15-002010 Cassandra D. Acevedo Gaggi vs. Jc Penney Headquarters Status: Closed Recommended Order on Wednesday, October 21, 2015.

Summary: Evidence did not show termination due to sex or pregnancy. Complaint of Employment Discrimination filed two days late (367th day) and was untimely.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASSANDRA D. ACEVEDO GAGGI,

Petitioner,

vs. Case No. 15 - 2010

JC PENNEY HEADQUARTERS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice , a final hearing in this matter was held

before Diane Cleavinger, Administrative Law Judge of the Division

of Administrative Hearing s , on July 2, 2015 , in Panama City,

Florida.

APPEARANCES

For Petitioner: Robert L. Thirston , II, Esquire

Thirston Law Firm

Po st Office Box 19617

Panama City Beach, Florida 32 417

For Respondent : Derek Benjamin Lipscombe, Esquire

JC Penn e y Cor poration

6501 Legacy Drive, M ail S tation 1108

Plano, Texas 75024

STATEMENT OF THE ISSUE S

The issue s in this proceeding are wheth er Respondent

committed an unlawful employment practice against Petitioner in

violation of the Florida Civil Rights Act , and whether

PetitionerÓs Complaint of Employment Discrimination was timely

filed .

PRELIMINARY STATEMENT

On October 27, 2014 , Petitio ner , Cassandra D. Acevedo Gaggi

(Petitioner or Gaggi) , filed a Complaint of Employment

Discrimination against Respondent, JC Penn e y Headquarters

(Respondent or Penn e y), with the Flori da Commission on Human

Relations (FCHR). The Complaint alleged that R esp ondent

discriminated against Petitioner on the basis of se x by

terminating her empl oyment with Respondent because she was

pregnant.

FCHR investigated the complaint. On March 12, 2015, it

issued a Notice of Determination finding no cause to believe that

an unlawful employment practice had occurred. The Notice also

advised Petitioner of her right to file a Petition for Relief.

On April 13, 2015, Petitioner filed a Petition for Relief with

FCHR. Thereafter, the Petition for Relief was forwarded to the

Di vision of Administrative Hearings (DOAH ) for formal hearing.

At the hearing, Petitioner testified on her own behalf and

offered one exhibit which was admitted into evidence. Respondent

presented the testimony of four witnesses and offered four

exhibits w hi ch were admitted into evidence.

After the hearing , the Transcript of the hearing was filed

July 23, 2015. Petitioner and Respondent filed Proposed

Recommended Orders on August 4, 2015 and August 9 , 2015,

respectively.

FINDING S OF FACT

1. Res ponden t operates a retail store located in Panama

City Beach, Florida. At the time , William Todd Collins was the

store manager.

2. Petitioner is female. Around October 2011, Petitioner

was first employed with Respondent in Puerto Rico as a jewelry

sales expe rt, L evel II . In October 2012, she transferred to

RespondentÓs Panama City Beach store as a L evel II, jewelry sales

expert. To wards the beginning of August 2013, Petitioner learned

that she was pregnant. Shortly thereafter, she started

displaying sympto ms of her pregnancy and experienced dizziness

from not eating due to her pregnancy . She was terminated on

October 25, 2013 .

3. During her employment with Respondent, Petitioner

performed her duties well and was not disciplined by Respondent

until the i ncident that led to her termination. Additionally,

the evidence demonstrated that PetitionerÓs pregnancy was

accommodated by allowing her breaks and to sit down as needed.

She was also allowed to eat snacks as needed.

4 . On October 22, 2013, the store had closed for the

evening. Petitioner and other sales associates were putting

merchandise away and closing dow n the registers throughout the

s tore. While standing at one of the sales counters, Petitioner

was feeling dizzy from not eating, picked up a G odiva chocolate

bar from the storeÓs inventory , and began to eat it. T he

Department Supervisor Mindy Watson saw her eating the chocolate

bar and asked Petitioner what she was doing. Petitioner

responded , Ðwhat does it look like IÓ m doing. IÓm eating a c andy

bar.Ñ

5 . Thereafter, Ms. Watson told Petitioner she needed to pay

$4 for the chocolate bar. A discussion about the price of the

chocolate bar ensued but , contrary to PetitionerÓs claim that she

offered to pay for the chocolate bar, the evidence sh owed that

she did no t offer to pay for the chocolate bar. The evidence was

clear that it would have been easy to open a sales register so

that Petitioner could pay for the chocolate with her credit card ,

which she had with her.

6. Instead, Petitioner w alked away from Ms. Watson and said

she was going to place the wrapper in the vault as a reminder to

pay for the candy bar. When Petitioner walked away with the

chocolate bar, Ms. Watson informed Human Resources Supervisor

Kelly Black about Petitioner not paying for the chocolate bar.

At about the same time, Ms. Black approached the area where

Petitioner was and saw Customer Service Specialist Pamela Wells

also approaching the same area. Ms. Black heard Ms. Wells say to

Petitioner , Ðoh you have chocolate , Ñ to which Petitioner

responded , Ðyes, and I stole it.Ñ Once a ll the a ssociates were

gone fo r the day , Ms. Watson and Ms. Black checked the vault and

the Fine Jewelry trash ca ns , but could not find the chocolate

wrapper .

7. Ms. Black called Mr. Collin s that night and reported the

incident. Additionally, b oth Ms. Black and Ms. Watson sent an

email to Mr. Collins detailing these events .

8 . The day after the incident, Mr. Collins began an

investigation. During the investigation , h e interviewed

Ms . Wats on and Ms. Black , as well as other associates who were

working the evening of October 22 , 2013 . Mr. Collins also

learned that Petiti oner was seen eating a Godiva c hocolate bar

from the storeÓs inventory s everal weeks before the

October 22 , 2013 , incident. With that report, Mr. Collins

checked PetitionerÓs associate files to see whethe r she had

purchased any chocolate over the last three months and to

determine if she had purchased the chocolate bar from October 22 ,

2013 . There was no record of Petitioner paying for any

chocolate.

9 . On October 25, 2013 , at 9:30 a.m. , Petitioner returned

to work. She did not pay fo r the chocolate bar either before or

during her shift , even though , contrary to her claim at hearing

that she could not pay for the chocolat e during work, she had the

ability to do so. After she did not pay for the chocolate bar

during her shift, a round 3:30 p.m. , Sarah Menchaca, the manager

on duty, told Petitioner that Mr. Collins, the store manager,

wanted to speak to her. Petitioner went into Mr. Collins Ó office

and was terminated due to Misuse of Property/Assets.

1 0 . At the time of her termination , Petitioner signed

dismissal papers agreeing to a s ummary of the events on

October 22 , 201 3 , and the reason for her termination. The

dismi ssal papers did not mention PetitionerÓs pregnancy and

dizziness as the reason she took the candy bar. However, at the

same meeting, Pe titioner also wrote another two - paged detailed

statement where she mentioned her pregnancy, the dizziness, and

the fact that she had not eaten for hours.

11 . As indicated, Petitione r was terminated on

October 25, 2013 , and clearly was aware she had suffered an

adverse employment action on that day . Thereafter, Petitioner

obtained a Technical Assistance Questionnaire from FCHR. The

questionnaire makes it clear on p age 1 that it is not a

substi tute for filing an actual complaint with FCHR in a timely

manner. It states, ÐREMEMBER, a charge of employment

discrimination must be filed within 365 days of the alleged act

of dis criminationÑ. (emphasis in original) .

12. In this case, it is clear that PetitionerÓs complaint

was filed with FCHR on October 27, 2014 , 367 days after she was

terminated by Respondent. As such, her clai ms are time - barred

and should be dismissed as a m atter of law.

13 . Even assuming that PetitionerÓs complaint was timely,

t he better evidence establishes that Respondent terminated

PetitionerÓs employment after a reasonable investigation

determined that she took a Godiva chocolate bar from inventory

an d failed to pay for it. Petitioner provided no testimony or

other evidence that other store personnel were allowed to take

chocolate bars and not pay for them or that such individuals were

not terminated for theft. Additionally, there was no evidence

tha t Respondent discriminated against women who were pregnant or

had difficult pregnancies. In fact, the evidence showed that

Respondent employed pregnant women and made a ccommodations for

such pregnancies when needed. Given these facts, the Petition

for Re lief should be dismissed.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2015 ).

15 . The Florida Civil Rights Act (FC RA) in section 760.10,

Florida Statutes, states in pertinent part as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire an individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

16 . The Florida Civil Right s Act was patterned after

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 , et

seq. As such, FCHR and Florida courts have determined federal

case law interpreting Title VII is applicable to cases arising

under FCRA. See Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d

17 (Fla. 3d D CA 2009); Green v. Burger King Corp. , 728 So. 2d

369, 370 - 371 (Fla. 3d DCA 1999); Fla. State Univ. v. Sondel , 685

So. 2d 923 (Fla. 1st DCA 1996); and Brand v. Fla. Power Corp. ,

633 So. 2d 504 (Fla. 1st DCA 1994).

17 . Under FCRA, Petitioner has the burden to establish by a

preponderance of the evidence that she was the subject of

discrimination by Respondent. In order to carry her burden of

proof, Petitioner can establish a case of discrimination through

direct or circumstantial evidence. See Holifield v. Reno , 115

F.3d 1555, 1562 (11th Cir. 1997 ).

18 . Direct evidence of discrimination is evidence that, if

believed, establishes the existence of discriminatory intent

behind an employment decision without inference or presumption.

Maynard v. B d . o f Regen ts , 342 F.3d 1281, 1289 (11th Cir. 2003).

Direct evidence is composed of Ðonly the most blatant remarks,

whose intent could be nothing other than to discriminateÑ on the

basis of some impermissible factor. Evidence that only suggests

discrimination, or t hat is subject to more than one

interpretation, is not direct evidence. See Schoenf eld v.

Babbitt , 168 F . 3d 1257, 1266 (11th Cir. 1999) , and Carter v.

Three Springs Residential Treatment , 132 F.3d 635, 462 (11th Cir.

1998). Direct evidence is evidence th at, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption and must in some way relate to the

adverse actions of the employer. Denney v. City of Albany , 247

F.3d 1172, 1183 (11th Cir. 2001); see Jones v. BE&K EngÓg, Inc. ,

146 Fed. Appx . 356, 358 - 359 (11th Cir. 2005) (ÐIn order to

constitute direct evidence, the evidence must directly relate in

time and subject to the adverse employment action at issue.Ñ);

see also Standard v. A.B.E.L. Servs., Inc. , 161 F.3 d 1318 (11th

Cir. 1998 ) (concluding that the statement , ÐweÓll burn his black

a**" was not direct evidence where it was made two and a half

years prior to the employeeÓs termination). See also Hamilt on v.

Southland Christian Sch. , Inc. , 680 F. 3d 1316 (11th Cir. 2012)

and Rojas v . Fl a . , 285 F . 3d 1339 (11th Cir. 2002)

19 . Herein, Petitioner presented no direct evidence of

discrimi natory intent on the part of Respondent. Therefore,

Petitioner must establish her case through inferential and

circumstantial pro of. Walker v. Prudential Prop. & Cas. Ins.

Co. , 286 F.3d 1270, 1274 (11th Cir. 2002) ; Kline v. Tenn. Valley

Auth. , 128 F.3d 337, 348 (6th Cir. 1997); Shealy v. City of

Albany , 89 F.3d 804, 806 (11th Cir. 1996) .

20 . Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the shifting burden

analysis established by the United States Supreme Court in

McDonnell Douglas v. Green , 411 U.S. 792 (1973), and Texas

Department of Community Affairs v. Burdine , 450 U.S. 248 (1 981),

is applied. Under this well - established model of proof, the

complainant bears the initial burden of establishing a prima

facie case of discrimination. When the charging party, i.e.,

Petitioner, is able to make out a prima facie case, the burden to

go forward with the evidence shifts to the employer to articulate

a legitimate, non - discriminatory explanation for the employment

action. See DepÓt of Corr. v. Chandler , 582 So. 2d 1183 (Fla.

1st DCA 1991). Importantly, the employer has the burden of

pro duction, not persuasion, and need only present the finder of

fact with evidence that the decision was non - discriminatory. Id.

See also Alexander v. Fulton Cnty . , 207 F.3d 1303 (11th Cir.

2000). The employee must then come forward with specific

evidence d emonstrating that the reasons given by the employer are

pretexts for discrimination. Schoenfeld v. Babbitt , supra at

1267. The employee must satisfy this burden by showing that a

discriminatory reason more likely than not motivated the

decision, or indir ectly by showing that the proffered reason for

the employment decision is not worthy of belief. DepÓt of Corr.

v. Chandler , supra at 1186; Alexander v. Fulton Cnty. , supra .

2 1 . Notably, Ðalthough the intermediate burdens of

production shift back and fo rth, the ultimate burden of

persuading the trier of fact that the employer intentionally

discriminated against the [Petitioner] remains at all times with

the [Petitioner].Ñ EEOC v. JoeÓs Stone Crabs, Inc. , 296 F.3d

1265, 1273 (11th Cir. 2002); see also By rd v. RT Foods, Inc. , 948

So. 2d 921, 927 (Fla. 4th DCA 2007) (ÐThe ultimate burden of

proving intentional discrimination against the plaintiff remains

with the plaintiff at all times.Ñ). Reeves v. Sanderson Plumbing

Products, Inc. , 530 U.S. 133, 148 (2000 ). See also Pace v.

S. Ry. Sys . , 701 F.2d 1383, 1391 (1 1th Cir. 1983 ) ; Valenzuela v.

GlobeGround N. Am ., LLC , 18 So. 3d 17, 22 - 23 (Fla. 3d DCA 2009 ) .

22. In order to carry her burden in making out a prima

facie case of discrimination under FCRA, P etitioner Ðmust present

sufficient evidence to provide a basis for an inference that [the

protected characteristic] was a factor in the employment

decision.Ñ Ingle v. Specialty Distrib. Co. , 681 F. S upp. 1556,

1559 (N.D. Ga. 1998) (citing Pace , 701 F. 2d at 1387 ) .

2 3 . On the other hand, this proceeding was not halted based

on a summary judgment , but was fully tried before DOAH . Where

the administrative law judge does not halt the proceedings for

Ðlack of a prima facie case and the action has been fully t ried,

it is no longer relevant whether the [Petitioner] actually

established a prima facie case. At that point, the only relevant

inquiry is the ultimate, factual issue of intentional

discriminatio n . . . . [W]hether or not [ Petitioner] actually

establis hed a prima facie case is relevant only in the sense that

a prima facie case constitutes some circumstantial evidence of

intentional discrimination.Ñ Beaver v. Rayonier, Inc. , 200 F. 3d

723, 727 (11th Cir. 1999) ; Green v. Sch. Bd. o f Hillsborough

Cnty. , 25 F.3d 974, 978 (11th Cir. 1994). See also U.S. Postal

Serv. Bd. o f Governors v. Aikens , 460 U.S. 711, 713 - 715 (1983) :

Because this case was fully tried on the

merits, it is surprising to find the parties

and the Court of Appeals still addressing

the ques tion of whether Aikens made out a

prima facie case. We think that by framing

the issue in these terms, they have

unnecessarily evaded the ultimate question

of discrimination vel non . . . . [W]hen

the defendant fails to persuade the district

court to dis miss the action for lack of a

prima facie case, and responds to the

plaintiffÓs proof by offering evidence of

the reason for the plaintiffÓs rejection,

the fact - finder must then decide whether the

rejection was discriminatory within the

meaning of Title VI I. At this stage, the

McDonnell - Burdine presumption Ðdrops from

the case,Ñ and Ðthe factual inquiry proceeds

to a new level of specificity.Ñ

2 4 . In this case, Petitioner alleged that Respondent

discriminated against her on the basis of sex due to her

pregnancy.

2 5 . As indicated, in order to establish a prima facie case

of discrimination based on circumstantial evidence, a plaintiff

must show that he or she: (1) be longs to a protected class,

(2) was qualified to do the job; (3) was subjected to an a dverse

employment action; and, (4) the employer treate d similarly -

situated employees outside the class more favorably.

2 6 . While Petitioner was a member of a protected class

(female), and suffered an adverse employment action

(termination), Petition er presented no evidence that she was

treated differently than others outside her class or that she was

treated differently due to her pregnancy. Further, she produced

no evidence to show that her pregnancy cause d her termination.

27. Additionally , the evidence did not establish that

RespondentÓs legitimate, non - discriminatory reason for

termination was a pretext for discrimination.

28 . As in other discrimination settings, once the employer

has offered a legitimate, nondiscriminatory reason for its

action, the charging party must demonstrate Ðsuch weaknesses,

implausibilityÓs , inconsistencies, incoherencies, or

contradictions in the employerÓs proffered legitimate reasons for

its action that a reasonable fact finder could find [all of those

reaso ns] unworthy of credence.Ñ See Standard v. A.B.E.L. Serv s . ,

Inc. , 161 F.3d 1318, 1333 (11th Cir. 1998). In evaluating the

plausibility of the employerÓs explanation, Ðthe relevant inquiry

is not whether [the employerÓs] proffered reasons were wise,

fair, or correct, but whether [the employer] honestly believed

those reasons and acted in good faith upon those beliefs.Ñ

Stover v. Martinez , 382 F.3d 1064, 1076 (10th Cir. 2004). See

also Valenzuela , 18 So. 3d at 26 (ÐThe inquiry into pretext

centers upon th e employerÓs beliefs, and not the employeeÓs own

perception of [her] performance.Ñ) .

29 . As the court said in Chapman v. AI Transport , 229 F.3d

1012, 1030 (11th Cir. 2000)(en banc):

A plaintiff is not allowed to recast an

employerÓs proffered nondiscr iminatory reasons

or substitute his business judgment for that

of the employer. Provided that the proffered

reason is one that might motivate a reasonable

employer, an employee must meet that reason

head on and rebut it, and the employee cannot

succeed by simply quarreling with the wisdom

of that reason.

3 0 . Moreover, absent evidence of intentional

discrimination, it is not the role of administrative agencies or

the courts to micro - manage internal business decisions. See

Elrod v. Sears, Roebuck & Co. , 9 39 F.2d 1466, 1470 (11th Ci r.

1991) (federal courts do not sit as a Ðsuper - personnel departmentÑ

to reexamine an entityÓs business decisions); Nix v. WLCY

Radio/Rahall Comm cÓns , 738 F.2d 1181, 1187 (11th Cir. 1984)

(Ð[t]he employer may fire an employee for a good reason, a bad

reason, a reason based on erroneous facts, or for no reason at

all, as long as its action is not for a discriminatory reason.Ñ) .

31 . In this case , the evidence only s howed that Petitioner

was a woma n who happened to be pregnant w hen she was legitimately

terminated from employment with Respondent. The evidence did not

show that her termination was based on her gender or her

pregnancy. Given these facts, the Petition for Relief should be

dismissed .

32. Finally, s ection 760.1 1 provides in relevant part:

(1) Any person aggrieved by a violation of

ss. 760.01 - 760 . 10 may file a complaint with

the commission within 365 days of the alleged

violation, naming the employer, employment

agency, labor organi zation, or joint labor -

management committee, or, in the case of an

alleged violation of s. 760.10 (5), the person

responsible for the violati on and describing

the violation . . . .

The evidence was clear that Petitioner did not file her Complaint

o f Empl oyment Discrimination within the 365 - day time period. As

such, the Petition for Relief is time - barred and should be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that t he Florid a Commission of Human

Relations enter a final o rder finding Respondent not guilty of

discrimination and dismissing the Petition for Relief.

DONE AND E N TERED this 21 st day of October , 2015 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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.us

Filed with the Clerk of the

D ivision of Administrative Hearings

this 21st day of October , 2015 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Merrill W. Daily, Esquire

JC Penn ey Headquarters

Mail Station 1111

6501 Legacy Drive

Plano, Texas 75024

Robert L. Thirston, II, Esquire

Thirston Law Firm

Post Office Box 19617

Panama City Beach, Florida 32417

(eServed)

Derek Benjamin Lipscombe, Esquire

JC Penn e y Corporation

6501 Legac y Drive, MS 1108

Plano, Texas 75024

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission of Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eS erved)

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.