11-005266 Melissa Drayton vs. Lowe's Home Centers, Inc. Status: Closed Recommended Order on Friday, January 27, 2012.

Summary: Petitioner failed to demonstrate that Respondent was responsible for a racially hostile work environement, that she was subject to disparate treatment, or that she suffered retaliatory discharge for her complaints of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELISSA DRAYTON , )

)

Petitioner, )

)

vs. ) Case No. 11 - 5 2 66

)

LOWE ' S HOME CENTERS, INC., )

)

Respondent. )

)

R ECOMMENDED ORDER

On December 1 , 2011, a duly - noticed hearing was held in

Ocala , Florida, before F. Scott Boyd, an Administrative Law

Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Pe titioner: Melissa Drayton, pro se

1421 Southwest 27 th Avenue , No. 2106

Gainesville, Florida 3 4471

For Respondent: Charles E. Williams, Esquire

Constangy, Brooks and Smith, LLP

100 North Tampa Street, Suite 3350

Tampa , Florida 3 3601

STATEMENT OF THE ISSUE

The issue is w hether the Respondent committed an unla wful

employment practice under s ection 760.10, Florida Statutes

(20 10 ) , by discriminating against Petitioner on the basis of

race, color, or sex , and if so, what remedy should be ordered .

PRELIMINARY STATEMENT

On June 7, 2011 , Petitioner filed a complaint with the

Florida Human Relations Commission (Commission) , alleging that

Lowe ' s Home Centers, Inc. , had discriminated against h er based

upon h er race, color, and sex. On September 23, 2011 , the

Commission issued a Notice of Determination of No Cause, and on

October 12, 2011 , Petitioner filed a Petition for Relief. On

October 12, 2011 , the matter was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge.

The case was noticed for hearing on December 1, 2011, in

Ocala, Florida . Petitioner testified and offered six exhibits.

Petitioner ' s Exhibits 1 through 3 as well as 5 and 6 were

admitted into evide nce. Petitioner ' s Exhibit 4, a Decision of

Appeals Referee, was found not relevant and was not admitted.

Respondent presented the testimony of three witnesses and

offered seven exhibits. Respondent ' s Exhibits 1 through 4 as

well as 6 and 7 were admitted . Respondent ' s Exhibit 5, a

memorandum regarding Petitioner ' s conduct , was not admitted

because Petitioner had n ot seen it before and it had not been

provided to Petitioner as provided in the Order of Pre - hearing

Instructions .

The one - volume T ranscript of the proceedings was filed with

the Division on December 13, 2011 . Bo th parties timely

submitted Proposed Recommended O rders , which were considered .

FINDINGS OF FACT

1. Lowe ' s Home Centers, Inc. (Lowe ' s) is a retail sales

corporation that does business in Florida and employs over 15

employees .

2 . Melissa Drayton, Petitioner in this case, is an

African - American woman who began working for Respondent as a

part - time cashier in February of 2008.

3 . At the time she was hired, Petitioner was made a ware of

Lowe ' s policies prohibiting discrimination and various methods

to report it , including direct communications to management, to

human resources personnel, through a toll - free telephone line,

and through a website.

4 . Petitioner worked for the Respo ndent in a part - time

capacity for a period of approximately two years without any

" write - ups " or disciplinary action of any kind.

5 . Petitioner received positive " star development "

performance reviews between 2008 and 2010 , and received pay

increases.

6 . At some point between 2008 and 2010, Petitioner also

received a " corporate compliment " for excellent performance.

7 . Petitioner submitted a " request for consideration " form

asking to be transferred from cashier to a sales position in

home décor or other department in the store.

8 . Petitioner talked with Mr. Lee Walker , the S tore

Manager, about her desire to move to the home décor department .

Mr. Walker told Petitioner that he would " give her the

o pportunity providing we followed the steps and went fr om

there. "

9. At a meeting with Petitioner present, Mr. Walker told

the Assistant Manager responsible for the paint and home décor

department that Petitioner would soon be moving to home décor.

10 . At a later point, Mr. Walker told Petitioner that

Lowe ' s was shorthanded at the front of the store and that they

needed to keep her up front. He told her that provided they got

everything filled in time, they could get her moved over.

11 . On April 6, 2010, Petitioner was advised by

Ms. Benjamin , the Human Resources Manager at the store

throughout the time of Petitioner ' s employment , that Petitioner

was not on the schedule to b e transferred to home décor, but

would remain a cashier. Ms. Benjamin explained to Petitioner

that Lowe ' s was short on cashiers. M s. Benjamin testified that

Petitioner was then very upset when she went out on to the

floor. Almost immediately there after, Petitioner displayed rude

and unfriendly behavior to a customer .

12. On April 13, 2010, Respondent " wrote up " Petitioner

for the incident by preparing an unfavorable Employee

Performance Report with the " initial " block checked . The report

was prepared b ased upon Respondent ' s belief that on April 6,

with unloaded items at her register which she had begun to ring

up, Petitioner sudd enly said, " I can ' t do this " and just walked

away, leaving the customer standing at the register. Petitioner

was given an opportunity to make written comments. Petitioner

wrote:

The day of the Report I told Linda I needed

to go to the back. I went to t he back , and

Sally came into the bathroom and I told her

I needed to go home because I can ' t perform

today. She would not let me go home. On

back. I do not try to bring my personal

issues at work , at that point and time I

became overwhelmed and was not able to

perform as I usually do. Was not allowed

to leave by my supervisor Sally due to her

concern for me.

Petitioner testified at hearing that there was a page missing

from this document , o n which Petitioner had described issues she

was having with management. This testimony is not credible. At

the end of the comment block on the first page, Petitioner

indicated " on back. " The back page writing begins at the top of

the page, continues the same topic begun on the first page, and

ends with ample sp ace remaining. It is not reasonable to

conclude that Petitioner submitted an additional page on a

different topic in to the middle of her other narrative or would

have begun a new page without first using up the available space

on the back of the form. Ms . Benjamin also testified that there

were no missing pages to the report , testimony which is

credited .

13 . Petitioner also testified at one point during the

hearing that the write - ups started shortly after she began

complaining about issues that she was having with her

employment . S he testified at another point that she began

complaining about these issues as soon as she started working at

Lowe ' s in 2008. Yet the evidence clearly indicates that

Petitioner had no write - ups for a period in excess of two y ears,

because her first write - up did not occur until April 6, 2010.

Therefore b oth of Petitioner ' s statements cannot be true.

Petitioner ' s testimony suggesting that the write - ups occurred as

a response by Lowe ' s to her complaints about several management

issues is rejected as not credible. Petitioner ' s testimony that

she had no write - ups for two years and that the first write - up

occurred on the same day that she learned she was not scheduled

to be moved to home décor is much more credible, is corroborate d

by the testimony of Ms. Benjamin , is further corroborated by

Lowe ' s employee records , and is accepted as true .

14 . Ms. Benjamin testified she could not recall any

complaints or issues from Petitioner related to race, color, or

gender. She testified t hat Petitioner never came to Human

Resources to complain about discrimination. Ms. Benjamin also

stated she was unaware of any complaints of discrimination that

had been filed through the toll - free number and that she would

have been aware if complaints h ad been filed . Ms. Benjamin

testified that although complaints filed on the website about

the store were anonymous, to her knowledge no " ethics points "

calls regarding the store had ever been filed by any person

during the period of Petitioner ' s employmen t. She testified

that had Petitioner made any complaints to her, they would have

been investigated. Ms. Benjamin was credible and her testimony

on these points is accepted.

15 . Petitioner testified that she complained to Lowe ' s

about numerous issues. She testified that she saw individuals

" hired off the street " who were white or Hispanic that were put

into some sales positions, but that despite Mr. Walker ' s

promise , she was not transferred to a sales position , but

remained a cashier. She stated she had been called " nigger " by

customers, while conceding that no employee ever used any

derogatory racial slur towards her . She also state d that she

had been " cussed out " by different employees. She had several

concerns about the way the cashiers were mana ged. In

particular, s he felt some senior employees took more breaks tha n

regular employees were allowed to take . Other s were permitted

to take longer breaks , lasting 20 to 30 minutes , rather than

only 15 minutes. Petitioner testified that one employee n amed

" Vanessa , " whose last name was unknown, was particularly likely

to tak e long breaks and was " allowed to do whatever she wanted "

by Lowe ' s. There was no evidence presented as to whether

Vanessa was ever disciplined or was ever moved to a sales

positio n.

16 . The derogatory comments relating to race made by

customers were abusive and were demeaning to Petitioner. The

instances in which customers used racial epithet s were isolated

events , however .

17 . Petitioner discussed her concerns about the way the

cashiers were managed with her supervisor, Ms. Sally Deckle , but

no changes were made. Petitioner became frustrated and felt

that despite Lowe ' s " open door " policies, her concerns were

ignored. She believed that Lowe ' s failed to work with the

employe es that worked there.

18 . When Petitioner stated to Ms. Deckel that the

management at Lowe ' s was " hypocritical, " Petitioner testified

that Ms. Deckel told Petitioner to " kiss my ass " or words to

that effect.

1 9. Petitioner testified that she went to the Assistant

Store Manager in charge of the cashiers , Ms. Kelly Young, and

subsequently to the store manager, Mr. Lee Walker, about

Ms. Deckle ' s use of profanity. Petitioner testified that

Mr. Walker only " rolled his eyes " in response and that no action

was ever taken . Mr. Walker did not remember this complaint .

20 . The facts do not support the conclusion that

Respondent discriminated against Petitioner on the basis of

race, color or gender based upon Lowe ' s failure to respond to

Petitioner ' s complaint s.

21 . Around the time of Petitioner ' s first adverse Employee

Performance Report in April , Lowe ' s changed the process for an

employee to request placement in a new position. The form that

had previously been used was discontinued , and was no longer

us ed. Under the new system, available positions were posted on

the website, and employees would apply online. Employees were

informed of the new system though postings in the break room,

discussions in morning meetings, articles in the newsletter, and

the information on the website itself. Petitioner knew or

should have known of the new procedures. Petitioner never

applied to be moved to a sales position through the new system.

22 . On June 5 , 2010 , Petitioner failed to deactivate an

alarm on one of the items she rang up, because she claimed she

was too tired to lift the box. On June 6, 2010 , Respondent

received a complaint from a customer who had accidently

processed the wrong form of payment by using a credit card when

he wanted to use a debit card, or vice versa . The complaint

stated t hat Petitioner was rude and unfriendly to the customer

and refused to help him correct his mistake. On June 7, 2010,

Petitioner displayed uncooperative behavior towards c o - workers

while she was working returns and waiti ng for her relief. She

also refused to do a refund for a customer , stating she did not

have enough money in her register, although she had $600.

Respondent did not discuss these incidents with Petitioner at

the time they occurred. A second unfavorable E mployee

Performance Report was prepared on June 12, 2010, with the

" written " block checked , that document ed these incidents , which

was the first time Respondent confronted Petitioner regarding

the incidents . Petitioner was given an opportunity to make

wri tten comments. Petitioner wrote. " I ' m tired of all the

issues that ' s going on up front as a front end cashier. Issues

need to be addressed. "

23 . On September 24, 2010 , Petitioner received an Employee

Performance Report with the " written " block checke d , for poor

attendance. Again, as was the practice with all " write - ups "

given to Petitioner in this case, the incidents were not

discussed with Petitioner at the time they occurred, but only at

the time of the report. The report noted Petitioner had been

called in six times since February. Petitioner made no written

comments on this report.

24 . On December 24, 2010 , Petitioner received an Employee

Performance Report with the " final notice " block checked for

refusing to cover the return desk as request ed by a head cashier

to allow another employee to take a restroom break . Petitioner

refused beca u se she was scheduled to leave at 3:00 p.m. and the

request was made ten minutes before this time. Mr. Walker

testified that he always personally advises empl oyees at a

" final warning " that their employment at Lowe ' s is subject to

termination if there are any further policy violations.

Mr. Walker testified he personally made this quite clear to

Petitioner . Petitioner made no comments on the report.

25 . On February 2, 2011 , a customer approached

Petitioner ' s cash register asking her to check a price.

Petitioner told the customer that she could not check the price

because she had to go, and instructed the customer to go to

another associate. On February 4, 2011, a customer came to

Petitioner ' s register to check out. The customer had several

nuts and bolts and Petitioner sent the customer back to the

department to get the item numbers instead of looking them up in

the book.

26 . An Employee Performance Re port with the " t ermination "

block checked was prepared on February 11 , 2011 , documenting

these incidents. Petitioner was given an opportunity to make

written comments. Petitioner wrote :

2 - 2 - 11 New cashier Fern was assisting

customers. I helped her get her line down.

Also, it was the end of my shift. After

this we r e no more customers. I clock out

and went to put vest in locker the usual.

Did not do or say anything to offend

customers.

2 - 4 - 11 Customer got in line said he didn ' t

see item numbers for the bolts. I responded

in friendly voice all the bolts and washers

have item numbers. I said there is always

someone to assist you said nicely before I

can get booked to scan he walked away. For

nothing, I did nothing, I said nothing wrong

to customer.

I do not reca l l this complain t with this

customer 2 - 2 - 11. I thought I had already

had clocked out. That would be the only way

I turned a customer away if I had clocked

out. This problem I do not recall. I have

been doing more customer focus. I do no t

understand these ongoing complaints. I ' m

not stressed or angry or having a bad day.

I try to stay customer focused with every

customer. Everyone that works around me

knows I do customer focus with every

customer. I do not put my foot in my mouth

at w ork. I know how these customers are , so

I do not try to do anything to set them off.

I have to try a good day at work.

All I try my best to do is customer focus.

All employees that work around me knows I ' m

never mean or nasty to a customer. The

custo mers some of them are very edgie people

so why would I do o r say anything to set

them off or make them complain. I ' m not

perfect but I know I work c ustomer focus

ethics when I ' m scheduled to work. Every

time I got talked to by upper management

about a cu stomer complaint I looked at what

they said I did wrong and use that as

improvement for better customer service and

focus and ethics.

27 . Petitioner was terminated from employment at Lowe ' s by

Mr. Walker. He advis ed Petitioner that she was being ter minated

because of too many customer complaints. Petitioner was polite,

shook Mr. Walker ' s hand, and departed. Petitioner did not say

anything about race discrimination, color discrimination, or

gender discrimination at the termination meeting .

28 . Peti tioner later talked with Ms. Jenkins of the NAACP.

Petitioner testified that Ms. Jenkins wrote, and Petitioner

signed, an undated letter to Lowe ' s Regional Human Resources

office in North Carolina. The letter complained that Petitioner

had been discharge d unfairly. It did not assert any

discrimination on the basis of race, color, or gender. This

letter was written sometime in April of 2011.

2 9. Mr. Sloan Wilson , Lowe ' s R egional Human Resources

D irector, wrote a letter to Petitioner on May 26, 2011, o ffering

Petitioner a cashier position in another store. Petitioner

declined this offer.

30 . Petitioner filed charges of discrimination with the

Florida Commission on Human Relations in June, 2011. She

testified that she had been talking to an attorney and was given

a packet to fill out. Petitioner stated that the charges of

discrimination on race , color, and sex came about because

Petitioner didn ' t know which one on the packet to properly fill

out.

31 . Mr. Walker was " pretty shocked " when he learned that

Petitioner had charged Lowe ' s with discrimination on the grounds

of race, color, and sex. He had talked with Petitioner on

numerous occasions and there had been no discussion or

complaints to him about any discrimination. He was unaware that

Petitio ner had had such discussions with anyone in the store.

He testified that he would have confronted any customer who used

a racial epithet and walked them out of the store.

32 . On October 12, 2011, Petitioner filed a Petition for

Relief against Respondent for an unlawful employment practice,

which was referred to the Division of Administrative Hearings

the same day.

C ONCLUSIONS OF LAW

33 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in this

case u nder sections 120.569 and 120.57(1), Florida Statutes.

34 . The Florida Civil Rights Act, sections 760.01 Î 760.11

and 509.092 , Florida Statutes (201 0 ), is patterned after federal

law contained in Title VII of the Civil Rights Acts of 1964, and

Florida cour ts have determined that federal discrimination law

should be used as guidance when construing its provisions. See

Fla. State Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996);

Fla. Dep ' t of Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st

DCA 1991).

35 . Section 760.11(1) provides that an aggrieved person

may file a complaint with the C ommission within 365 days of the

alleged violation . Petitioner timely filed her complaint, and

following the Commission ' s initial determination, timely filed

h er Petition for Relief requesting this hearing.

36 . Respondent is an employer as that term is defined in

section 760.02(7).

37 . Petitioner has the burden of proving by a

preponderance of the evidence that the Respondent committed an

unlawful employment practice. Fla. Dep ' t of Transp. v . J.W.C.

Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Race, Color, and Gender Discrimination Claim s

38 . Section 760.10(1)(a) provides that it is an unlawful

employment practice for an employer to " discriminate against any

indi vidual with respect to compensation, terms, conditions, or

privileges of employment, because of such individual ' s race,

color, religion, sex, national origin, ag e, handicap, or marital

status. "

3 9. Discriminat ion can be established through direct ,

circums tantial , or statistical evidence . U . S. Postal Serv. Bd.

of Gov ' nrs v. Aikens , 460 U.S. 711, 714 (1983) ; Schoenfeld v.

Babbitt , 168 F.3d 1257, 1266 (11th Cir. 1999). Di rect evidence

of discrimination is evidence that, if believed, establishes the

existen ce of discriminatory intent behind an employment decision

without inference or presumption. Wilson v. B/E Aero., Inc. ,

376 F.3d 1079, 1086 (11th Cir. 2004) ; Maynard v. Bd. of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003) .

40 . Petitioner presented testimony a ttempt ing to show

unlawful discrimination i n two contexts: first that customers

used racial epithets toward Petitioner and Respondent permitted

this conduct , and second that she was treated differently by

Respondent because she was not promoted or transferred to a home

décor sales position.

41 . Petitioner ' s testimony that customers called her

" nigger " and that Respondent did nothing about it alleges a

racially hostile work environment. A prima facie case of racial

discrimination due to a hostile work environment requires proof

of the following e lements: ( 1 ) the employee belong ed to a

protected group; ( 2 ) the employee was subject to unwelcome

harassment; ( 3 ) the harassment was based on a protected

characteristic , such as race ; ( 4 ) th at the harassment was

sufficiently severe or pervasive to alter the terms or

conditions of employment and create a discriminatorily abusive

working environment; and ( 5 ) the employer was responsible for

such environment under either a theory of vicarious or direct

liability. See Miller v. Kenworth of Dothan, Inc. , 277 F.3d

1269, 1275 (11th Cir. 2002) .

42 . Th e evidence demonstrated that Petitioner is an

African American woman who was subjected to unwelcome racial

epithets based upon her race and color. These epithets were

derogatory and abusive and were intended to be demeaning to

Petitioner. At issue is whether or not the harassment was

sufficiently severe or pervasive so as to alter the terms or

conditions of employment and create a discriminatorily abusive

working environment, and if so, whether Respondent was

resp onsible for that environment.

43 . In order to establish that harassment affected a

condition of employment the Petitioner must show that the

harassment was so severe or pervasive that it altered the

interpersonal climate of the workplace, creating an obj ectively

abusive and hostile atmosphere. Gupta v. Fla. Bd. of Regents ,

212 F.3d 571, 582 (11th Cir. 2000).

44 . While it is clear that racial epithets at an

" excessive and opprobrious level " may constitute an unlawful

employment practice, a few isolated and unconnected incidents

involving racial epithets such as those endured by Petitioner ,

do not. See Cariddi v. Kansas City Chiefs Football Club, Inc. ,

568 F.2d 87, 88 (8th Cir. 1977), Johnson v. Richmond Co . , 507 F.

Supp. 993, 996 (S.D. Ga. 1981) . As t he United States Supreme

Court has noted, the " [m]ere utterance of a racial epithet that

engenders offensive feelings in an employee " but does not alter

the conditions of employment, does not present an actionable

situation. Meritor Savings Bank, FSB v. V inson , 477 U.S. 57, 67

(1986) (quoting Rogers v. EEOC , 454 F.2d 234, 238 (5th Cir. Tex.

1971)).

45 . Moreover, the evidence did not demonstrate that

Respondent was responsible for perpetuating a discriminatory

environment . Petitioner stated that no store employee had ever

used racial epithets toward her. Petitioner acknowledged

familiarity with Respondent ' s policies against discrimination

and various avenues to report it, yet the evidence shows that

Petitioner made little effort to utilize them. T he evi dence

shows that she made a report of the customers ' racial remarks to

her immediate supervisor. Both the Human Relations Manager and

t he S tore M anager credibly testified that th e y w ere never

informed . Petitioner never escalated her complaints or used th e

toll free number or website to report these incidents. While

Petitioner ' s immediate supervisor might be faulted for not

reporting the incident s , there was no testimony that the racial

epithets came from a single identifiable customer or that

Respondent failed to take reasonable action available to it to

address the issue. Petitioner has not proven that Respondent

was responsible for a discriminatory environment under either a

theory of vicarious or direct liability . Cf. Walton v. Johnson

and Johnson , 3 47 F.3d 1272, 1288 (11th Cir. 2003) (prompt and

reasonable action to address issues taken after situation was

brought to respondent ' s attention absolved respondent of

liability).

46 . Petitioner also sought to prove discrimination through

circumstantial evidence of disparate treatment. I n McDonnell -

Douglas Corp. v. Green , 411 U.S. 792 (1973 ), the Supreme Court

established the analysis to be used in cases alleging claims

under Title VII that rely on circumstantial evidence to

establish discrimination. Th is analysis was later refined in

St. Mary ' s Honor Center v. Hicks , 509 U.S. 502 (1993).

47 . Under McDonnell - Douglas , Petitioner has the burden of

establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima f acie case is

established, Respondent has the burden of articulat ing some

legitimate, non - discriminatory reason for the action taken

against Petitioner. It is a burden of production, not

persuasion. If a non - discriminatory reason is offered by

Respondent, the burden shifts back to Petitioner to demonstrate

that the offered reason is merely a pretext for discrimination.

As the Supreme Court stated, before finding discrimination

" [t]he factfinder must believe the plaintiff ' s explanation of

intentional discr imination. " Hicks , 509 U.S. at 519.

48 . In order to establish a prima facie case, Petitioner

must prove : (1) she is a member of a protected class; (2) she

was subject to an adverse employment action; (3) her employer

treated similarly situated employee s who were not members of the

protected class more favorably; and (4) she was qualified for

the job or job benefit at issue. Gillis v. G a. Dep ' t of Corr . ,

400 F.3d 883 , 887 (11th Cir. 2005) .

4 9. Petition er is an African - American woman and is a

member of a protected class . She suffered an adverse employment

action, in that she was not permitted to advance to a position

other than cashier . A ssuming that her two - year work history as

a cashier for Respondent successfully demonstrated her

qualification , des pite the decline in her performance in the

third year, the critical third element was not met.

50 . Petitioner must show that the employees who were not

members of her protected class were otherwise " similarly -

situated in all relevant aspects. " Knight v . Baptist Hosp. of

Miami, Inc. , 330 F.3d 1313, 1316. " The comparator must be

nearly identical to the petitioner, to prevent courts from

second - guessing a reasonable decision by the employer. " Wilson

v. B/E Aero., Inc. , 376 F.3d 1079, 1091 (11th Cir. 2004 ). In

other words, Petitioner must be " matched with persons having

similar job - related characteristics who were similarly situated "

to Petitioner. MacPherson v. Univ. of Montevello , 922 F.2d 766,

775 (11th Cir. 1991).

51 . Petitioner failed to show that Respondent treated

similarly situated employees w ho were not members of her

protected class more favorably. Petitioner offered no testimony

or other evidence that any person placed in a sales position was

a man. She offered no testimony or other evidence that

Respondent otherwise treated men more favor ably. While

Petitioner did testif y that she observed some white employees

" hired off the street " into sales positions, there was no

evidence as to the identity of these individuals, or any

evidence that these persons were in any way similarly situated

to Petitioner. Petitioner had put in a written request for

transfer before the procedures changed and later never applied

for a new position using the new online system . Petitioner

admitted that she was not aware if anyone else had applied under

either the old or new procedure s . Petitioner failed to identify

any cashier, of any race, color, or gender , who had been moved

to a sales position though Petitioner was not . Mere conclusory

allegations and assertions are not sufficient to meet

Petitioner ' s burden. See Earley v. Champion Int . Corp . , 907 F.

2d 1077 , 1081 (11th Cir. 1990 ).

52 . Petitioner failed to demonstrate a prima facie case of

discrimination on the basis of race, color or gender.

53 . Even assuming that Petitioner had established a prima

facie case of discrimination, Respondent articulated a

legitimate non - discriminatory reason for not moving Petitioner

into a sales position. Respondent met that burden of production

with the testimony of Mr. Walker and Ms. Benjamin that Lowe ' s

needed cashiers a nd that Petitioner would not be moved until

that shortage was addressed.

54 . Petitioner offered no evidence to suggest that

Respondent ' s reason for not moving Petitioner w as simply a

pretext for unlawful discrimination. See Young v. Gen . Food

Corp. , 840 F.2d 825, 830 (11th Cir. 1988)( " Once a legitimate,

nondiscriminatory reason for dismissal is put forth by the

employer, the burden returns to the plaintiff to prove by

significant probative evidence that the proffered reason is a

pretext for discriminatio n. " ) .

55 . The evidence showed that Petitioner had been told that

Respondent planned on mov ing her out of the cashier position to

the home décor department, a " promise " that was n ever fulfilled.

Under these circumstances, it might be anticipated that the

dashed expectations of Petitioner might result in a discontented

employee . However, Respondent presented a plausible business

reason for the decision not to move Petitioner , and there was no

evidence that the true motive was actually discrimination. The

decision to leave Petitioner in the cashier position may have

been wrong , or even unfair, but there was no evidence that

Respondent ' s decision had anything to do with Petitioner ' s race,

color, or gender . Similarly, Respondent ' s technique of

correcting Pe titioner not by discussing violations with her

first, at the time they occurred, but rather advising her of

them only at the time she was being " written - up " might not be

the management approach most likely to inspire improved employee

behaviors. There was no evidence, however, that this technique

was used only with Petitioner, or that this approach had

anything to do with Petitioner ' s race, color, or gender.

56 . The law is not concerned with whether an employment

decision is fair or reasonable, but only with whether it was

motivated by unlawful animus. See Nix v. WLCY Radio/Rahall

Commc ' ns , 738 F.2d 1181, 1187 (11th Cir. 1984) .

57 . Petitioner offered the Decision of Appeals Referee as

proof that she did not engage in misconduct. However, the

conclusio n o f the Appeals Referee that Lowe ' s failed to prove

misconduct in that proceeding is not binding or relevant to this

hearing. The standard for proving " misconduct " under the

Unemployment Compensation law is different and more stringent

than the standard for proving misconduct as a " nondiscriminatory

reason " for Petitioner ' s dismissal that is applicable here.

Retaliation Claim

58 . While the checkbox for alleging a cla im of retaliation

in Petitioner ' s original filing with the Florida Commission on

Human Relations was not checked, h er Petition for Relief alleged

a retaliatory discharge. The Florida Commission on Human

Relations has stated that o nly those claims fairly encompassed

within the complaint filed with the Commission can be the

subject of an admi nistrative hearing or subsequent award of

relief to a complainant by the Commission. Pamphile v. Fedex ,

Case No. 2010 - 1893 ( FCHR Nov . 3, 2011 ) .

5 9. The evidence did not show retaliation. The court in

Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922, (Fla. 5th DCA

2009), described the elements necessa ry to establish a prima

facie case of retaliation under section 760.10(7). T he

Petitioner must demonstrate that: (1) she engaged in a

statutorily protected activity; (2) she suffered an adverse

employment action; and (3) th at the adverse employment actio n

was causally related to the protected activity.

60 . Section 760.10(7), provides in relevant part, " It is

an unlawful emplo yment practice for an employer . . . to

discriminate against any person because that person has opposed

any practice which is an unlawful employment practice under this

section, or because that person has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this section. "

6 1 . T he re is no evidence of retaliatory dischar ge. The

evidence showed a few isolated complaints related to customer ' s

making racial slurs , and no evidence that the persons making the

decision to terminate Petitioner ' s employment were even aware of

these complaints. The evidence showed , to the contra ry, a

history of customer complaints and other policy violations that

were the basis for Respondent ' s action.

RECOMMENDATION

Upon consideration of the above findings of fact and

conclusions of law, it is

RECOMMENDED:

That the Florida Commission on Hu man Relatio ns enter a

final order dismissing Petitioner ' s complaint.

DONE AND ENTERED this 27 th day of January , 2012 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administ rative Hearings

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 27 th day of January, 2012.

COPIES FURNISHED:

Melissa Drayton

1421 Southwest 27th Avenue No. 2106

Gainesville, Florida 34471

Charles E. Williams, Esquire

Constangy, Brooks and Smith LLP

100 North Tampa Street, Suite 3350

Tampa, Florida 33601

Denise C rawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 submit 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.