14-002210 Wanda I. Perales vs. Ez Pawn Florida, Inc. Status: Closed Recommended Order on Wednesday, February 25, 2015.

Summary: Petitioner failed to prove that her employer committed an act of discrimination based upon her gender or national origin or retaliated against her in violation of the Florida Civil Rights Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WANDA I. PERALES,

Petitioner,

vs. Case No. 14 - 2210

EZ PAWN FLORIDA, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on December 10 , 2014, in Orlando ,

Florida.

APPEARANCES

For Petitioner: Erich Schuttauf, Esquire

Erich E. Schuttauf Attorney at Law

7901 Kingspointe Parkway , Building 9

Orlando, Florida 32819

For Respondent: Jason Matthew Leo, Esquire

Littler Mendelson, P.C.

111 North Magnolia Avenue , Suite 1250

Orlando, Florid a 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an act of

discrimination against Petitioner on the basis of her gender and

national origin , and subject to retaliation in violation of the

Florida Ci vil Rights Act .

PRELIMINARY STAT EMENT

Respondent EZ Pawn Florida, Inc. ( Ð Respondent Ñ or Ð EZPAWN Ñ )

operates pawnshops throughout Florida and Georgia. Petitioner

was an employee of Respondent, working as a sales and lending

representative at one of its locations in Orlando, Florida.

Peti tioner Ó s employment was terminated on April 11, 2013, after

she violated a company policy by not obtaining the identification

of a customer to whom she was showing a piece of jewelry valued

at more than $500, which resulted in a loss.

On December 20, 2013, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR) alleging that she was discriminated against based upon her

gender and national origin and subject to retaliation.

Respondent submitted a position statement denying all allegations

contained in Petitioner Ó s Charge of Discrimination. After

completing its investigation, FCHR issued a Ð no cause Ñ

determination. Petitioner filed a Petition for Relief on May 15,

2014, electing an administrative hearing to contest disputed

issues of material fact. The final hearing was scheduled and

took place on December 10, 2014, in Orlando, Florida. Prior to

the hearing, the parties filed a Joint Pre - h earing Statement,

which included statements of admitted facts and law.

At the hearing, Petitioner testi fied as a witness.

Petitioner also offered three exhibits, all of which were

admitted into evidence. Respondent presented the testimony of

Joseph Roberts and Aban Basch as witnesses and offered two

exhibits , which were admitted into evidence .

A one - volume Transcript was filed on January 22, 2015 .

Petitioner and Respondent filed their proposed findings of fact

and conclusions of law on January 26, 2015, and January 22, 2015,

respectively .

References to statutes are to Florida Statutes (2014) unless

otherwise noted.

FINDING S OF FACT

1. Petitioner, Wanda I. Perales, was born in Puerto Rico

and moved to the United States in 2008 when she was approximately

32 years old. She has lived in Florida since that time. She

considers her national origin to be Hispanic.

2. Petitioner was hired by EZPAWN in November 2009 as a

sales and lending representative . Her position at EZPAWN was the

first she was able to obtain in the United States after looking

for employment for over a year.

3 . Respondent has policies and procedures in place that

prohibit discrimination on the basis of gender, national origin,

or any other protected characteristics or classes of employees.

Respondent Ó s policies and procedures also prohibit retaliation.

4. Pe titioner received a copy of, and read, the employee

handbook containing all of Respondent Ó s anti - discrimination

policies. She was well aware that EZPAWN had anti - discrimination

and anti - retaliation policies.

5. When Petitioner first began working for Res pondent, she

worked at its Palm Bay Road location in the Melbourne, Florida ,

area. At that time, she received training on Respondent Ó s

employee handbook and about obtaining customer IDs. She was

taught that Ð [w]hen a customer comes to the store to see je welry

and the value is more than $500, we have to ask for one ID, keep

it . . . in the jewelry case. And then we can hand the . . .

jewelry to the customer. Ñ

6. This policy is found in the employee handbook. The

policy states that Class A Misconduct, wh ich Ð may result in

termination of employment on the first occurrence, Ñ includes:

Behavior that creates actual harm or loss to

another person or to the Company ; damage to

Company property or to the property of others

while on Company time or on Company prem ises.

This includes, but is not limited to: . . .

[f]ailure to obtain a customer Ó s ID prior to

allowing the customer to handle jewelry that

is priced at $500 or more (resulting in

loss).

7. Petitioner understood that if she violated this policy

she c ould be subject to discharge or termination.

8. Petitioner testified that the training did not address

what to do if two people came into the store at the same time.

It was her understanding that if a couple came into the store

together, she was only r equired to ask for one ID. Both Joseph

Roberts from Respondent Ó s human resources, and Aban Basch, the

store manager, testified that the policy applies as it is written

and that if a couple come s into the store, the ID must be

received from the person (or persons) to whom the jewelry is

actually handed. One ID is all that is required if only one

member of the couple will handle the jewelry.

9. There is also a sign in the jewelry case at each of

Respondent Ó s locations that states , Ð [a] state issued photo

i dentification is REQUIRED for all jewelry items being shown

valued over $500. Ñ

10. While working in the Palm Bay store in January 2010,

Ð John Ñ (last name unknown by Petitioner) became Petitioner Ó s

supervisor. She alleged that on a few occasions he wanted to

transfer her because of the language barrier. After Petitioner

complained of John Ó s comments, Mr. Roberts, the human resources

business partne r overseeing Central Florida , went to the store to

investigate. Mr. Roberts coached John on his comment s and

provided him with additional training. Petitioner seemed to be

satisfied with these results. John never made derogatory

comments about Puerto Ricans or women. Further, John never took

any adverse employment action against Petitioner.

11. In July 2010, Petitioner requested a transfer to a

store closer to where she lived. This was at her request and was

not disciplinary on the part of her employer . She had never been

written up or disciplined by Respondent while in the Palm Bay

store.

12. Petitioner Ó s transfer request was granted and she moved

to a store located on South Semoran Boulevard in Orlando,

Florida. At the Semoran store, the majority of EZPAWN Ó s

customers (estimated by the manager at 80 - 85 percent ) are

Hispanic. Petitioner communicated with them in Spanish as

necessary for those who only spoke Spanish.

13. Of the 12 employees Petitioner worked with at the

Semoran store, ten of them were Puerto Rican or Hispanic , and

seven were women.

14. At some point, Mr. Basch became Petitioner Ó s

supervi sor. In February 2012, he brought in flowers and

chocol a tes for all the employees for Valentine Ó s Day . Petitioner

rejected the gifts and believed that thereafter, Mr. Basch

changed completely when dealing with her.

15. Petitioner believes Mr. Basch cut her hours on one

occasion because she had rejected the candy and flowers he

brought her and the other employees. Mr. Basch testified he cut

hours because his district manager had directed him to reduce

hours for that week to manage payroll. When she thou gh t

Mr. Basch was being disrespectful, Petitioner called the employee

hotline and made a complaint against him. In response to the

complaint, Mr. Roberts visited the store to investigate, and

P etitioner also spoke with Cindy Bradley, Respondent Ó s Vice

Pre sident of Human Resources. Both Mr. Roberts and Ms. Bradley

found Petitioner Ó s claims to be unsubstantiated.

16. On April 8, 2013, a man and a woman walked into the

Semoran store. Petitioner assumed they were together since they

asked to look at engagem ent rings. The woman gave Petitioner her

photo ID , and Petitioner handed the ring valued at $1,500 to the

man. Upon receiving the ring, the man ran from the store.

Petitioner admitted she gave the ring to a person from whom she

had not secured a photo I D.

17. District Manager Corey Day, Manager Mr. Basch, and

Assistant Manager Valdemar Santos (of Puerto Rican descent) were

in the store when the incident occurred. According to

Petitioner, Mr. Santos ran from the store in pursuit of the

individual who to ok the ring. Petitioner believed that running

after someone who steals from the store is a violation of company

policy. This was contradicted by Messrs . Roberts and Basch who

both said it was important to pursue a thief to be able to tell

the police in w hich direction he or she ran and whether the thief

got into a vehicle which they could later identify to law

enforcement.

18. The only reason given by Petitioner that she was

discriminated against based on her gender is that Mr. Santos, a

male employee, was not terminated for following the shoplifter

out of the store , an act she believed to be in violation of

company policy.

19. Following the incident, Mr. Basch called the police who

came to the store. They approached the suspect, but were not

able t o retrieve the ring because he no longer had it in his

possession. The stolen ring was never returned to EZPAWN.

20. Since Petitioner violated EZPAWN Ó s policy of securing

an ID from any person who is handed a piece of jewelry valued at

more than $500, resulting in a loss of the property, the decision

was made to terminate her employment with Respondent.

Mr. Roberts made the decision to terminate Petitioner Ó s

employment after discussing the matter with M essrs . Day and

Basch. Mr. Roberts testified that the decision to terminate

Petitioner Ó s employment had nothing to do with her national

origin or gender.

21. During Petitioner Ó s next scheduled work shift, Mr. Day

asked to speak with her in the manager Ó s office. Mr. Basch was

also present. Mr. Day told Petitioner that the decision had been

made to terminate her employment after conferring with

M essrs . Roberts and Basch. He told Petitioner that he would give

her a good reference for future employment because he believed

her to be a good employee , who vio lated a company policy that

requires termination. Petitioner did not say anything during the

meeting and left EZPAWN. She did not complain to her bosses

assembled at the meeting that she believed she had been

discriminated against for her gender or natio nal origin.

22. Petitioner testified that no one told her she was

terminated for being Puerto Rican or for being a woman. She

specifically stated she did not believe she had been terminated

because of her Puerto Rican heritage.

23. Petitioner was unab le to identify any other store

employee who had not been terminated for violating the policy

concerning securing a photo ID when showing jewelry with a value

of more than $500. She was aware of another employee named Jose

in a different one of Respondent Ó s stores who had been terminated

for violation of the same policy. Mr. Roberts confirmed

Petitioner Ó s testimony when he testified that every employee who

violated the ID for jewelry policy had been terminated from

employment.

24. Petitioner was aware o f one other employee named

Jessica who left the jewelry case keys on the counter that caused

rings to be stolen. Jessica was not terminated, however, because

the rings had been recovered.

25. While working at EZPAWN, no employee had made

derogatory comme nts to Petitioner about her gender or national

origin. Further, Petitioner had never complained to anyone at

EZPAWN about being discriminated against on the basis of her

gender or national origin. She testified that, if she needed to

make a complaint, sh e was aware of the process for doing so. She

responded Ð yes Ñ when asked if she knew to call the hotline if she

felt she had been discriminated against.

CONCLUSIONS OF LAW

26 . The Division of A dministrative Hearings has

jurisdiction over the subject matte r of this proceeding and the

parties thereto pursuant to sections 120.569, 120.57(1), and

760.11(4)(b), Florida Statutes.

27. Section 760.10(1)(a), Florida Statutes, states as

follows:

(1) It is an unlawful employment practice

for an employer:

(a) To d ischarge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual Ó s race, color, religion, sex,

national origin , age, handicap, or marital

status.

28 . Petitioner is an Ð aggrieved person, Ñ and Respondent is

an Ð employer Ñ within the meaning of section 760.02(10) and (7),

respectively.

29 . The Florida Civil Rights Act (FCRA), sections 760.01

through 760.11, as amen ded, was patterned after Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq . Federal case

law interpreting Title VII is applicable to cases arising under

the FCRA. See Green v. Burger King Corp. , 728 So. 2d 369,

370 - 71 (Fla. 3d DCA 1999) ; FSU v. Sondel , 685 So. 2d 923 (Fla.

1st DCA 1996).

30 . Petitioner has the burden of proving by a preponderance

of the evidence that Respondent has discriminated against her .

See Fla. Dep Ó t of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778

(Fla. 1st DCA 19 81).

31. The United States Supreme Court has established an

analytical framework within which courts should examine claims of

discrimination. In cases alleging discriminatory treatment,

Petitioner has the initial burden of establishing, by a

preponderanc e of the evidence, a prima facie case of

discrimination. St. Mary Ó s Honor Ctr. v. Hicks , 509 U.S. 502

(1993); Combs v. Plantation Patterns , 106 F.3d 1519 (11th Cir.

1997).

32 . To establish a prima facie case of discrimination,

Petitioner must establish t he following: (1) s he is a member of

a protected class; (2) s he suffered an adverse employment action;

(3) that s he received disparate treatment from other similarly -

situated individuals in a non - protected class; and (4) that there

is sufficient evidence of bias to infer a causal connection

between h er gender or national origin and the disparate

treatment.

33 . While the evidence established that Petitioner is a

member of a protected class as a Puerto Rican fe male , and that an

adverse employment action o ccurred, namely, that she was

terminated from her employment, s he failed to prove that

Respondent subjected h er to different treatment for violation of

the clearly expressed company policy due to her gender or

national origin. Petitioner was not able to p rove s he received

disparate treatment from other similarly - situated individuals in

a non - protected class . She was terminated from her employment

because she gave a piece of jewelry valued at more than $500 to a

customer from whom she had not received a ph oto ID. The customer

took the ring and ran from the store. The ring was never

recovered, therefore, the result of the theft was a loss to the

store. Petitioner could identify no other employees whose

similar actions resulted in a loss and who were not t erminated

from employment as a result of the ensuing loss of property by

Respondent. In fact, the testimony at hearing proved that all

other company employees who violated the policy were terminated

from employment when the violation resulted in a loss. In short,

Petitioner proved no causal connection between h er gender or

national origin and the alleged dis criminatory treatment.

34. As to her claim of retaliation, Petitioner is protected

if Ð [s]he has opposed any practice made an unlawful employment

p ractice by this sub - chapter (the opposition clause) or Ò [s]he

has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this

subchapter Ó (the participation clause). Ñ Crawford v. City of

Fairbur n , 479 F. 3d 774 , 777 (11 th Cir. 2007) (quoting 42 U.S.C.

§ 2000e - 3(a)). A petitioner may only establish a prima facie

case of retaliation under the opposition clause of Title VII if

she shows she has a good faith, reasonable belief that the

employer engag ed in unlawful employment practices. Little v.

United Tech., Carr Transicold Div. , 103 F.3d 956, 961 (11th Cir.

1997).

35. Because Petitioner alleges a retaliation claim based on

circumstantial evidence, the burden shifting framework in

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973) applies.

To establish a prima facie case of retaliation, Petitioner must

show that: 1) she was engaged in an activity protected under

Title VII; 2) she suffered an adverse employment action; and

3) there was a causal connection between the protected activity

and the adverse employment action. See Pennington v. City of

Huntsville , 261 F.3d 1262 (11th Cir. 2001).

36. The first element of Petitioner Ó s claim of retaliation

requires her to establish she engaged in statu torily protected

activity. She testified she never complained to anyone at EZPAWN

about feeling discriminated against based upon her Puerto Rican

national origin or gender. She testified she knew how to raise a

complaint, if she had one, through use of t he employee hotline.

Since she admitted she never engaged in protected activity, her

claim for retaliation must fail.

37. Petitioner did complain to Mr. Roberts that her

manager, John, at the Palm Bay Road store wanted to transfer her

due to a language barrier. The complaint was investigated by

Mr. Roberts and that manager was instructed on how to behave in

such situations. Even if this were protected activity, there is

no causal connection between it and Petitioner Ó s ultimate

termination for violatin g the company Ó s policy concerning handing

over jewelry to customers without first securing a photo ID. The

only logical conclusion is that Petitioner has failed to

participate in protected activity so as to bring a retaliation

claim. Other than a stateme nt made by Petitioner at hearing that

Mr. Basch had allegedly been rude to her on one occasion, causing

her to make a hotline complaint, there is no evidence that this

had anything to do with her gender or national origin, or any

other protected characteri stic. She testified it could have been

because she rejected the chocolates and flowers brought by

Mr. Basch to all the employees around Valentine Ó s Day, but that

is pure speculation on Petitioner Ó s part, not borne out by the

evidence at hearing. Petition er failed to connect this to her

termination and, therefore, her retaliation claim must fail.

3 8 . Based upon the lack of evidence that Petitioner was

terminated based upon discrimination or that she was treated

differently for her violation of company pol icy than other

employees who were not members of a protected class, Petitioner

failed to establish a prima facie case against Respondent for

racial discrimination. Further, she has failed to prove she was

terminated as retaliation for any complaints she m ade or actions

she took against her employer. Accordingly, Respondent cannot be

found to have committed the Ð unlawful employment practice Ñ

alleged in the employment discrimination charge, which is the

subject of this proceeding. Therefore, the employment

discrimination charge should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding Respondent did not commit the

Ð unlawfu l employment practice Ñ alleged by Petitioner and

dismissing Petitioner Ó s employment discrimination charge.

DONE AND ENTERED this 25th day of February , 201 5 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Admin istrative 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.us

Filed with the Clerk of the

Division of Administrative Hearin gs

this 25th day of February , 2015 .

COPIES FURNISHED:

Erich Schuttauf, Esquire

Erich E. Schuttauf Attorney at Law

7901 Kingspointe Parkway , Building 9

Orlando, Florida 32819

(eServed)

Laura Steege, Associate General Counsel

2801 Via Fortuna , Suite 460

Austin, Texas 78746

Jason Matthew Leo, Esquire

Littler Mendelson, P.C.

111 North Magnolia Avenue , Suite 1250

Orlando, Florida 32801

(eServed)

Cheyanne Michelle Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 11 0

Tallahassee, Florida 323 99

Tammy Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions with in

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.