12-004015 Dr. Sharon E. Mcintosh vs. Wal-Mart Stores East Status: Closed Recommended Order on Wednesday, September 4, 2013.

Summary: Petitioner failed to meet her burden of proving that Respondent discriminated against her in violation of the Florida Civil Rights Act of 1992.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. SHARON E. MCINTOSH ,

Petitioner ,

vs. Case No. 12 - 4015

WAL - MART STORES EAST ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, the final heari ng was held on May 22 and

July 8 , 201 3 , by video teleconference before Administrative Law

Judge Linzie F. Bog a n between sites in S e bastian and Tallahassee,

Florida .

APPEARANCES

For Petitioner: Sharon E. McIntosh

4565 32nd Avenue

Vero Beach, Florida 32967

For Respondent: Jonathan Beckerman, Esquire

Theresa M. Vreeland, Esquire

Littler Mendelson, PC

Wells Fargo Center

333 Southeas t 2nd Avenue, Suite 2700

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment Charge of Discrimination filed

by Petitioner on May 31, 2012 .

PRELI MINARY STATEMENT

On May 31, 2012 , Petitioner, Sharon E. McIntosh

(Petitioner), filed an Employment Complaint of Discrimination

with the Florida Commission on Human Relations (FCHR), which

alleges that her employer, Walmart Stores East (Respondent),

violat ed section 760.10, Florida Statutes (201 1 ), 1/ by

discriminating against her on the basis of race , color, and

disability . Petitioner also states in her complaint of

discrimination that Respondent retaliated against her after she

complained about a co - worke r ' s racially insensitive comments .

The allegations were investigated, and on November 21, 2012 ,

FCHR issued its Determination: No Cause. A Petition for Relief

was filed by Petitioner on December 14, 2012 .

FCHR transmitted the case to the Division of Ad ministrative

Hearing s on or about December 17, 2012 . A Notice of Hearing by

Video Teleconference was issued setting this case for fi nal

hearing on February 27, 2013 . Following the granting of a

continuance, the final hearing was rescheduled for May 22, 2 013.

The final hearing commenced on May 22, 2013, but was not

completed. The final hearing concluded on July 8, 2013.

At the hearing, Petitioner testified on her own behalf and

presen ted the testimony of Michele Payne, Angela Ward, Kelsey

Arjona, Linda H arrison, Barbara Muh, Lisa Kinne, Kristen Carl,

and Elizabeth McIntosh . Respondent presented the testimony of

Doug Fellers, Tony Almieda, Karen Milz, and Greathel Favreau.

Petitioner ' s Exhibits A through C, C2, D2, D3, E, E2 through E13,

F1, F2, G, J, K, L, O, O2, P, P2 and Q were admitted into

evidence. Respondent ' s Exhibits 1 through 3 3 were admitted into

evidence. At Petitioner ' s request, the undersigned took official

recognition of section 465.016(1)(d)3., Florida Statues.

A four - volume Transcrip t of the proceeding was filed with

the Division of Administrativ e Hearings on August 9, 2013 . The

parties timely filed p roposed r ecommended o rders, which have been

considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. For more tha n ten years, Petitioner has worked as a

pharmacist. On April 18, 2011, Respondent extended to Petitioner

an offer of employment to work as a " licensed staff pharmacist "

at store 1220 in Orlando, Florida. Petitioner accepted

Respondent ' s offer. Petitione r, as a licensed staff pharmacist,

was paid $56.46 per hour. In her position as licensed staff

pharmacist, Petitioner was supervised by Doug Fellers.

A. Placing a face with a name

2. In July 2011, Petitioner desired promotion to a full -

time salaried position at Respondent ' s store 3538 in Viera,

Florida. According to Petitioner, her immediate supervisor Doug

Fellers, recommended to his supervisor Kelly Altman, regional

pharmacy director, that Petitioner be promoted. Petitioner

contends that Kelly Alt man initially supported her bid for

promotion but withdrew his support upon meeting Petitioner and

seeing that she is African - American. Petitioner believes that

Mr. Altman harbored feelings of discriminatory animus towards her

because when they initially met , Mr. Altman told Petitioner that

he had heard a lot about her, that it was good to finally " put a

face with a name, " and looked at her in a manner that she

described as being with " quiet disgust. " The evidence does not

establish that Mr. Altman harbor ed any discriminatory animus

towards Petitioner. Contrary to Petitioner ' s contention,

Mr. Altman was very supportive of Petitioner as evidenced by the

fact that on July 25, 2011, he approved the recommendation for

Petitioner ' s promotion and took no actio n against Petitioner to

thwart or otherwise interfere with her promotion.

3. In August 2011, Petitioner began working in a full - time

salaried position as a licensed staff pharmacist at Respondent ' s

store 3538 in Viera, Florida. In her new position, Petit ioner

earned an annual base salary of $119,516.80.

B. Store 3538 and " Buckwheat "

4. Petitioner alleges that while working at store 3538 she

was subjected to racially insensitive remarks. Specifically,

Petitioner alleges that her co - worker, Lauren Har mon, often in

response to questions from Petitioner, would respond by saying

" o ' tay. " 2/ Petitioner took offense to Ms. Harmon 's " speaking to

[her] like ' [B]uckwheat. '"

5. It is undisputed that Ms. Harmon, who by all accounts is

Caucasian, was employed a t store 3538 prior to Petitioner ' s

arrival. According to several witnesses, Ms. Harmon, well in

advance of Petitioner ' s transfer to the store, would often say

" o ' tay " when responding to statements made by co - workers and

would do so regardless of the race of the co - worker. Although

Petitioner was offended by Ms. Harmon ' s use of " o ' tay, " other

employees did not find " o ' tay " to be objectionable and merely

thought that Ms. Harmon was " speaking in baby talk. "

Nevertheless, Petitioner subjectively believed Ms. Harmon ' s

remarks to be highly offensive and racially motivated.

6. Petitioner formally complained to her superiors about

Ms. Harmon and her use of " o ' tay. " An investigation was

conducted and once it was determined that Ms. Harmon had in fact

said " o ' ta y, " she was instructed by management to immediately

cease and desist saying " o ' tay " because Petitioner found the

pseudo - word offensive. Ms. Harmon complied with the cease and

desist directive, except for one isolated instance when she

inadvertently repeat ed the offensive language. Respondent, upon

learning of Petitioner ' s concerns about the pejorative nature of

the pseudo - word " o ' tay, " took prompt and appropriate remedial

action to address Petitioner ' s concerns.

C. Pharmacist - in - charge

7. Michelle Gra ziani was the pharmacy manager when

Petitioner arrived at store 3538 in Viera, Florida. During this

same period, Ms. Graziani also served as the store ' s pharmacist -

in - charge (PIC). 3/ The PIC is responsible for ensuring the

security of the pharmacy and co mpliance with all laws and related

rules.

8. In late December 2011, Ms. Graziani ceased working at

store 3538 , there by leaving the store in need of a PIC. Around

the time of Ms. Graziani ' s departure, Doug Fellers approached

Petitioner and asked if she wo uld be willing to temporarily serve

as the PIC for store 3538. As part of this same conversation,

Mr. Fellers advised Petitioner that if she desired, she could

also apply for the head pharmacy position previously occupied by

Ms. Graziani. Petitioner acce pted Mr. Feller ' s offer and started

working as the PIC for store 3538 in late December 2011.

9. It is typically the case that the pharmacy manager for a

particular store will also serve as the PIC. In instances where

a pharmacy is temporarily without a manager, a PIC will be

designated to serve on an interim basis. Respondent, through its

personnel system, assigns classification codes to positions

occupied by employees of the company. The personnel

classification system does not however contain a class ification

code for PIC. When an employee serves as PIC on a temporary

basis, Respondent classifies these employees as " Assistant

Pharmacy Managers " and " Assistant Pharmacists. " 4/

10. Petitioner asserts that when she was asked by Doug

Fellers to serve as temporary PIC for store 3538, he also offered

her promotion to the permanent position of assistant pharmacy

manager. Doug Fellers denies that Petitioner was either made or

offered the position of permanent assistant pharmacy manager for

store 3538.

11 . On January 13, 2012, Petitioner signed an employment

offer from Respondent wherein she accepted the position of

Assistant Pharmacy Manager at store 3538. Petitioner ' s annual

salary was increased to $121,596.80. The document signed by

Petitioner is sil ent on the question of whether the appointment

to a ssistant p harmacy m anager was temporary or permanent.

However, one of the supporting documents used to generate the

assistant pharmacy manager offer sheet signed by Petitioner

states that " [t]his is just an offer to go from Salaried Staff to

PIC at 3538 until we finalize the RxMgr position. She is just

receiving the $1.00 more increase and job code to Asst MGR[.] " 5/

12. The credible evidence establishes that Petitioner was

temporarily placed in the posit ion of a ssistant p harmacy

m anager/PIC at store 3538 until such time as a new store pharmacy

manager/PIC could be hired by Respondent. Respondent eventually

hired a store pharmacy manager following Ms. Graziani ' s departure

and upon doing so, Petitioner was relieved of the responsibility

of serving as PIC for store 3538. Although Petitioner was

relieved of her duties as PIC, her salary continued at the same

level and her official job title, to this day, remains a ssistant

p harmacist. 6/ Respondent removed Pe titioner from the PIC position

for non - discriminatory, legitimate business reasons.

D. Vacant pharmacy store manager ' s position

13. During the period when Petitioner served as PIC for

store 3538, Respondent accepted applications for the vacant

pharmacy manager ' s position. It is undisputed that Petitioner

did not apply for the manager ' s position. Petitioner claims that

she " was harassed to the point where [she] couldn ' t apply for the

position. " The evidence does not support Petitioner ' s

allegation.

1 4. Petitioner cites numerous incidents that, in her mind,

establish impermissible discrimination. One instance of alleged

discrimination occurred when Doug Fellers visited Petitioner ' s

store for the purpose of having her sign the contract that

temporaril y promoted her to the position of assistant pharmacy

manager. Petitioner alleges that several employees complained to

Doug Fellers that Petitioner was bragging about being the favored

candidate for the vacant pharmacy manager ' s position. According

to Pet itioner, when Doug Fellers became aware of Petitioner ' s

alleged boasting, he admonished Petitioner by telling her that

she was not guaranteed the position of pharmacy manager.

Petitioner responded to Doug Fellers by denying that she had made

such statement s regarding the vacant position. Petitioner

internalized the admonishment from Doug Fellers as an indication

that he would not favorably consider her for the vacant position.

Doug Fellers credibly testified , however, that he harbored no

such ill will tow ards Petitioner and would have favorably

considered her application for pharmacy manager had she applied.

15. Another instance of alleged discrimination occurred

when Petitioner was instructed by her supervisor to retrieve from

a waste bin information th at may have contained sensitive patient

information. Petitioner believes that she was instructed to

retrieve the patient information from the waste bin because of

her race. Respondent testified that there were problems at store

3538 with patient identify ing information being improperly

disposed of by individuals in the pharmacy. As the PIC,

Petitioner was responsible for ensuring that patient

identif ication information was properly protected. Respondent

instructed Petitioner to personally review the con tents of the

waste bin to ensure that private patient information was not

contained therein. This directive to Petitioner was in

furtherance of Respondent ' s legitimate business interests

associated with protecting patient privacy. While Petitioner

took o ffense at being charged with this task, there is no

evidence indicating that Respondent ' s directive to Petitioner to

filter the contents of the waste bin was motivated by racial

animus.

16. Petitioner cites as additional evidence of

impermissible discrim ination, the fact that during the time she

served as PIC, Respondent placed her under excessive scrutiny

when it relocated the pharmacy ' s hazardous waste bin to a

location where the bin was constantly monitored by video

surveillance. Respondent explained that its risk management

protocols require that the hazardous waste bin be continuously

monitored by video surveillance and that the bin at Petitioner ' s

store was relocated in order to bring it in to compliance with the

established protocol. Petitioner off ered no credible evidence

demonstrating that Respondent ' s asserted reason is pre - textual or

that Respondent applied the policy in such a way as to single out

Petitioner.

17. Petitioner also claims that the contents of the

hazardous waste bin were given e xtra scrutiny by Respondent while

she served as PIC. However, credible testimony was offered

explaining that the level of scrutiny given by Respondent to the

hazardous waste bin during Petitioner ' s tenure as PIC was the

same as it was prior to Petitioner ' s serving as PIC. Even if the

level of scrutiny of the contents of the hazardous waste bin was

intensified during Petitioner ' s service as PIC, Petitioner

offered no credible evidence establishing that the alleged

heightened scrutiny resulted from impermis sible discriminatory

animus.

18. Finally, Petitioner alleges that Respondent harassed

her by manipulating the tracking data that it uses to monitor the

productivity of its pharmacists. Petitioner ' s theory as to this

issue seems to be that Respondent man ipulated Petitioner ' s

productivity numbers in an attempt to dissuade her from applying

for the vacant pharmacy manager ' s position previously referenced.

In response to this allegation, Respondent offered credible

evidence that the data in question may be used for myriad

reasons , but it is not used in and of itself as a basis for

taking disciplinary or other forms of employment action against

its pharmacists. While there may have been anomalies with some

of Petitioner ' s productivity data, there is no credi ble evidence

establishing that the data was manipulated by Respondent for

impermissible discriminatory reasons.

E. Alleged leg disability

19. Petitioner suffers from venous insufficiency that

causes her legs to " jerk, hurt, burn, and swell. " Petition er

claims that Respondent discriminated against her " because of

[her] leg disability. "

20. In early April 2012, Petitioner, after having worked

" 3 days straight at Walmart, " suffered, while at home, a leg

cramp that caused her to fall and injure her ar m. Petitioner

missed two weeks of work as a consequence of the injury to her

arm. During her period of convalescence, Michael Judd contacted

Petitioner and inquired about the cause of her injury and the

status of her recovery. In response to Mr. Judd ' s inquiry,

Petitioner explained that she had a leg cramp that caused her to

fall and injure herself. Petitioner, neither before, nor during

Mr. Judd ' s inquiry, disclosed that she suffers from venous

insufficiency.

21. When Petitioner returned to work on or about April 15,

2012, Mr. Judd again inquired about the circumstances surrounding

Petitioner ' s arm injury and the status of her recovery. The

following day, April 16, 2012, Petitioner was instructed by

Respondent to complete a number of outstanding train ing modules

and finalize paperwork for insurance - related payroll deductions.

Petitioner believes that the enumerated actions collectively

establish that she was harassed because of her venous

insufficiency. Contrary to Petitioner ' s assertion, the above -

d escribed events do not establish a reasonably objective hostile

or abusive work environment.

F. Retaliation

22. Petitioner contends that Respondent retaliated against

her after she complained about Lauren Harmon. Petitioner claims

that Respondent elevat ed its scrutiny of the hazardous materials

( hazmat ) bin following Petitioner ' s work shifts, that Respondent

launched a bogus investigation against her for an alleged HIPPA

violation, and that two of Respondent ' s store managers were

whispering with a third party but stopped doing so once they

realized that Petitioner was present.

23. Respondent credibly explained that it moved the hazmat

bin in view of the surveillance camera as required by its loss

prevention/risk management policy. While it is true that

Respondent investigated Petitioner for an alleged HIPPA

violation, the investigation completely exonerated Petitioner of

any wrongdoing and no adverse employment action resulted to

Petitioner as a consequence of the investigation. Finally,

Petitioner, by her own admission, has absolutely no idea what the

store managers were whispering about when they became aware of

Petitioner ' s presence. Petitioner has failed to offer any

credible evidence to support her claim of retaliation.

CONCLUSIONS OF LAW

24 . Th e Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 & 120.57, Fla. Stat. (201 3 ).

25 . Section 760.10(1) provides in part that it is an

unlawful employment practice for an employer to dischar ge or

otherwise discriminate against an individual on the basis of

" race , color . . . [o]r handicap . . . . " Section 760.10(7)

provides in part that " it is an unlawful employment practice for

an employer . . . to discriminate against any person because th at

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. "

2 6 . FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of section 760.10. See Valenzuela v. GlobeGround N.

Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009); Brand v. Fla.

Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

27. Petitioner asserts that Respondent ' s discriminatory

harassment created a hostile working environment. " A hostile

work environment claim is comprised of a series of separate acts

that collectively cons titute one unlawful employment practice. "

Amtrak v. Morgan , 536 U.S. 101, 117 (2002).

28. In order to be actionable, harassment based on race,

color, or disability, must be so severe or pervasive that the

harassment alters the conditions of employment an d creates a

hostile work environment. " W hen the workplace is permeated with

discriminatory intimidation, ridicule, and insult, that [are]

sufficiently severe or pervasive to alter the conditions of the

victim ' s employment and create an abusive working env iro nment,

Title VII is violated. " Harris v. Forklift Sys. , 510 U.S. 17, 21

(1993). In determining whether an actionable hostile work

environment claim exists, the courts look to " all the

circumstances, " including " the frequency of the discriminatory

cond uct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee ' s work performance. "

Id. at 23.

29. In evaluating " all the circumstances " of the instant

mat ter as contained in the Findings of Fact set forth herein,

Petitioner has failed to meet her burden of proving that the

alleged discrimination in her workplace was so severe or

pervasive that it reasonably created a hostile or abusive work

environment. Fi nally, a closing note about Ms. Harmon is

warranted. As previously stated, Ms. Harmon used the pseudo - word

" o ' tay " when responding to Petitioner. Although use of the

pseudo - word " o ' tay, " and contextually related matters, 7/ may be

reasonably considered of fensive in some instances, it is not so

considered in the present case.

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 finding that Respond ent, Walmart

Stores East , did not commit an unlawful employment practice as

alleged by Petitioner, Dr. Sharon E. McIntosh , and denying

Petitioner ' s Charge of Discrimination.

DONE AND ENTERED this 4th day of September , 2013 , in

Tallahassee, Leon County, Flo rida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of September , 2013 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to 2011,

unless otherwise indicated.

2/ It is generally known that Buckwheat was one of the characters

in the Our Gang/Little Rascals series. In the Our Gang episodes

where the character Buckwheat appeared, he was known to say

"o'tay," as opposed to the more grammatically correct "o'kay," in

response to statements made by other cast memb ers.

3/ See § 465.022(11), Fla . Stat.

4/ Respondent's offer letter to Petitioner dated January 12,

2012, refers to the position as Assistant Pharmacy Manager and

Respondent's Associate History Profile references Petitioner's

position as "Asst. Pharmaci st."

5/ Petitioner's salary actually increased by more than the stated

amount of one dollar.

6/ Since August 6, 2012, Petitioner has been on medical leave of

absence.

7/ Richardson v. New York State Dep ' t of Corr. Servs. , 180 F.3d

426 (2d Cir. 1999) (plaintiff established prima facie case of

harassment where supervisors and co - workers allegedly called

African - American employees "Buckwheats" and other pejorative

terms).

COPIES FURNISHED:

Violet Denise Crawford, Agency Clerk

Florida Commission on Hum an Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Sharon E. McIntosh

4565 32nd Avenue

Vero Beach, Florida 32967

Theresa M. Vreeland, Esquire

Littler Mendelson, PC

Wells Fargo Center

333 Southeast 2nd Avenue, Suite 2700

Miami, Flo rida 33131

Jonathan Beckerman, Esquire

Littler Mendelson, PC

Wells Fargo Center

333 Southeast 2nd Avenue, Suite 2700

Miami, Florida 33131

Michelle Wilson, Executive Director

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallah assee, Florida 32301

Cheyanne Costella, General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions wit hin

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.