 2009, Petitioner , Cari Anderson

(Petitioner) , filed a Charge of Discrimination with the Florida

Commission on Human Relations (FCHR) alleging that Respondent,

Wal - Mart Stores East, L.P. (Wal - Mart or Respondent) , violated

chapter 760, Florida Statutes. Specifically, Petitioner alleged

that Respondent discriminated against her because of her

disability when RespondentÓs employees objected to the presence

of her service dog s while in the checkout line at the store and

later allegedly had her arrested while she was leaving the

store.

FCHR investigated Petitioners allegations . A fter

investigation, FCHR issued its d etermination of no c ause on

PetitionerÓs Charge of Discrimination o n April 13, 2010 . FCHR

also advised Petitioner o f her right to file a Petition f or

Relief.

On May 13, 2010, Petitioner filed a Petition for Relief.

The Petition was forwarded to the Division of Adminis trative

Hea rings (DOAH) for formal hearing and assigned Case No. 10 -

2565. Subsequently, Petitioner failed to comply with an Order

of the Division of Administrative Hearings and the case was

closed. After closure, Petit i oner requested that the case be

reo pened and presented excusable cause for her failure to comply

with the DivisionÓs earlier Order. Th e case was reopened under

Case No. 11 - 0055.

At the hearing, Petitioner testified on her own behalf and

presented the testimony of one witness. Additional ly,

Petitioner offered one exhibit into evidence. Respondent

presented the testimony of three witnesses and offered one

exhibit into evidence.

After the hearing, Respondent filed a Proposed Recommended

Order on October 7, 2011. Petitioner filed a Propose d

Rec ommended Order in letter form on October 12 , 2011. Attached

to PetitionerÓs letter was a purported copy of an alleged

settlement agreement between Wal - Mart and the United States, a

non - party entity, as well as, news articles about the

settlement. Non e of these documents was i ntroduced at the

hearing and are therefore, not considered in this Recommended

Or der. Additional ly, PetitionerÓs letter contained two CDs

which were not submitted at the hearing and could not be viewed

on the undersignedÓs comput er. Similarly, these CDs are not

considered in this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Cari Anderson, is a veteran of the Iraq War

and has Post Traumatic Stress Disorder (PTSD). Her PTSD is

sufficiently severe so as to constitute a disab ility under

Florida law. Because of her disability, Petitioner keeps with

her two small poodle - type service dogs that help her remain

calm. Petitioner also trains such service dogs.

2 . On April 5, 2009, Petitioner was visiting her friend ,

Michelle Clas - Williams, at her home in Panama City, Florida.

During her visit at around 2:00 in the morning , Petitioner ,

along with her friend, and her friendÓs daughter , decided to go

shopping at the Wal - Mart store in Callaway, Florida .

3 . Petitioner brought along h er two service animals to the

Callaway Wal - Mart. Neither of the dogs wore any identification

as service dogs; and therefore, could not be readily identified

as such. Upon arrival, Petitioner and her friend obtained

separate shopping carts. Petitioner p laced her two dogs on the

bottom of the shopping cart, on a towel.

4 . Petitioner and he r shopping companions entered the main

part of the store. No one from Wal - Mart stopped Petitioner from

entering the store. Both she and her friend spen t the next 20 -

30 minutes shopp ing throughout the Callaway Wal - Mart store where

surveillance cameras intermittently monitored their passage

through the store. None of the surveillance footage has sound .

As a consequence, the surveillance footage of PetitionerÓs visit

does not add support for either partyÓs version of the events in

this case.

5 . During her time in the store , Petitioner walked freely

throughout the aisles and w as not prevented from shopping at the

Callaway store. On at least two separate occasions, ind ividual

employees politely informed Petitioner that she could not have

her dogs in the store. However, on each such occasion

Petitioner explained to the employee that her dogs were service

animals. The employees responded positively and Petitioner

contin ued her shopping. There was no evidence that these

employees communicated with Wal - Mart management.

6 . As Petitioner and her friend approached the check out

lines, the Customer Service Manager , Monica Amis, noticed

PetitionerÓs two dogs in her shopping ca rt. M s. Amis walked up

to Petitioner and said, ÐMaÓam those dogs cann ot be in the

store.Ñ Before Ms. Amis could ask anything else, including

whether the dogs were service animals , Petitioner erupted into a

loud vocal tirade stating among other things , ÐY ou donÓt tell me

what the fuck to do. I can do what I want. IÓm sick of Wal -

MartÓs shit you think you own the world.Ñ Ms. Amis could not

get a word in and could not calm Petitioner down. Petitioner

demanded the store manager be called and demanded that some

papers which ÐprovedÑ her dogs were service animals be looked

at. Within minutes of first approaching Petitioner, Ms. Amis

instructed the cashier to process PetitionerÓs purchases. She

then walked away and called the store manager. The better

evid ence did not demonstrate that Ms. Amis was rude or profane

with Petitioner. The evidence did demonstrate that Ms. AmisÓ

actions in approaching and interacting with Petitioner were

clearly reasonable and did not constitute discrimination against

Petitioner .

7 . Shortly after Ms. AmisÓ call, the store manager, Gary

Wright , approached the front of the store. He could hear

Petitioner yelling. He was very concerned about her behavior

and the disturbance she was making. He approached her at the

cash register .

8 . Mr. Wright asked Petitioner to calm down so he could

speak with her. As she was paying for her items, Petitioner

continued to yell loudly and use profanity. She was permitted

to complete her t ransaction and no one from Wal - M art interfered

with he r ability to do so. However, Petitioner remained

belligerent, loud , and profane. Petitioner believed that her

rights were being violated and that Ms. Amis and the manager

could not tell her that her dogs could not accompany her in the

store and if they i nquired about them, they could only ask one

specific question about whether her dogs were service dogs under

an alleged agreement Wal - M art recently entered into with the

federal government. PetitionerÓs beliefs about the meaning and

scope of this alleged agreement , which was not introduced into

evidence, is simply misplaced and does not establish any of the

actions by either Ms. Amis or Mr. Wright as discriminatory acts .

9 . Like Ms. Amis, Mr. Wright could not get a word in . He

understandably became exa sperated with Petitioner and the

conversation devolved with Mr. Wright telling Petitioner on at

least two occasions to Ðshut upÑ and Ð shut the fuck up.Ñ He

also told her that he did not think poodle s were service

animals, but old - lady dogs. In the meanti me , Petitioner was

yelling about her papers and that Mr. Wright needed to look at

them. Mr. Wright simply wanted Petitioner to leave the store.

He also told her that he had no problems with the service dogs

being in the store, but if she did not calm dow n, he would have

to call the Bay County SherriffÓs office. Given PetitionerÓs

loud and irrational beha vior it was reasonable for Mr. W right to

ask Petitioner to leave the store .

1 0 . When Mr. Wright informed Petitioner that he was

calling the SheriffÓs of fice, Petitioner stated that she was

glad they were coming. She wanted their assistance. Mr. Wright

walked away and called the SheriffÓs office. There was no

evidence that Mr. Wright made a false report to the SheriffÓs

office. Additionally, Petitioner called 911 to confirm that an

officer was en - route. Likewise, given PetitionerÓs continued

behavior and her assent to the call, it was reasonable for

Mr. Wright to call the SheriffÓs office. Notably, the entire

interaction between Petitioner, Ms. Amis , and Mr. Wright took

less than 10 minutes.

11 . After completing her purchase, Petitioner remained at

the checkout lane while her f riend, who was in another check out

lane, paid for her merchandise. Petitioner continued yelling,

using profanity, and causing a disturbance.

12 . Then Deputy, now Investigator , VanStrander arrived

outside of Wal - MartÓs east entrance doors and was met by

Mr. Wright. Mr. Wright informed Investigator VanStrander that

Petitioner was making a scene and being very loud and

disruptive . Indeed, Investigator VanStrander could hear

Petitioner yelling while he was outside the store and she was

inside the store. Mr. Wright did not ask the officer to arrest

Petitioner.

13 . Once both Petitioner and her friend had completed

their purchases, they began walking toward the exit, with

Petitioner continuing to yell. Investigator VanStrander entered

the store and was immediately approached by Petitioner who was

screaming and Ðcussing like a sailor.Ñ

14 . Investigator VanStrander instructed Petiti oner that

she needed to leave the store. He also informed her that she

would be arrested if she did not comply. Petitioner did not

immediately follow his instructions . Instead she attempted to

argue her position and show the officer her papers . He agai n

instructed her to leave and motioned to the door. He did not

block the doorway as Petitioner claimed that he did. She again

did not immediately comply and within seconds the officer

arrested Petitioner.

15. With little to no struggle she was handcuf fed, placed

into custody , and charged with disorderly conduct and resisting

an officer without violence. PetitionerÓs interaction with the

deputy while in the store lasted less than 5 minutes.

Importantly, the evidence clearly demonstrated that the decis ion

to arrest Petitioner was made by Investigator VanStrander .

Respondent was not responsible for the actions of the officer or

for Petitioner's behavior which led to her arrest . G iven these

facts, the Petition f or Relief should be dismissed.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has

jurisdiction over the parties and th e subject matter of this

action, pursuant to c hapters 120 and 760 , Florida Statutes .

17 . Chapter 760, Florida Statutes , is known as the Florida

Civil Rights Act. Section 760.08, Florida Statutes (2008)

provides:

A ll persons shall be entitled to the full

and equal enjoyment of goods, services,

facilities, privileges, advantages, and

accommodations of any place of public

accommodation, . . . without discriminat ion

or segregation on the ground of race, color,

national origin, sex, handicap, familial

status, or religion.

18 . The Florida Civil Rights Act is based on federal anti -

discrimination statutes, Title II of the Civil Rights Act of

1964, 42 U.S.C. § 2000a, et seq. and 42 U.S.C. § 1981. See

Stevens v. Steak N Shake, Inc. , 35 F. Supp. 2d 882, 886 ("[T]his

Court looks to established federal public accommodation law in

order to determine the meaning of the term 'such refusal may not

be based upon race, creed, [or] color . . .' in Florida

Statutes, s ection 509.092, and to determine the elements of [the

plaintiffs'] civil rights claims under the Florida Statutes.");

see also Laroche v. Denny's, Inc. , 62 F. Supp. 2d 1375 (S.D.

Fla. 1999) (in a case where a restaur ant was alleged to have

refused service to black customers, court treated plaintiffs

federal and state law claims as having identical substantive

elements), rev'd in part , vacated in part , 281 F.3d 1285 (11th

Cir. 2001). Therefore, federal case law can be used to

interpret the Florida Civil Rights Act.

19 . In McDonnell Douglass Corp. v. Green , 411 U.S. 792

(1973), the Supreme Court of the United States articulated the

burden of proof for cases involving allegations of

discrimination under Title VII cases. Under that case, a

plaintiff has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. If the plaintiff establishes a prima facie case

then the r espondent must go forward and articula te a legitimate

nondiscriminatory reas on for the action taken by the R espondent.

Once the r espondent has articulated a legitimate

nondiscriminatory reason, the p laintiff then must establish by a

preponderance of the evidence that the reason given is not t rue

or merely pre - textual. The same framework also applies to

complaints regarding discrimination in public accommodations.

See Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133

(2000); see also generally Brown v. American Honda Motor Co. ,

939 F.2d 946, 949 (11th Cir. 1991) (applying Title VII

procedural framework to Section 1981 case; granting summary

judgment for defendant).

20 . In Laroche v. Denny's, Inc. , 62 F. Supp. 2d 1375 (S.D.

Fla. 1999) , the Court held that a P etitioner must establish by a

preponderance of the evidence that:

a. they are a member of a protected class;

b. they attempted to contract for services

and to afford themselves the full benefits

and enjoyment of a public accommodation;

c. they were denied the right to cont ract

for those services and, thus, were denied

the full benefits or enjoyment of a public

accommodation; and

d. such services were available to

similarly situated persons outside the

protected class who received full benefits

or enjoyment, or were treat ed better.

21 . If a p etitioner can establish a prima facie case, Ðthe

burden of persuasion shifts to [ r espondent} to proffer a

legitimate business reason for the conduct at issue.Ñ Id.

2 2 . In this case, as stipulated by Respondent, Petitioner

is disabled and is a member of a protected class. Additionally,

the parties agreed that Wal - Mart constitutes a Ðpublic

accommodationÑ as defined by section 760.02(11).

2 3 . However, Petitioner is unable to establish a prima

facie case of public accommodation discrimination because she

cannot establish that she was denied the ability t o shop at Wal -

Mart, or that a simi larly - situated person outside the protected

class was treated better.

2 4 . As the testimony revealed and as demonstrated by the

surveillance foo tage v iewed during the final h earing, Ms. Amis

and the store manager briefly approached Petitioner in the

checkout line. During that time, Petitioner became agitated and

loud and engaged in a non - stop verbal assault to the point a

person Ðcould not get a word in.Ñ Ho wever, no one from Wal - Mart

tried to stop or stopped Petitioner from purchasing her selected

merchandise and she proceeded through the checkout line while

continuing to yell about her rights, her dogs, and her papers

for the dogs. The evidenc e demonstrated that Petitioner was not

asked to leave Wal - Mart until she engaged in a he ated exchange

with the store manager. In general, a disability does not grant

permission for a disabled person to become disruptive in a

public place. Therefore, a ski ng a disruptive person to leave a

public accommodation is neither discriminatory nor unreasonable.

See , e.g. , Rosado Maysonet v. Solis , 409 F. Supp. 576, 579 - 80

(D.P.R. 1975) (finding no inference of racial discrimination

where plaintiffs were excluded fr om casino due to refusal to

comply with dress code and "rowdy" intoxicated behavior); Evans

v. Holiday Inns, Inc. , 951 F. Supp. 85 90 (D.Md. 1997) (granting

motion for summary judgment where plaintiffs failed to establish

prima facie case of discriminatory enforcement of a motel policy

regarding sanctions for noise and obnoxious behavior).

25. Similarly, treating Petitioner in a rude or hostile

manner when she herself was rude and hostile does not

demonstrate that such behavior or Wal - MartÓs actions were

d iscriminatory. See Lizardo v. Denny's Inc. , 270 F.3d 94, 102

(2d Cir. 2001) ("A failure to greet customers on an extremely

busy evening and an exasperated - even testy - response to a

complaint of discrimination do not constitute marked hostility

as defined, nor are they conduct which should be presumed to

have its origins in racial bias . . . the heated exchange of

words does suggest anger, but there is nothing to suggest that

the anger stemmed from a bias against people of [the

plaintiff's] race."). See als o Robertson v. Burger King, Inc. ,

848 F. Supp. 78, 81 (E.D. La. 1994) .

26. Additionally , b ecause Petitioner appeared hostile and

disruptive, the manager called the police . Petitioner also

asked that the police be called and called 911 to confirm they

wer e on their way . There was no eviden ce that demonstrated the

store manager acted in a discriminatory manner towards

Petitioner when he called the police and made a truthful report

to them. Under the facts of this case, calling the police , and

making a tru thful re port when a cust omer is loud and disruptive

do not constitute discrimination on the part of Wal - Mart.

Aviles v. Cornell Forge Co . , 241 F.3d (7 th Cir. 2001). Wal - Mart

did not ask that Petitioner be arrested. It was PetitionerÓs

own behavior that resulted in the sheriffÓs deputyÓs decision to

arrest her.

27. In fact, the call to the police did not interfere with

Petitioner completing her transaction at the store. Petitioner

complete d her shopping and purchases .

2 8 . However, e ven assuming Petitio ner presented a prima

facie case of disability discrimination, Respondent presented

evidence of a legitimate, nondiscriminatory reasons for its

actions. Petitioner became angry and disruptive at Wal - Mart.

It was reasonable for Wal - Mart personnel to reque st that she

leave the property and to call the police to ensure that she

left without incident when Petitioner became disruptive, and was

creating a disturbance at 3:00 in the morning. There was no

evidence to suggest that Wa l - MartÓs nondiscriminatory rea son for

asking Petitioner to leave was pre - textual . Aviles , supra .

Alexis v. McDonald's Restaurants, Inc. , 67 F.3d 341, 347 - 48 (1st

Cir. 1985) (plaintiff's testimony that defendant acted "angrily"

toward plaintiff with a negative tone and "had 'no reason' to

eject" plaintiff from restaurant failed as a matter of law to

demonstrate purposeful discrimination, noting that there was no

probative evidence indicating that the manager's petulance was

anything other than a race - neutral reaction to a stressful

enco unter). Specifically, e ven if Petitioner could establish a

prima facie case, which she cannot, Wal - Mart had a legitimate

reason for calling the Bay County SheriffÓs office Therefore,

Petitioner has not establish ed that she was subjected to public

accommo dation discrimination and the Petition for R elief should

be dismissed .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing Petitioner Ós Complaint of

Discrimination and Petition for Relief.

DONE AND ENTERED this 1st day of November , 2011 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Heari ngs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of November , 2011 .

COPIES FURNISHE D :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Amy Harrison Turci, Esquire

Ford & Harrison LLP

225 Water Street, Suite 710

Jacksonville, Flo rida 32202

Cari Anderson

P ost Office Box 371792

Las Vegas, Nevada 89137

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.