13-003717 Tanya Chun vs. Dillard's Status: Closed Recommended Order on Thursday, June 19, 2014.

Summary: Employee did not prove her age was the reason that she wasn't hired. Employer showed comparative merits, specifically differences in retail experience, were the reason for hiring decision.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TANYA CHUN,

Petitioner,

vs. Case No. 13 - 3717

DILLARD Ó S,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Div ision of Administrative Hearings (Division) heard this case by

video teleconference on March 11, 2014, at sites in Tampa and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Michael S. Kimm, Esquire

Thomas W. Park, Esquire

Kimm Law Firm

Suite 106

333 Sylvan Avenue

Englewood Cliffs, New Jersey 07632

For Respondent: Ignacio J. Garcia, Esquire

Vanessa Patel, Esquire

Ogletree, Deakins, Nash,

Smoak and Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

S TATEMENT OF THE ISSUE

The is s ue p re s e nted for d e te r m i n a t i on is w h e ther R e spond e nt,

Dillard Ó s, disc r i m inat e d a g a inst P e t i t i on e r, Tanya Chun, b a s e d on

h e r a g e , in vio l a t i on of s ec t i on 760.101, F lorida S tatutes

(201 2 ) , 1/ w h e n it did not hire her for a s a l e s a s soci a te posit i on.

PRELIMINARY STATEMENT

Ms. Chun sought employment at Dillard Ó s on June 7, 201 2 .

She was interviewed fo r one of several open positions . B ut she

was not hired. On March 22, 2013, Ms. Chun filed a charge in

which she alleged Dillard Ó s dis criminated against her because of

her age when it did not hire her. Specifically , she claimed

that Dillard Ó s did not hire her because management thought she

was too old.

The Florida Commission on Human Relations (Commission)

investigated the charge. On August 22, 2013, the Commission

issued its determination that no reasonable cause exist ed to

believe that an unlawful employment practice occurred and

dismissed the charge.

Ms. Chun filed her Petition for Relief with the Commission

on September 25, 2013 . The Commission referred the matter to

the Division for assignment of an Administrative Law Judge to

conduct a formal administrative hearing. The undersigned

originally scheduled the final hearing for November 25, 2013. A

motion for continuance was gra nted, and the hearing was

rescheduled to March 11, 2014. The undersigned conducted the

hearing as re - scheduled . The parties appeared and were

represented by counsel.

Ms. Chun testified on her own behalf. She presented one

additional witness, Donald Fran kenfeld, an economist who

testified about damages. Petitioner Ó s Exhibits 1 through 21

were admitted into evidence.

Dillard Ó s presented the testimony of Walter Soto, a s tore

m anager for Dillard Ó s. Mr. Soto interviewed Ms. Chun and made

the decision not to hire her. Respondent Ó s Exhibits 6,

11 through 1 5, 18, 20, 28 through 30, 32, and 33 were admitted

into evidence. The following excerpts from the deposition of

Walter Soto were admitted into evidence. Page 31, lines 9

through 11 and 19 through 25; Page 33, lines 13 through 15; and

page 59, lines 14 through 24.

A T ranscript of the final hearing was ordered and filed.

The parties timely filed proposed recommended orders that have

been considered in the preparation of this R ecommended Order.

FINDING S OF FA CT

1. Ms. Chun was born April 4, 1957.

2. Ms. Chun applied for a position as a sales associate at

Dillard Ó s Department Store No. 209 in Lakeland , Florida , on

June 7, 2012. At the time, she was 55 years old. Ms. Chun

completed the employment application at a kiosk in the store

linked to Dillard Ó s personnel system. Ms. Chun Ó s application

disclosed only two periods of employment. The most recent was

with Golf Plus, Inc. , as a bookkeeper handling accounts

receivable and accounts payable from January 1998 to May 2012.

The other was employment at Macy Ó s in New York City from

April 1993 to October 1994 in clothing sales and customer

services as a retail sales associate.

3 . At the time , the Lakeland Dillard Ó s store had five

openings -- two in cosmetics, two in ladies Ó shoes, and one in

men Ó s shoes. At all times relevant to this proceeding , Walter

Soto was operation sales manager at the store with authority to

hire people to fill the openings.

4 . Mr. Soto interviewed Ms. Chun and seven other applicants

for t he five positions. During the interview and hiring process,

Mr. Soto relied upon the information the applicants provided in

their applications and the interviews.

5 . Mr. Soto hired five of the applicants. He did not hire

Ms. Chun.

6 . During Ms. Chun Ó s interview, Mr. Soto asked her a number

of questions about Macy Ó s sales procedures and common sales

procedures and practices. Ms. Chun was not familiar with common

concepts , such as sales per hour and items per transaction.

These are concepts with which someone with retail experience and

knowledge should be familiar.

7 . The five people Mr. Soto hired are Emil Pancorbo,

Angelique Schoenmakers, Taylor Swallow, Ashley Thirion, and David

Tilton. All were younger than Ms. Chun, although

Ms. Schoenmakers w as only three years younger.

8 . The information available to Mr. Soto about Emil

Pancorbo, which he relied upon, indicated that Mr. Pancorbo had

recent retail experience at large retailers, JCPenney from

October 2008 to April 2011 , and Guitar Center from April 2011 to

September 2011. Mr. Soto considered this experience in deciding

to hire Mr. Pancorbo , instead of Ms. Chun.

9 . The information available to Mr. Soto about Angelique

Schoenmakers, which he relied upon, indicated that she had recent

retail exp erience as a counter manager for Elizabeth Arden and

that she worked for Macy Ó s from October 2010 to April 2012.

Ms. Schoenmakers was recruited to work for Dillard Ó s. Mr. Soto

considered Ms. Schoenmakers Ó employment history in deciding to

hire Ms. Schoen makers , instead of Ms. Chun. Ms. Schoenmakers was

born January 15, 1960, making her only three years younger than

Ms. Chun.

10. The information available to Mr. Soto about Taylor

Swallow, which he relied upon, indicated she had recent retail

experience, w orking for Kohl Ó s from August 2011 to June 2012.

Ms. Swallow also had cosmetic experience. She had applied makeup

on clients. Mr. Soto considered Ms. Swallow Ó s employment history

in deciding to hire Ms. Swallow , instead of Ms. Chun.

1 1. The information available to Mr. Soto about Ashley

Thirion, which he relied upon, indicate d she had recent retail

experience working at a Clinique cosmetics counter at Macy Ó s from

June 2011 to November 2011. Clinique is a cosmetics line that

Dillard Ó s also carries. Mr. Soto considered Ms. Thirion Ó s

employment history in deciding to hire Ms. Thirion , instead of

Ms. Chun.

1 2. The information available to Mr. Soto about David

Tilton, which he relied upon, indicated that Mr. Tilton had

recent retail experience at a large ret ailer, Bealls from

May 2010 to May 2012. Mr. Tilton worked in the shoe department

for Bealls. Mr. Soto considered Mr. Tilton Ó s employment history

in deciding to hire Mr. Tilton , instead of Ms. Chun .

1 3. Based on the information from the applications an d

interviews available to him, Mr. Soto made a fair and rational

decision to hire applicants oth er than Ms. Chun. In particular ,

the fact that the retail experience of each of the applicants was

more recent than that of Ms. Chun supports Mr. Soto Ó s decisi on.

All of the applicants , except Ms. Swallow and Ms. Thirion , also

had more retail experience than Ms. Chun. Ms. Swallow and

Ms. Thirion both had cosmetics experience, and two of the

positions that Mr. Soto was filling were for the cosmetics

department.

1 4. The Dillard Ó s employment procedure includes preparing

an applicant summary for each individual interviewed. For the

hiring cycle involved here, eight of the applicant summaries,

including Ms. Chun Ó s, indicate the person was hired.

1 5. In order for t he DillardÓs system to permit obtaining a

background check, Mr. Soto had to change an applicant Ó s status on

the a pplicant s ummaries to Ð hired . Ñ

1 6 . A t the time , Mr. Soto was not following the Dillard Ó s

procedure of only conducting a background check for an employee

after the employee was hired. He did not think the procedure was

fair to the applicants, who may be hired and then Ð un - hired Ñ

after the background check. Mr. Soto chose to conduct background

checks before extending job offers.

1 7. The status on Ms. Chun Ó s applicant summary states

Ð hired. Ñ But she was not hired, just as Ricky Davis and William

Guadalupe, whose summaries state Ð hired, Ñ were not hired. The

status for all the applicants sa id Ð hired , Ñ only because Mr. Soto

change d the status in ord er to run a background check.

1 8. If Dillard Ó s hires an employee, a Basic Employee

Information sheet is prepared. There is no Basic Employee Sheet

for Tanya Chun because she was not hired. There are Basic

Employee Information sheets for Emil Pancorbo, An gelique

Schoenmakers, Taylor Swallow, Ashley Thirion, and David Tilton.

1 9. If an employee is hired, Mr. Soto conducts reference

checks. He did not conduct a reference check for Ms. Chun

because she was not hired.

20. M s. Chun maintains that Mr. Soto told her at the

interview Ó s conclusion that she was hired and that they agreed to

a start date and compensation of $10.00 per hour with full

medical and dental insurance.

2 1. She also maintains that Mr. Soto told her she would

undergo a routine background ch eck and requested that she sign a

consent form and provide her identification card for the

background check.

2 2. Ms. Chun say s that Mr. Soto stated that she did not

Ð look that old Ñ after he looked at her identification . She also

claims he then said he had to talk to someone else and left the

room for about five minutes.

2 3. Mr. Soto denies Ms. Chun Ó s descriptions of the

conversation.

2 4. Ms. Chun , according to her own testimony, called for

Mr. Soto a few times in the days following the interview to check

on her employment status . She was correctly told that he had

been transferred.

2 5. On June 18, 2012, Ms. Chun sent a letter with the

following text to Mr. Soto :

I am writing to inquire the status of my

employment application and I would like to

receive y our written response.

Early last week, I applied for employment at

Human Resources. The next day I was called

in for an interview by you and when we met,

before you offered a position you stated

that I seemed to be a good candidate, and

requested my iden tification and social

security card, made photocopies, then stated

that you will do a background check. As you

reviewed my identification papers, your

tenor changed and you stated that you will

get back to me. I am writing to ask the

status.

I would lik e to request a copy of the

documents I completed, as I do not have them

for myself -- both the application and the

background disclosure form. And I would

like to know why my identification with date

of birth was requested before I was offered

a position, a nd why my identification became

the basis of your change of discussion.

Thank you for your prompt attention.

2 6. She did not receive a response. On February 28, 2013,

Ms. Chun sent another letter, this one to the Dillard Ó s Human

Resource Department. It states:

I wrote the attached letter [June 18, 2012,

letter] to your company more than six

months ago, and I have received no

response.

My discussion with Walter at the interview,

before being requested to provide my ID

showing my age, was that I was goin g to be

hired. Then, when my ID revealed my age I

was told Ð we will get back to you Ñ and I

have requested an explanation and copies of

the documents pertaining to my application,

but you have totally disregarded my letter.

I am writing to reiterate my re quest, and I

request that you respond within five

business days.

2 7. Neither letter, both of which are specific and

articulate, includes the claim Ms. Chun now makes that Mr. Soto

said she did not Ð look that old Ñ after seeing her identification.

2 8. Dilla rd Ó s did not respond until March 11, 2013. A

woman named Ð Arlie Ñ called that day and told Ms. Chun it was

Dillard Ó s policy to obtain identification and again advised that

Mr. Soto had been transferred to another location.

2 9. The weight of the credible , p ersuasive evidence does

not establish Ms. Chun Ó s version of the events. The factors

resulting in this determination include th e fact that she

testified that Mr. Soto told her she was hired and that they

agreed upon a start date. Yet, she also testifie d t hat she

called several times to check on the status of her application.

Calling to check on the application Ó s status is inconsistent with

having accepted a job and having agreed to a start date. If

Ms. Chun had been offered and accepted a job, she would have

reported for work, not called to check on the status of her

application.

30. In addition, Mr. Soto Ó s testimony about the process and

the events is consistent with the documents for the applicants he

interviewed.

3 1. F inally, Ms. Chun did not make her very specific claim

about what Mr. Soto said , Ð you don Ó t look that old, Ñ in either of

her letters or her initial Complaint of Discrimination filed with

the Commission.

3 2. From April to November of 2013, Mr. Soto hired at least

ten individuals born in 1957, like Ms. Chun, or born earlier.

This is persuasive evidence corroborating Mr. Soto Ó s testimony

that he does not weigh an applicant Ó s age against the applicant

when making his hiring decisions.

3 3. Mr. Soto hired five applicants other than Ms. Chun

b ecause he found their qualifications superior for the open

positions. Ms. Chun Ó s age was not a factor in Mr. Soto Ó s

decision.

CONCLUSIONS OF LAW

3 4. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties. §§ 120.569 and 120.57(1), Fla . Stat . (201 3 ) .

3 5. Ms. Chun must prove her claim that Dillard Ó s

discriminated against her by a preponderance of the evidence.

Dep Ó t of Banking & Fin. v. Osborne Stern & Co., Inc. , 670 So. 2d

932 (Fla. 1996).

3 6 . Sections 760.10(1)(a) and (b) make it unlawful for an

employer to discriminate against an applicant or employee because

of the individual Ó s age. Sunbeam Television Corp. v. Mitzel ,

37 Fla. L. Weekly D183 (Fla. 3 r d DCA 2012); Miami - Dade Cnty . v.

Eghbal , 54 So. 3d 525 (Fla. 3 r d DCA 2011), reh. D enied , No. 3D10 -

1596 (Fla. 3d DCA 2011), rev. denied , 71 So. 3d 117 (Fla. 2011);

Bratcher v. City of High Springs , Case No. 11 - 2999 (Fla. DOAH

Sept. 28, 2011), rejected in part , Case No. 2011 - 358, Final Order

No. 11 - 91 (Fla. FCHR Dec. 7, 2011).

3 7. S ection 760.11(7) permits a party who receives a Ð no

cause Ñ determination to request a formal administrative hearing

before the Division. Ð If the administrative law judge finds that

a violation of the Florida Civil Rights Act of 1992 has occurred,

he or she shall issue an appropriate recommended order to the

commission prohibiting the practice and recommending affirmative

relief from the effects of the practice, including back pay. Ñ

Id.

3 8. The Florida Legislature pattern ed chapter 760 after

Title VII of the Civil Rights Act of 1964, as amended.

Consequently, Florida courts look to federal case law when

interpreting c hapter 760. Valenzuela v . GlobeGround N. Am., LLC ,

18 So. 3d 17 (Fla. 3rd DCA 2009).

3 9. A party may prov e unlawful discrimination through

either Ð direct or circumstantial evidence of discrimination. Ñ

City of Hollywood v. Hogan , 986 So. 2d 634, 641 (Fla. 4th DCA

2008), reh . d enied , City of Hollywood v. Hogan , Case No. 4D07 - 392

(Fla. Dist. Ct. App. 4th Dist. Aug. 21, 2008) . Direct evidence

is something like a discriminatory statement by a supervisor that

requires no interpretation or inferences to manifest the

discrimination. Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th

Cir. 1999). The record does not e stablish by the weight of the

credible, persuasive direct evidence that Dillard Ó s discriminated

against Ms. Chun because of h er age.

40. Florida and federal courts apply the McDonnell - Douglas

v. Green 2/ process to analyze circumstantial evidence of

employm ent discrimination. This process requires a party to

establish a prima facie case of discrimination by a preponderance

of the evidence. A prima facie case creates a presumption of

discrimination. The burden of evidence production then shifts to

the empl oyer to offer a legitimate, clear, and reasonably

specific non - discriminatory reason for the adverse employment

action. If the employer meets that burden, the presumption and

the McDonnell - Douglas framework disappear. The employee may

prove that the legi timate reasons were a pretext. The ultimate

burden of proving intentional discrimination remains with the

employee. City of Hollywood v. Hogan , supra ; Valenzuela v .

GlobeGround N. Am., LLC , supra at 21 .

41. The Fourth District Court of Appeal described the

elements of a prima facie showing as follows:

The plaintiff must first make a prima facie

showing of discriminatory treatment. He or

she does that by proving: 1) the plaintiff

is a member of a protected class, i.e., at

least forty years of age; 2) t he plaintiff

is otherwise qualified for the positions

sought; 3) the plaintiff was rejected for

the position; 4) the position was filled by

a worker who was substantially younger than

the plaintiff. Reeves , 530 U.S. at 142 ;

McDonnell Douglas , 411 U.S. at 802 ;

O Ó Connor. This may also be accomplished by

showing direct evidence of discrimination

such as a discriminatory statement by the

decision - maker. Damon v. Fleming

Supermarkets of Fla. , Inc., 196 F.3d 1354,

1359 (11th Cir. 1999) .

City of Hollywood v. H ogan , supra . 3/

42. The evidence proves the four elements of the

McDonnell - Douglas test. In light of Ms. Chun Ó s age and claim

that Dillard Ó s discriminated against her in favor of younger

applicants, the protected class of individuals at least 55 years

of a ge may be used in this analysis. 4/ Ms. Chun is a member of

the protected class. She qualified for the position and was

rejected. All of the people hire d for the position s were younger

than Ms. Chun. The facts support a prima facie case of age

discrimin ation.

4 3. The weight of the persuasive, credible testimony,

however , establishes that the superior qualifications of the

applicants hired w ere the reason they were hired and that

Ms. Chun Ó s age was not a factor. Dillard Ó s has proven a

non - discriminatory explanation for not hiring Ms. Chun. Cooper

v. Southern Co. , 390 F.3d 695, 725 (11th Cir. 2004); see also

Reeves v. Sanderson Plumbing Prods. Inc. , 120 S. Ct. 2097, 2106

(2000).

44. There is no persuasive, credible evidence that the

reasons given for hiri ng applicants other than Ms. Chun are a

pretext for not hiring her.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations deny Ms. Chun Ó s Petition for Relief.

DONE AN D ENTERED this 19th day of June , 2014 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 19th day of June , 2014 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (201 2 ),

unless oth erwise noted.

2/ In McDonnell - Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973), the Supreme Court established the

order and allocation of proof for discrimination cases.

Hollywood v. Hogan , 986 So. 2d 634, 641 (Fla. 4th DCA 2008),

reh. d enied , City of Hollywood v. Hogan , Case No. 4D07 - 392.

3/ The Florida Commission on Human Relations holds in final

orders, like the one in Bratcher v. City of High Springs , that

Florida law prohibits discrimination on account of any age, not

just over 40. This makes the rationality of using the

McDonnell - Douglas analytical process questionable. Effectively,

application of the Commission's interpretation coupled with use

of the McDonnell - Douglas process would create a protected class

consisti ng only of people born in the same year, if not on the

same day , as the complaining employee. That does not become an

issue here since there is no persuasive evidence of age - based

discrimination, and Ms. Chun maintained that the discrimination

was in favo r of a younger employee.

4/ See Endnote 3.

COPIES FURNISHED:

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Ignacio J. Garcia, Esquire

Vanessa Patel, Esquire

Ogletree, Deakins, Nash,

Smoak and Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

Michael S. Kimm, Esquire

Thomas W. Park, Esquire

Kimm Law Firm

Suite 106

333 Sylvan Avenue

Englewood Cliffs, New Jersey 07632

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recom mended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.