12-001119 Tracy Lynn Wright vs. Wal-Mart Status: Closed Recommended Order on Friday, August 31, 2012.

Summary: Petitioner failed to prove her claim of retaliation under section 760.10, Florida Statutes.

Case No. 12-1119

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRACY LYNN WRIGHT, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

WALMART, )

)

Respondent. )

)

)

An administrative hearing was conducted in this case on

June 4, 2012, in Crestview, Florida, before James H. Peterson,

III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Tracy Lynn Wright, pro se

501 Tall Pines Street

Crestview, Florida 32536

For Respondent: Jonathan A. Beckerman, Esquire

Littler Mendelson, P.C.

2 South Biscayne Boulevard

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent, Walmart, discriminated against

Petitioner, Tracy Lynn Wright, in violation of the Florida Civil

Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida

Statutes, by harassing, failing to promote, demoting, and then

discharging her in retaliation for her participation in a class-

action discrimination lawsuit against Walmart.

PRELIMINARY STATEMENT

On February 16, 2012, following receipt and investigation

of Petitioner's complaint (Discrimination Complaint) alleging

that Walmart had discriminated against her in employment in

retaliation for her participation in a class-action lawsuit, the

Commission issued a Determination of No Cause finding that no

reasonable cause exists to believe that an unlawful employment

discrimination practice occurred. A notice of the Commission’s

determination (Notice) was sent to Petitioner on the same date

which notified Petitioner of her right to file a Petition for

Relief for a formal administrative proceeding within 35 days of

the Notice. On March 16, 2012, Petitioner timely filed a

Petition for Relief with the Commission. The Commission

forwarded the Petition for Relief to the Division of

Administrative Hearings on March 27, 2012, for the assignment of

an administrative law judge to conduct an administrative

hearing.

At the administrative hearing held on June 4, 2012,

Petitioner testified on her own behalf and offered 14 exhibits

which were received into evidence as Petitioner's Exhibits P-1

through P-13, and P-7A. Walmart presented the testimony of

Patrick Riley, Timothy Jespersen, Lisa Clayton, Jeremy Moore,

and Stephanie Frain, and offered three exhibits which were

received into evidence as Respondent’s Exhibits R-1 through R-3.

The proceedings were recorded and a Transcript was ordered.

The parties were given 30 days from the filing of the Transcript

within which to submit their proposed recommended orders. An

electronic copy of the Transcript, consisting of one volume, was

filed on June 26, 2012, and the parties timely filed their

respective Proposed Recommended Orders, which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a female who was employed by Walmart as

an associate employee from April 2, 1999, until her termination

on October 11, 2011.

2. Walmart is an employer within the meaning of the

Florida Civil Rights Act of 1992, as amended (chapter 760,

Florida Statutes), and Title VII of the Civil Rights Act of

1964, as amended.

3. In 2006, Petitioner became involved as a member of the

class action discrimination lawsuit against Walmart.

4. As reflected in the Charge of Discrimination which

Petitioner filed with the Florida Commission on Human Relations

on September 28, 2011, the only claim that Petitioner has

asserted against Walmart in this proceeding is unlawful

retaliation by Walmart allegedly based upon Petitioner’s

involvement in that class action discrimination lawsuit against

Walmart.

5. As part of her employment with Walmart, Petitioner was

required to complete a variety of computer-based learning

modules relating to various Walmart policies and procedures.

One of those modules related to Walmart’s “Coaching for

Improvement Policy,” which Petitioner completed on February 22,

2011, with a passing score of 93 percent.

6. According to Walmart’s Coaching for Improvement Policy,

associate employees are subject to four progressive levels of

discipline for employee infractions, including: (1) a verbal

discussion, (2) a verbal coaching, (3) a written coaching, and

(4) a “Decision-Making Day” coaching.

7. The levels of discipline under Walmart’s Coaching for

Improvement Policy are discretionary, and Walmart reserves the

right to skip coaching levels depending upon the nature of the

infraction committed.

8. Under Walmart’s Coaching for Improvement Policy,

associate employees who receive a Decision-Making Day coaching

are given a paid day off to reflect on the alleged infraction

and required to return to work their next scheduled work day

with a written “action plan” for addressing and resolving the

issues raised in the Decision-Making Day coaching, regardless of

whether the associate agrees with management’s assessment of the

alleged infraction.

9. According to the Policy, failure to prepare an

acceptable action plan after receiving a Decision-Making Day

coaching can result in an associate’s immediate termination.

10. Further, under the Policy, associates who receive a

written coaching or a Decision-Making Day coaching are barred

from promotional opportunities for a period of one year

following the receipt of such coaching.

11. During the course of Petitioner’s employment with

Walmart, Petitioner received multiple coachings under Walmart’s

Coaching for Improvement Policy, including, but not limited to:

a verbal coaching on October 14, 2006, for unsafe work

practices; a verbal coaching on October 10, 2010, for poor

customer service; and a written coaching on November 10, 2010,

for engaging in personal business by making a private, personal

telephone call while “on the clock.”

12. Between November 2010 and September 2011, members of

Management at Store #944 in Crestview, Florida, met with

Petitioner on numerous occasions and advised her that her job

performance was below standards.

Petitioner's Termination

13. On September 25, 2011, Petitioner received a Decision-

Making Day Coaching from Assistant Manager Jeremy Moore and

(former) Backroom Supervisor Stephanie Frain for poor job

performance.

14. The Decision-Making Day Coaching addressed various

shortcomings, including Petitioner's alleged failure to complete

assigned tasks, her reliance on other Associates to finish her

own work assignments, and her alleged wandering around the store

instead of staying in her assigned areas until her tasks were

complete.

15. Petitioner responded to the Decision-Making Day

Coaching by stating the following in the “Action Plan” area of

the Coaching document: “I, disagree with the write-up for 9-30-

2011. All I, can do is my best and, if my best isn't good

enough then I, don’t what else I, could say. I’m sorry but I,

will not sign this write-up I, feel I, haven't done anything

wrong.”

16. Upon receipt of Petitioner’s action plan response,

Mr. Moore advised Petitioner that her response did not

constitute an acceptable action plan, and that she would need to

speak to his higher-level manager.

17. Walmart employed Pat Riley as a Store Manager at Store

#944 in Crestview, Florida, from August 1999 to February 2012.

18. Petitioner worked at Store #944 while Mr. Riley was

employed as the Store Manager for that location.

19. After discussing the Decision-Making Day Coaching with

Mr. Moore, Petitioner met with Store Manager Pat Riley and

Ms. Frain. During this meeting, Mr. Riley informed Petitioner

that her action plan was unacceptable, and he gave Petitioner an

opportunity to create a new, acceptable action plan.

20. Mr. Riley invited Petitioner to work with Ms. Frain

for assistance in preparing an acceptable action plan, but

Petitioner adamantly refused to accept assistance from

Ms. Frain.

21. Mr. Riley cautioned Petitioner that failure to prepare

an acceptable action plan would result in termination of her

employment.

22. Although Petitioner was fully aware that failure to

prepare an acceptable action plan would result in the

termination of her employment, Petitioner refused to prepare an

acceptable action plan.

23. Mr. Riley terminated Petitioner’s employment because

she refused to prepare an acceptable action plan in the manner

as required by Walmart’s Coaching for Improvement Policy.

Mr. Riley made the decision to terminate Petitioner’s employment

with Walmart.

24. There is no evidence that Mr. Riley's decision to

terminate Petitioner was influenced by her involvement in a

class-action discrimination lawsuit against Walmart, or that

Mr. Riley or any of Petitioner's supervisors at Walmart were

even aware of Petitioner's involvement in that lawsuit. In

2006, Petitioner joined a lawsuit filed against Walmart.

25. In fact, Petitioner has no personal knowledge and

presented no evidence that any associate or member of Walmart's

management was aware that she joined the class-action lawsuit in

2006 against Walmart. She never personally told any member of

Walmart's management that she had joined the lawsuit against

Walmart in 2006.

26. Mr. Riley had no knowledge of Petitioner joining a

lawsuit against Walmart in 2006, and no knowledge of Petitioner

making any complaints about perceived discrimination,

harassment, or retaliation during the course of her employment

with Walmart.

27. Petitioner’s act of joining a lawsuit against Walmart

in 2006 was never a factor in Mr. Riley’s decision to terminate

Petitioner’s employment.

28. The exclusive basis for Mr. Riley’s decision to

terminate Petitioner’s employment was Petitioner’s failure to

prepare an acceptable action plan despite warning and offer of

assistance in preparing an acceptable action plan.

29. Petitioner’s conclusion that Mr. Riley or any other

member of Walmart's management was aware that she joined a

lawsuit against Walmart in 2006 is mere assumption and

speculation.

Reduction of Time to Retake Assessment Exam

30. In addition to her termination, Petitioner’s

retaliation claim is based, in part, on Walmart’s decision to

reduce the waiting time period by which Walmart Associates may

retake its Supervisory Leadership Assessment exam.

31. Walmart currently employs Timothy Jespersen as a

Market Human Resources Manager, and Mr. Jespersen has held this

position for six years. In this capacity, Mr. Jespersen is the

senior Human Resources manager for seventeen Walmart stores.

32. In August 2010, Walmart instituted a company-wide

reduction in the time Associates must wait to retake its

Supervisory Leadership Assessment exam. This change, which

affected all Associates throughout the company, was based on a

desire to afford Associates with an opportunity to retake the

exam without the burden of a long “wait period.”

33. Mr. Jespersen merely implemented the company-wide

initiative, and there is no recorded evidence that the

initiative is in any way related to Petitioner or her

involvement in a lawsuit. Additionally, Mr. Jesperson had no

knowledge of Petitioner joining a lawsuit filed against Walmart

in 2006.

34. Mr. Jespersen had no knowledge of Petitioner

complaining about perceived discrimination, harassment, or

retaliation at any time during the course of her employment with

Walmart.

35. Petitioner has no facts or credible evidence to

support her assertion that Walmart retaliated against her by

reducing the time-period within which she could retake the

Supervisory Leadership Assessment.

Changes in Petitioner's Job Duties

and Training Issues were not Retaliatory

36. Walmart currently employs Lisa Clayton as a Zone

Managing Supervisor over apparel.

37. Ms. Clayton previously worked as an Inventory Control

Management Team Leader for three years. In that capacity,

Ms. Clayton was Petitioner’s direct supervisor.

38. In or about 2008, Walmart eliminated the job code for

“remix” associates and reclassified them as IMS associates.

This change was made on a company-wide basis and did not affect

the pay rates for former “remix” Associates such as Petitioner.

39. Ms. Clayton frequently asked Petitioner whether she

was ready to begin training, and Petitioner regularly responded

that she was not. When Petitioner notified Ms. Clayton that she

was ready to begin training, Walmart promptly provided the

“Walkie Stacker” training to Petitioner. When Petitioner

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suffered muscle spasms in her chest, the training was suspended

for one week, and then resumed the following week.

40. Ms. Clayton had no knowledge of Petitioner’s joining

of a lawsuit against Walmart in 2006.

41. Petitioner has no personal knowledge of Lisa Clayton

being aware that she joined a lawsuit against Walmart in 2006.

42. Petitioner never personally told Ms. Clayton that she

joined a lawsuit against Walmart in 2006, and she has no

knowledge of anyone else telling Ms. Clayton that she joined a

lawsuit against Walmart in 2006.

43. Petitioner otherwise failed to produce any credible

evidence indicating that her termination or changes in the

conditions in employment were in retaliation for her involvement

in the class-action lawsuit against Walmart, or any other

protected activity.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2011), 1 / and Florida Administrative Code Rule

60Y-4.016(1).

45. The State of Florida, under the legislative scheme

contained in sections 760.01–760.11 and 509.092, Florida

Statutes, known as the Florida Civil Rights Act of 1992 (the

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Act), incorporates and adopts the legal principles and

precedents established in the federal anti-discrimination laws

specifically set forth under Title VII of the Civil Rights Act

of 1964, as amended. 42 U.S.C. § 2000e, et seq .

46. Pursuant to subsection 760.10(1), it is an unlawful

employment practice for an employer to discriminate against a

person because that person has, “opposed any practice which is

an unlawful employment practice” or because that person “has

made a charge . . . under this subsection.”

47. Florida courts have held that because the Act is

patterned after Title VII of the Civil Rights Act of 1964, as

amended, federal case law dealing with Title VII is applicable.

See, e.g. , Fla. Dep't of Cmty. Aff. v. Bryant , 586 So. 2d 1205,

1209 (Fla. 1st DCA 1991).

48. As developed in federal cases, a prima facie case of

discrimination under Title VII may be established by statistical

proof of a pattern of discrimination, or on the basis of direct

evidence which, if believed, would prove the existence of

discrimination without inference or presumption. 2 / Usually,

however, direct evidence is lacking and one seeking to prove

discrimination must rely on circumstantial evidence of

discriminatory intent, using the shifting burden of proof

pattern established in McDonnell Douglas Corp. v. Green ,

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411 U.S. 792 (1973). See Holifield v. Reno , 115 F.3d 1555, 1562

(11th Cir. 1997).

49. Under the shifting burden pattern developed in

McDonnell Douglas :

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to “articulate some legitimate,

nondiscriminatory reason” for its action.

Third, if [Respondent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

U.S. Dep't of Hous. & Urban Dev. v. Blackwell , 908 F.2d 864, 870

(11th Cir. 1990)(housing discrimination claim); accord

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d

DCA 2009)(gender discrimination claim)("Under the McDonnell

Douglas framework, a plaintiff must first establish, by a

preponderance of the evidence, a prima facie case of

discrimination.").

50. Therefore, in order to prevail in his claim against

Walmart, Petitioner must first establish a prima facie case by a

preponderance of the evidence. Id. ; § 120.57(1)(j), Fla. Stat.

("Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure proceedings or except as

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otherwise provided by statute and shall be based exclusively on

the evidence of record and on matters officially recognized.").

51. "Demonstrating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

permit an inference of discrimination." Holifield v. Reno , 115

F.3d 1555, 1562 (11th Cir. 1997); cf. Gross v. Lyons , 763 So. 2d

276, 280 n.1 (Fla. 2000)("A preponderance of the evidence is

'the greater weight of the evidence,' [citation omitted] or

evidence that 'more likely than not' tends to prove a certain

proposition.").

52. In order to demonstrate a prima facie case of

retaliation, Petitioner must show: (1) that she was engaged in

statutorily protected expression or conduct; (2) that she

suffered an adverse employment action; and (3) that there is

some causal relationship between the two events. Holifield , 115

F.3d at 1566.

53. In order to establish a causal link between the

conduct engaged in by Petitioner and the adverse employment

action, Petitioner must at least establish that the employer was

actually aware of the protected expression or conduct at the

time the adverse decision was made. Id.

54. While it is not disputed that Petitioner's

participation as a member of a class-action discrimination

lawsuit against Walmart is protected conduct, Petitioner failed

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to establish that the decision-makers for Walmart had any

knowledge of Petitioner's participation in the lawsuit or that

there was a causal relationship between any alleged protected

conduct and the adverse employment actions.

55. As a result, the evidence failed to demonstrate a

causal connection between Petitioner's participation in the

class-action lawsuit and the adverse employment actions taken

against her. Thus, Petitioner failed to establish a prima facie

case of retaliation.

56. When a Petitioner fails to present a prima facie case

the inquiry ends and the case should be dismissed. Ratliff v.

State , 666 So. 2d 1008, 1013 n.6 (Fla. 1st DCA 1996).

57. Even if Petitioner had established a prima facie case,

Walmart advanced legitimate, non-retaliatory reasons for

Petitioner's disciplines and ultimate termination, as well as

changes in conditions of Petitioner's employment.

58. Once an employer offers a legitimate, non-

discriminatory reason to explain the adverse employment action,

a Petitioner must prove that the proffered reason was pretext

for what actually amounted to discrimination. Id.

59. The only support Petitioner has for Walmart's alleged

discriminatory motives is based upon Petitioner's unsupported

opinion which, standing alone, is insufficient. Cf. Lizardo v.

Denny’s, Inc. , 270 F.3d 94, 104 (2d Cir. 2001)(“Plaintiff’s have

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done little more than cite to their mistreatment and ask the

court to conclude that it must have been [based upon

discrimination]. This is not sufficient.”).

60. In sum, Petitioner failed to prove her Charge of

Discrimination and it is otherwise concluded, based upon the

evidence, that Walmart did not violate the Florida Civil Rights

Act of 1992, and is not liable to Petitioner for discrimination

in employment or retaliation.

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’s Discrimination

Complaint and Petition for Relief consistent with the terms of

this Recommended Order.

DONE AND ENTERED this 31st day of August, 2012, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

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Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of August, 2012.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2011 version. All references to Florida

Administrative Code or federal statutes and rules are to their

current, effective versions.

COPIES FURNISHED :

Tracy Lynn Wright, pro se

501 Tall Pines Street

Crestview, Florida 32536

Jonathan A. Beckerman, Esquire

Littler Mendelson, P.C.

2 South Biscayne Boulevard

Miami, Florida 33131

Denise Crawford, 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.

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