15-003942 Mary L. Smith vs. Wal-Mart Stores, East, Lp Status: Closed Recommended Order on Friday, March 25, 2016.

Summary: Petitioner failed to prove her claims of discrimination in employment based on race, age, and retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY L. SMITH ,

Petitioner,

vs. Case No. 15 - 3942

WAL - MART STORES, EAST, LP ,

Respondent.

/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

January 21, 2016 , in Tallahassee , Florida, before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Mary L. Smith, pro se

3137 Atwater Road

Chattahoochee, Florida 323 24

For Respond ent: Jonathan A. Beckerman, Esquire

Littler Mendelson , PC

Wells Fargo Center

333 Southeast 2 nd Avenue, Suite 2700

Miami, Florida 33131 - 2187

STATEMENT OF THE ISSUES

Whether Respondent , Wal - Mart Stores, East, LP ( Respondent

or Wal - Mart ) , violated the Florida Civil Rights Act of 1992,

sections 760.01 Î 760.11 and 509.092, Florida Statutes, 1/ by

discriminating against Petitioner , Mary L. Smith (Petitioner) ,

based upon PetitionerÓs race , age, or in retaliation for her

participation in protected activity.

PRELIMINARY STATEMENT

On March 3, 2014, Petitioner filed a n Employment Charge of

Discrimination (Complaint) with the Florida Commission on Human

Relations (Commission or FCHR ) alleging that Respondent had

discriminated and retaliated against her based on her race and

age in violation of the Florida Civil Rights Act. The

Commission investigated the Complaint, which was assigned FCHR

No. 201 500596 .

Following completion of its investigation, the CommissionÓs

executive director issued a Determination dated J une 18 , 2015 ,

stating that that Ðno reasonable cause exists to believe that an

unlawful employment practice occurred.Ñ The next day, June 19,

2015 , the Commission sent Petitioner a Notice of Determination :

No Cause (Notice) which advised Petitioner of h er right to file

a Petition for Relief for an administrative proceeding on her

Complaint within 35 days of the Notice, or a civil action within

one year from the Notice. Petitioner elected to pursue

administrative remedies and timely filed a Petition for Relief

with FCHR on or about July 10, 2015. FCHR referred the matter

to the D ivisi on of Administrative Hearings ( DOAH) and the case

was assigned to the undersigned to conduct an administrative

hearing pursuant to chapter 120, Florida Statutes.

The final hearing was first scheduled to be held on

September 23 , 2015, but was continued until January 21, 201 6 .

At the final hearing, Petitioner testified on her own behalf and

offered a composite exhibit of seven photographs received into

evidence as Exhibit P - 1. Respondent presented the testimony of

one witness, Sandra Davis, and offered five exhibits which were

received into evidence as Exhibits R - 1, R - 4, R - 6, R - 7, and R - 9.

The proceedings were recorded and a transcript was ordered.

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

within which to file proposed recommen ded orders. A one - volume

Transcript of the proceeding was filed February 8, 2016.

Respondent timely filed its Proposed Recommended Order on

March 9, 2016, which was considered in preparing this

Recommended Order. Petitioner did not file a proposed

recommended order.

F INDINGS OF FACT

1. As she describes herself, Petitioner, Mary L. Smith, is

an 82 - year - old, Black American woman.

2. Petitioner has worked as an a ssociate for Walmart since

2004 in Store 488 located in Quincy, Florida.

3. During her employment with Walmart, Petitioner received

training about WalmartÓs core beliefs and open door policies.

4. Throughout her employment at Walmart, Petitioner

received wage increases and was not disciplined for the two

incidents related to Pe titionerÓs Complaint , as further detailed

below .

5. I n October 2014, while helping unload freight , Walmart

Assistant Manager Saundra Davis saw Petitioner yelling at two

other Walmart associates. Ms. Davis instructed Petitioner to go

to the office, b ut Petitioner refused to do so. Next, Ms. Davis

instructed Petitioner to clock out for the remainder o f her

shift. During th e discussion, Petitioner informed Ms. Davis

that she would leave the store only if she were escorted by

police. Petitioner did no t clock out. Rather, she refused to

leave and completed her shift.

6. Assistant Manager Davis considered PetitionerÓs refusal

to follow instructions an act of insubordination. Petitioner ,

however, was not reprimanded for this incident.

7. Subsequently, in January 2015, all associates,

including Petitioner, were instructed to go retrieve shopping

carts left i n the parking lot by customers. Petitioner refused

to comply with that request. Instead, Petitioner became visibly

upset and told eve ryone that she would not go outside.

8. Afterward, Petitioner reiterated that she was not going

to do as instructed by management. Once again, Ms. Davis

instructed Petitioner to clock out for the remainder of her

shift, but Petitioner refused. This time , Walmart management

called police to escort Petitioner out of the store.

9. As before, Petitioner was not reprimanded for the

Januar y 16, 2015 , incident.

10. Petitioner never complained to Walmart management that

she was being discriminated against based on her race, age, or

membership i n any other protected category. Assistant Manager

Davis denied harboring any discriminatory animus tow ards

Petitioner, and the evidence did not otherwise demonstrate any

such animus on the part of Ms. Davis or Walmar t.

C ONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

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

Statutes (2011), and Flori da Administrative Code Rule 60Y -

4.016(1).

12. The State of Florida, under the legislative scheme

contained in sections 760.01 Î 760.11 and 509.092, Florida

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

or the Act ) . FCRA 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. See 42 U.S.C. § 2000e, et seq .

Further, as noted by the Florida Fourth District Court of Appeal

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

2008):

The Florida Civil Rights Act of 1992 (FCRA)

prohibits age discrimination in the

workplace. See § 760.10(1)(a), Fla.

Stat. (2007). I t follows federal law, which

prohibits age discrimination through the Age

Discrimin ation in Employment Act (ADEA).

29 U.S.C. § 623 . Fed eral case law

interpreting Title VII and the ADEA applies

to cases arising under the FCRA. Brown

Distrib. Co. of W. Palm Beach v.

Marcell , 890 So. 2d 1227, 1230 n.1 (Fla. 4th

DCA 2005).

986 So . 2d at 641.

13. Section 760.10(2)(b) of the Act prohibits

d iscrimination in the workplace. Among other things, the Act

makes it unlawful for an employer:

To limit, segregate, or classify employees

or applicants for employment in any way

which would deprive or tend to deprive any

individual of employment opportuni ties, or

adversely affect any individualÓs status as

an employee, because of such individualÓs

race, color, religion, sex, pregnancy,

national origin, age, handicap, or marital

status.

§ 760.10(b)(2) , Fla. Stat.

14. Petitioner alleges that Walmart discriminated against

her based upon PetitionerÓs race, age, or in retaliation for her

participation in protected activity. The evidence, summarized

in the Findings of Fact, above, do not support those claims and

Petitioner otherwise failed to present sufficient evidence

necessary to establish even a prima facie case for any of those

claims. Analysis of PetitionerÓs claims are analyzed under

separate headings A through C , below.

A. Race Discrimination

15. To prevail on a race discrimination claim, Petitioner

is required to prove by a preponderance of the evidence, which

may be direct or circumstantial, that (1) she belongs to a

protected group; (2) she was qualified for the position held;

(3) she suffered an adverse employ ment action; and (4) either

she was replaced by someone outside the protected class or a

similarly - situated employee outside the protected class was

treated more favorably. If a prima facie claim of race

discrimination is established, the employer must proffer a

legitimate non - discriminatory reason for the adverse action.

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

the proffer is made, then burden shifts back to the employee to

directly rebut the proffered reasons for the adverse act ion and

establish that such reasons are pretext for discriminatory

animus. Id.

16. "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) . In this case, however,

Petitioner failed to establish a prima facie claim of race

discrimination because she failed to present direct or

circumstantial evidence that she suffered an adverse employment

action.

17. Petitioner admit ted that she did not suffer a loss of

income. At the time of the final hearing, she was still

employed in the same position as before the two incidents

outlined in the Findings of Fact, above, which Petitioner

suggested as the basis o f her claims .

18. Petitioner was never disciplined or coached regarding

the two incidents.

19. Moreover, d espite being told to clock out for the

remainder of her shifts, Petitioner refused to do so. On the

first occasion, Petitioner completed her shif t. On the second

occasion, Petitioner was escorted out by police.

20. E ven if Petitioner had establish ed a prima facie claim

of racial discrimination , Respondent Ós legitimate, non -

discriminatory reason Respondent proffered at the final hearing

was that Petitioner was asked to clock out of the shifts because

Petitioner refused to follow her managerÓs directives.

21. Petitioner failed to demonstrate Ðsuch weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employerÓs proffered legitimate reason s

for its actions that a reasonable factfinder could find them

unworthy of credence.Ñ Combs v. Plantation Patterns,

Meadowcraft, Inc. , 106 F.3d 1519, 2538 (11th Cir. 1997).

22. And, Petitioner failed to present credible eviden ce

presented to show that the reasons proffered by the Respondent

for its actions were pretext f or discriminatory racial animus.

B. Age Discrimination

23. To prevail on an age discrimination claim, an employee

must prove that : (1) she is a member of a protected class

because of her age ; (2) she was qualified for the position ;

(3) she was subjected to an adverse employment action; and

(4) her employer treated similarly - situated employees of a

ÐdifferentÑ age more favorably. 2/ Once an employee establishes a

prima facie claim of age discrimination, the burden shifts to

the emplo yer to proffer a legitimate non - discriminatory reason

for its adverse employment decision. The burden shifts back to

the employee to directly rebut and to prove that the proffered

reason is pretext for age animus. Holifield v. Reno , 115 F.3d

1555 (11th Cir. 1997). This burden - shifting analysis is applied

to cases with direct and circumstantial evidence.

24. Despite PetitionerÓs insistence at the final hearing

that her age was the basis of RespondentÓs actions, that

conclusion, without supporting evidence, amounted to Ð conclusory

allegations, unwarranted factual deductions or legal conclusions

masquerading as facts , Ñ and was not sufficient to meet

PetitionerÓs burden of proof to demonstrate even a prima facie

case of age discrimination . See generally , Davila v. Delta Air

Lines, Inc. , 326 F.3d 1183, 185 (11th Cir. 2003).

25. Both Petitioner and Assistant Manager Davis testified

that no member of management ever made discriminatory comments

about PetitionerÓs age , and the evidence did not otherwise

support PetitionerÓs allegation of age discrimination.

26. In sum, Petitioner failed to present credible or

persuasive evidence to show that Respondent discriminated

against Petitioner because of her age when she was instructed to

clock out for the remainder of two shifts or when she was

escorted out of the store for refusing to do so.

C . Retaliation

27. FCRA prohibits an employer from retaliating against an

employee that has opposed an unlawful act. See § 760.10 , Fla.

Stat. This opposition is often referred to as the employee

Ðengaging in protected activity.Ñ Similar to claims of race and

age discrimination, claims of retaliation are analyzed under the

McDonnell Douglas burden shift paradigm. See McDonnell Douglas

Corp. , supra .

28. 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.

29. If the employee makes out a prima facie case of

retaliation, then the burden shifts to the employer to

demonstrate a legitimate, non - retaliatory re ason for its

challenged action. Once the employer does so, the burden

returns to the employee to demonstrate that the employerÓs

articulated reason is pretext for retaliatory action. Id.

30. Petitioner did not provide any credible or persuasive

evidence that she engaged in protected activity.

31. Further, Petitioner presented no credible or

persuasive evidence that Respondent retaliated against her for

complaining of alleged race or age discrimination.

32. In sum, as in her other claims based on race and age,

Petitioner failed to present even a prima facie case of

retaliation.

33. When a Petitioner fails to present a prima facie case ,

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

State , 66 6 So. 2d 1008, 1013 n.6 (Fla. 1st DCA 1996).

34. Even if Petitioner had established a prima facie case

for any of her claims, Walmart advanced legitimate, non -

retaliatory reasons for its actions in asking Petitioner to

clock out and for having the police escort Petitioner from the

workplace. Petitioner failed to show that those reasons were

mere pretext for discrimination based on PetitionerÓs race, age,

or retaliation.

35. Further, d e spite being aware of WalmartÓs open d oor

policy, Petitioner admitted during the final hearing that she

never told a member of management that she was being

discriminated against based on her race, age, or any other

protected category.

36. Petitioner did not suffer any loss of wages, change of

title, disciplinary action or change of duties as a result of

t he incidents that were the subject of PetitionerÓs claims , and

Petitioner otherwise failed to present sufficient evidence to

support those claims.

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 o rder dismiss ing PetitionerÓs Complaint and

Petition for Relief consistent with the terms of this

Recommended Or der.

DONE AND ENTERED this 25th day of March , 201 6 , 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

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of March , 201 6 .

ENDNOTES

1/ Unless otherwise indicated by context, citations to all

statutes, rules, and regulations are to current versions, the

substantive provisions of which have not changed since the

pertinent facts in this case.

2/ These elements for a prima facie showing of age

discrimination differ than those identified in City of Hollywood

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

relying on federal prec e dent, state d :

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) the plaintiff

is otherwise qualified for the positions

sought; 3) the plaintiff was rejected for

the position; 4) the position was fil led by

a worker who was substantially younger than

the plaintif f.

As this Recommended Order will be subject to the

CommissionÓs Final Order authority, rather than relying on

Hogan , supra , the undersigned has applied the elements for age

discrimination as described by the Commission, for example, in

its Final Order rendered in Johnny L. Torrence v. Hendrick Honda

Daytona , Case No. 14 - 5506 (DOAH Feb. 26, 2015; FCHR May 21,

2015) , wherein the Commission observed:

With regard to element (1), Commission

panels have concluded that one of the

elements for establishing a prima facie case

of age discrimination under the Florida

Civil Rights Act of 1992 is a showing that

individuals similarly - situated to Petitioner

of a ÐdifferentÑ age were treated more

favora bly, and Commission panels have noted

that the age Ð40Ñ has no significance in the

interpretation of the Florida Civil Rights

Act of 1992. See, e.g., Downs v. Shear

Express, Inc. , FCHR Order No. 06 - 036

(May 24, 2006), and cases and analysis set

out there in; see also, Boles v. Santa Rosa

County SheriffÓs Office , FCHR Order

No. 08 013 (February 8, 2008), and cases and

analysis set out therein.

Consequently, we yet again note that the

age Ð40Ñ has no significance in the

interpretation of the Florida Civil Rights

Act of 1992. Accord, e.g., Grasso v. Agency

for Health Care Administration , FCHR Order

No. 15 - 001 (January 14, 2015), Cox v. Gulf

Breeze Resorts Realty, Inc. , FCHR Order

No. 09 - 037 (April 13, 2009), Toms v. Marion

County School Board , FCH R Order No. 07 - 060

(November 7, 2007), and Stewart v. Pasco

County Board of County Commissioners, d/b/a

Pasco County Library System , FCHR Order

No. 07 - 050 (September 25, 2007). But, cf,

City of Hollywood, Florida v. Hogan, et al . ,

986 So. 2d 634 (4th DCA 2008).

With regard to element (4), while we agree

that such a showing could be an element of a

prima facie case, we note that Commission

panels have long concluded that the Florida

Civil Rights Act of 1992 and its predecessor

law, the Human Rights Act of 1977, as

amended, prohibited age discrimination in

employment on the basis of any age Ðbirth to

death.Ñ See G reen v. ATC/VANCOM Management,

Inc. , 20 F.A.L.R. 314 (1997), and Simms v.

Niagara Lockport Industries, Inc. , 8

F.A.L.R. 3588 (FCHR 1986). A Commission

panel has indicated that one of the elements

in determining a prima facie case of age

discrimination is that Petitioner is treated

differently than similarly situated

individuals of a ÐdifferentÑ age, as opposed

to a ÐyoungerÑ age. See Musgrove v. Gator

Human Services, c/o Tiger Success Center, et

al., 22 F.A.L.R. 355, at 356 (FCHR 1999);

accord Qualander v. Avante at Mt. Dora, FCHR

Order No. 13 - 016 (February 26, 2013),

Collins, supra, Lombardi v. Dade County

Circuit Court, FCHR Order No. 10 - 013

(February 16, 2010), Deschambault v. Town of

Eatonville, FCHR Order No. 09 - 039 (May 12,

2009), and Boles, supra. But, cf . , Hogan,

supra.

COPIES FURNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Mary L. Smith

3137 Atwater Road

Chattahoochee, Florida 32324

(eServed)

Jonathan A. Beckerman, Esquire

Littler Mendelson, PC

Wells Fargo Center

333 Southeast 2nd Avenue , Suite 2700

Miami, Florida 33131 - 2187

(eServed)

Grissel T. Seijo, Esquire

Littler Mendelson, P.C.

Wells Fargo Center, Suite 2700

333 Southeast 2nd Avenue

Miami, Florida 33131

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

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.