16-004123 Jancie Vinson vs. Higbee Company, D/B/A Dillard's Status: Closed Recommended Order on Monday, March 20, 2017.

Summary: Petitioner failed to meet her burden of proving that Respondent engaged in a discriminatory employment practice based on her race or age, or as retaliation for her opposition to discriminatory acts.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANCIE VINSON,

Petitioner,

vs. Case No. 16 - 4123

HIGBEE COMPANY, d/b/a DILLARD'S,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on January 17 ,

2017, via video teleconference in Tallahassee and Miami,

Florida, before Yolonda Y. Green, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings ( ÐDOAHÑ ).

APPEARANCES

For Petitioner: Carla D. Franklin, Esquire

Carla D. Franklin, P.A.

204 West University Avenue, Suite 3

Gainesville, Florida 32601

For Respondent: Christopher W. Deering, Esquire

Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

420 North 20 th Street, Suite 1900

Bir mingham, Alabama 35203

STATEMENT OF THE ISSUE

Whether Respondent subjected Petitioner to an unlawful

employment practice on the basis of her race or age; or in

retaliation to her engagement in a lawful employment activity,

in violation of section 760.10 , Florida Statutes.

PRELIMINARY STATEMENT

Petitioner, Jancie Vinson (ÐMs. Vinson Ñ or Ð PetitionerÑ) ,

filed a Complaint of Employment Discrimination with the Florida

Commission on Human Relatio ns (ÐFCHRÑ) on September 18, 2015.

The complaint alleged that Re spondent, Higbee Company, d/b/a

DillardÓs (ÐDillardÓs Ñ or Ð RespondentÑ) , had discriminated

against her on the basis of race and age and had retaliated

against her for engaging in a protected employment activity.

Following its investigation of the allegati ons, FCHR issued a

determination of ÐNo Reasonable CauseÑ regarding PetitionerÓs

complaint on June 16, 2016.

On July 15, 2016, Petitioner filed a Petition for Relief

requesting an administrative hearing regarding FCHRÓs ÐNo CauseÑ

determination pursuant t o section 760.11(7).

FCHR referred the matter to DOAH on July 21, 2016, and on

July 22, 2016, this matter was assigned to Administrative Law

Judge E. Gary Early. On August 2, 2016, this matter was

transferred to the undersigned and the undersigned issued a

Notice of Hearing, setting the final hearing for September 16,

2016. However, at the request of the parties, the final hearing

was continued twice, and ultimately scheduled to commence on

January 17, 2017.

The final hearing was convened on January 17, 2017. At

hearing, Joint Exhibits J - 1 through J - 4 were admitted.

Petitioner testified on her own behalf. Petitioner offered

Exhibits P - 1 through P - 10, P - 13 through P - 17, P - 20, and P - 22

through P - 27, which were admitted.

Respondent offered the testimo ny of Tiffany A. Lobdill,

former store manager of DillardÓs Store No. 234. Respondent

offered Exhibits R - 2 through R - 10, R - 14 through R - 16, R - 18,

R - 20, R - 22, R - 23, R - 27, R - 28, R - 31, R - 33, R - 38, R - 39, R - 42 , and

R - 43 , which were admitted.

The proceeding w as recorded by a court reporter and

Respondent ordered a copy of the transcript. A one - volume

Transcript of the final hearing was filed with the DOAH on

February 10, 2017 . The parties timely filed Proposed

Recommended Orders, which have been carefully co nsidered in the

preparation of this Recommended Order.

All statutory citations are to Florida Statutes (2014),

unless otherwise indicated.

FINDING S OF FACT

1. At all times material to this matter, Ms. Vinson, an

African - American female, was employed by D ill ardÓs. Ms. Vinson

was 56 years old at the time of her termination from DillardÓs.

2. DillardÓs is a retail department store operating in

Gainesville, Florida. Ms. Vinso n worked at DillardÓs Store

No. 0234. At all times material to this matter, Dill ardÓs

employed more than fifteen full - time employees.

3. On June 8, 2004, Ms. Vinson was hired by DillardÓs as a

part - time sales associate and assigned to the Ladies Ready - to -

Wear department. She worked in Ready - to - Wear until her

termination on October 3 , 2014. As a sales associate,

Ms. Vinson was responsible for selling merchandise to customers

and protecting DillardÓs assets.

4. During Ms. VinsonÓs orientation, she received a copy of

DillardÓs Associate Work Rules, General Policies , and Benefits

man ual, which include DillardÓs attendance policy and

expectations for associates. Ms. Vinson signed an Associate

Certification form acknowledging receipt of DillardÓs policies.

5. Throughout Ms. VinsonÓs employment at DillardÓs, she

also worked full - time a s a parole officer with the State of

Florida Depa rtment of Corrections (ÐDOCÑ).

6 . When Ms. Vinson began working at DillardÓs , she advised

her manager that her DillardÓs work availability may fluctuate

based upon the work responsibilities of her full - time job as a

parole officer. As a parole officer who works with sexual

offenders, Ms. VinsonÓs schedule at her full - time job depends

upon several variables, including court appearances and visits

with offenders. Because some of these variables are beyond

Ms . VinsonÓs control, the manager of DillardÓs at the time of

her hire agreed to work around Ms. VinsonÓs work schedule at her

full - time job.

7. At times, Ms. Vinson would be late for her shift at

DillardÓs due to the work responsibilities as a parole offic er.

However, three prior store managers accepted an excuse from

Ms. VinsonÓs full - time job to excu se Ms. VinsonÓs tardiness.

Ms. VinsonÓs schedule accommodations changed when Ms. Lobdill

became the store manager of DillardÓs store No. 0 234.

8. In July 2011, Ms. Lobdill became the store manager at

DillardÓs store No. 0 234 in Gainesville. She worked at store

No. 0 234 until March 2016.

9. Ms. Lobdill was tasked with improving the conditions of

the store. Among other things, she conducted an evaluatio n of

all sales associates, including compliance with DillardÓs

policies . Ms. Lobdill discovered that Ms. Vinson was not

following the attendance and scheduling policies.

10. Under DillardÓs attendance policies , all employees are

required to notify the ir supervisor or m anagement if unable to

arrive on time prior to the scheduled reporting time. All

schedules must be followed unless a change is approved and

posted by m anagement staff . Ms. Lobdill testified that an

accumulation of: 1) nine exceptions f or tardine ss; 2) four

unexcused absences; or 3) three Ðno - showsÑ within a six - month

period may result in termination.

11. On February 25, 2012, Ms. Lobdill informed Ms. Vinson

that the excuse notes from her full - time job would no longer be

accepted and if she were late for a scheduled shift, she would

receive a Ð tardy exception. Ñ Ms. Vinson informed Ms. Lobdill

and Mr. Heil , the district manager and Ms. LobdillÓs supervisor ,

in writing that she considered the change in the practices

involving her emplo ym ent discriminatory. This would be one of

ma ny complaints of discrimination. T he most relevant complaints

will be discussed further below.

12. After Ms. Vinson spoke with corporate management,

DillardÓs accepted excuse notes from Ms. Vinson. This pra ctice

changed again on September 28, 201 3, when Ms. Lobdill informed

Ms. Vinson that DillardÓs would no longer accept the excuse

notes.

13. From October 2011 to August 2014, Ms. Vinson

complained of what she considered were discriminatory acts

including, reduction in hours, being refused the opportunity to

ÐswapÑ shifts , and discontinuance of accepting excused

tardiness . Ms. Vinson als o informed Mr. Heil about alleged

discrimination by copying him on the emails.

14. On July 2, 2014, Ms. Vinson receiv ed documentation of

disc iplinary action for working off - schedule on June 24, 2014.

She was advised that schedules must be followed especially on

Ðkey peakÑ days, including Saturdays. Ms. Lobdill testified

that Saturdays and Sundays are considered Ðkey pe akÑ days.

15 . The last week of Augu st until September 8, 2014,

Ms. Vinson was out sick. On September 9, 2014 , when Ms. Vinson

returned to work to obtain her schedule, she discovered that she

had been removed as an employee from the DillardÓs system. On

that same date, she contacted the DillardÓs legal department and

expressed her concerns that she had been removed from the system

and was not treated in the same manner as other employees. On

September 23, 2014, Ms. Vins on complained in writing to

Ray Bre wer, her assistant manager, that she would be filing a

complaint alleging discrimination on the basis of race, age, and

retaliation alleging that removing her from the DillardÓs system

was a discriminatory act. Ms. VinsonÓs removal from the system

was not considere d termination from employment but rather, it

was deemed a technical error.

16 . The second or th ird week of September 2014,

Ms. Lobdill directed employees to complete a form indicating

weekly availability. Ms. Lobdill was aware that Ms. Vin sonÓs

job responsibilities of her full - time job impeded her ability to

provide a weekly schedule of availability. On September 24,

2014, Ms. Vinson met with Ms. Lobdill and Mr. Brewer and

submitted a completed availability form. The availability form

i nd icated availability as indicated in the chart below .

D Day A Availability Request Reason

S Sunday J Work for State

Monday Work for State

Depends due

subpoenaÓs

Tuesday 12 - 9 depends usually

12 - 9 p

Wednesday 9:50 - 5 pm 9:50 - 6 pm

v aries depending

on state

Thursday 12 - 9 pm v aries depending

on state

Friday 9:50 - 5 pm v aries depends on

state jo (sic)

Saturday Usually 9:50 - 6 pm d epends on state

job varies

Ms. Vinson also included additional writing on the available

form as follows: ÐTo the best of my ability I cannot predict

day to day this based upon being sick and out for subpoena for

state job is not predictable. It is hard for me to write

without listing the dates in the future.Ñ

17. Following the meeting, Ms. Vinson emailed a proposed

monthly sc hedule to Ms. Lobdill requesting each Friday and two

of four Saturdays off for October 2014. Ms. Vinson received her

Octo ber schedule on October 2, 2014 , which sche duled her to work

two Fridays and three Saturdays in October.

18 . On October 3, 2014, M s. Vinson was terminated. There

is a dispute regarding the basis for the separation. The

reasons Ms. Lobdill provided on Ms. VinsonÓs separation form

indicated she voluntarily resigned Ðto accept other work -- better

schedule, pay.Ñ Ms. Lobdill testified that Ms. Vinson was

terminated for failing to provide a concrete work schedule.

19 . On the other hand, Ms. Vinson testified that she did

not resign and instead was terminated based on discriminatory

and retaliatory reasons.

20 . Ms. Vinson alleges Dil lardÓs unlawfully terminated her

on the basis of race, age, and in retaliation for engaging in a

protected employment activity.

21 . Pursuant to DillardÓs policy manual, an employee who

has been harassed, including discrimination on the basis of

race, sho uld report the harassment to : 1) a member of executive

management a t the employeeÓs work location; 2) the district

manager; or 3) office of general counsel. Each complaint shall

be investigated and a determination of the facts will be made on

a case - by - c ase basis and appropriate action will be taken.

22 . Ms. Vinson properly reported her complaints according

to DillardÓs policy.

2 3 . Other than the attendance issues, Ms. Vinson was an

otherwise good sales associate . She received wage increases

based on her sales performance. DillardÓs sales performance

Dashboard report shows that she was ranked one out of eleven for

sales in her department for the period September 1, 2013 , to

August 29, 2015 , and 15 out of 193 in the district. Ms. Vinson

received re cognition for her sales performance and good customer

service. In September 2013, she received a $2.00 per hour wage

increase to $15.30 due to exceeding her sales per hour goals.

24 . Ms. Vinson offered evidence regarding Troy Zednek to

prove a simila rly - situated employee outside her protected class

was treated more favorably than her.

25 . Mr. Zednek is a white male who was approximately 23

years of age during the relevant time period. Mr. Zednek was

terminated for e xcessive absenteeism on October 11 , 2014,

approximately eight days after Ms. Vinson .

CONCLUSIONS OF LAW

26 . Pursuant to s ections 120.569 and 120.57( 1), Florida

Statutes (2016), DOAH has jurisdiction over the subject matter

and parties to this proceeding.

27 . Section 760.10(1)(a), Florida Statutes, makes it

unlawful for an employer to take adverse action against an

individual because of that employeeÓs race or sex.

28 . The civil rights act defines ÐemployerÑ as Ðany person

employing 15 or more employees for each working day in each of

20 or more calendar weeks in the current or preceding calendar

year, and any agent of such person.Ñ £ 760.02(7), Fla. Stat.

29 . The parties stipulated that DillardÓs meets the

definition of employer.

30 . Petitioner filed a complaint alleging Respondent

d iscriminated against her on the basis of her race, age, and

retaliated against her for engaging in a protected employment

activity.

31 . Section 760.11(1) provides, in pertinent part, that

Ð[a]ny person aggrieved by a violation of ss. 760.01 - 760.10 may

fi le a complaint with the [FCHR] within 365 days of the alleged

violation.Ñ Petitioner timely filed her complaint.

32 . Section 760.11(7) provides that upon a determination

by the FCHR that there is no reasonable cause to believe that a

violation of the Fl orida Civil Rights Act of 1992 has occurred,

Ð[t]he aggrieved person may request an administrative hearing

under ss. 120.569 and 120.57, but any such request must be made

within 35 days of the date of determination of reasonable

cause.Ñ Following the FCHR determination of no cause,

Petitioner timely filed her Petition for Relief from Unlawful

Employment Practices and Request for Administrative Hearing

requesting this hearing.

33 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, the

Florida statute will take on the same constructions as placed on

its federal prototype.Ñ Brand v. Fla. Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 199 4); see also Valenzuela v. GlobeGround

N. Am. , LLC, 18 So. 3d 17 (Fla. 3d DCA 2009); Fla. State Univ.

v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep't of

Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

34 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent committed an

unlawful employment practice. See St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455 (Fla. 3d DCA 2011); Fla. Dep't of Transp.

v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Discrimin ation - Race

35 . Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d at 22.

36 . Direct evidence is evidence that, if believed, would

prove the existence of discriminator y intent without resort to

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997). It is well established that ÐÒonly the

most blatant remarks, whose intent could be nothing other than

to discriminate . . .Ó will constitute direct evidence of

discrimination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations omitted).

37 . Petitioner did not present any direc t evidence of

racial or age - related discriminatory bias.

38 . Petitioner presented no statistical evidence of

discrimination by Respondent in its personnel decisions

affecting Petitioner.

39 . In the absence of any direct or statistical evidence

of discriminatory intent, Petitioner must rely on circumstantial

evidence. In McDonnell Douglas Corporation v. Green , 411 U.S.

792 (1973), and as refined in Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981), and St. Mary's Honor

Center v. Hicks , 509 U.S . 502 (1993), the United States Supreme

Court established the procedure for determining whether

employment discrimination has occurred when employees rely upon

circumstantial evidence of discriminatory intent.

40 . Under McDonnell Douglas , Petitioner has t he initial

burden of establishing a prima facie case of unlawful

discrimination.

41 . To establish a prima facie case of racial

discrimination, Petitioner must demonstrate by a preponderance

of the evidence that : 1) she is a m ember of a protected class;

2) she was qualified for the position; 3) she was subjected to

an adverse employment action; and 4) her employer treated

similarly - situated employees outside of her protected class more

favorably than she was treated. Burke - Fowler v. Orange Cnty. ,

447 F.3 d 1319, 1323 (11th Cir. 2006).

42 . The first, second and third element s of the prima

facie case have been met by Petitioner. Ms. Vinson is an

African - American female , she was qualified for the position, and

she was terminated from her position at Dillar dÓs.

43 . Petitioner d id not, however, prove the fourth element,

that other similarly - situated employees were treated more

favorably than her.

44 . An adequate comparator for Petitioner must be

ÐÒsimilarly - situatedÓ in all relevant respects.Ñ Valenzu ela v.

GlobeGround N. Am. , 18 So. 3d at 23 ( internal citations

omitted); Johnson v. Great Expressions Dental Ctrs. of Fla. , 132

So. 3d 1174 (Fla. 3d DCA 2014). The Johnson court explained the

exacting nature of the similarly - situated comparator, as

follow s:

Similarly situated employees must have

reported to the same supervisor as the

plaintiff, must have been subject to the

same standards governing performance

evaluation and discipline, and must have

engaged in conduct similar to plaintiffÓs,

without such differentiating conduct that

would distinguish their conduct of the

appropriate discipline for it.

Id. at 1176.

45 . Petitioner has failed to prove by a preponderance of

the evidence that Respondent treated similarly - situated

employees outside her prot ected class more favorably than her.

46 . Petitioner Ós only evidence offered of a similarly -

situated employee comparator was related to Troy Zednek, a white

male, who requested each Saturday off as reflected on his

availability form. This argument is re jected.

47 . The evidence in this case establishes that Petitioner

was terminated for failure to provide concrete availability.

Mr. Zednek also provided inadequate availability when he

requested Saturdays off. He was a no - show for a Saturday shift

and wa s terminated for excessive absenteeism. The issue

regarding attendance probl ems was the reason for both

Mr. Zednek Ós and PetitionerÓs termination. Therefore,

Petitioner failed to prove a prima facie case of unlawful

discrimination based on her race under the McDonnel l Douglas

standard.

D iscrimination - Age

48 . To establish a prima facie case of age discrimination,

the undersigned recognizes that Florida judicial case law on age

discrimination clearly establishes that:

The plaintiff must first make a pri ma 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 rej ected for

the position; 4) the position was filled by

a worker who was substantially younger than

the plaintiff. (emphasis added).

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

2008). However, the FCHR has determined, citing its own ord ers

as authority, that:

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 - situa ted to Petitioner

of a ÐdifferentÑ age were treated more

favorably, 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 N o. 06 - 036

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

out therein; 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 h as 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

(Apri l 13, 2009), Toms v. Marion County

School Board , FCHR 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 199 2 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 Green v. ATC/VANCOM Management, Inc. ,

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

Lockport Indu stries, 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. Da de 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.

Johnny L. Torrence v. Hendrick Honda Daytona , Case

No. 14 - 5506 (DOAH Fe b. 26, 2015; FCHR May 21, 2015).

49 . If Petitioner is able to prove her prima facie case by

a preponderance of the evidence, the burden shifts to Respondent

to articulate a legitimate, non - discriminatory reason for its

employment decision. Tex. DepÓt of Cmty. Aff. v. Burdine ,

450 U.S. at 255; DepÓt of Corr. v. Chandler , 582 So. 2d 1183

(Fla. 1st DCA 1991). An employer has the burden of production,

not persuasion, to demonstrate to the finder of fact that the

decision was non - discriminatory. DepÓt of Cor r. v. Chandler ,

supra. This burden of production is "exceedingly light."

Holifield v. Reno , 115 F.3d at 1564; Turnes v. Amsouth Bank,

N.A. , 36 F.3d 1057, 1061 (11th Cir. 1994).

50 . If the employer produces evidence that the decision

was non - discriminat ory, then the complainant must establish that

the proffered reason was not the true reason but merely a

pretext for discrimination. St. Mary's Honor Ctr. v. Hicks ,

509 U.S. at 516 - 518. In order to satisfy this final step of the

process, Petitioner must Ð show[] directly that a discriminatory

reason more likely than not motivated the decision, or

indirectly by showing that the proffered reason for the

employment decision is not worthy of belief.Ñ DepÓt of Corr. v.

Chandler , 582 So. 2d at 1186 ( citing Tex . Dep't of Cmty. Aff. v.

Burdine , 450 U.S. at 252 - 256). Ð[A] reason cannot be a pretext

for discrimination Òunless it is shown both that the reason was

false, and that discrimination was the real reason.ÓÑ Fla.

State Univ. v. Sondel , 685 So. 2d at 927, cit ing St. Mary's

Honor Ctr. v. Hicks , 509 U.S. at 515; see also Jiminez v. Mary

Washington Coll. , 57 F.3d 369, 378 (4th Cir. 1995). The

demonstration of pretext Ðmerges with the plaintiff's ultimate

burden of showing that the defendant intentionally discrim inated

against the plaintiff.Ñ Holifield v. Reno , 115 F.3d at 1565.

51 . In a proceeding under the Civil Rights Act, Ð[w]e are

not in the business of adjudging whether employment decisions

are prudent or fair. Instead, our sole concern is whether

unlawf ul discriminatory animus motivates a challenged employment

decision.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d at 1361. As established by the Eleventh Circuit Court

of Appeals, Ð[t]he employer may fire an employee for a good

reason, a bad re ason, a reason based on erroneous facts, or for

no reason at all, as long as its action is not for a

discriminatory reason.Ñ Nix v. WLCY Radio/Rahall CommcÓns ,

34 738 F.2d 1181, 1187 (11th Cir. 1984). Moreover, Ð[t]he

employerÓs stated legitimate reason . . . does not have to be a

reason that the judge or jurors would act on or approve.Ñ DepÓt

of Corr. v. Chandler , 582 So. 2d at 1187.

52 . In determining whether RespondentÓs actions were

pretextual, the undersigned Ðmust evaluate whether the plaintiff

ha s demonstrated Òsuch weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action that a

reasonable factfinder could find them unworthy of credence.ÓÑ

Combs v. Plantation Pat terns, Meadowcraft, Inc. , 106 F.3d 1519,

1538 (11th Cir. 1997).

53 . Petitioner was 56 years old at the time of her

termination , and as such, was a member of a protected class.

54 . As established above, Petitioner met the

qualifications for the position of sales associate and was

terminated from employment, which is an adverse employment

action.

55 . H owever, Petitioner has failed to establish a prima

facie case that persons of a different age were subject to

employment actions that were different from those applied to

her.

56 . Similar to the analysis of the race - based

discrimination referenced above, Mr. Zednek was the only

employee offered as a younger employee comparat or. As stated in

paragraphs 46 and 47 , the em ployment actions applied to

Mr. Zed nek were not materially different than those applied to

Petitioner.

57 . Petitioner did not meet her burden by a preponderance

of the evidence that she was terminated on the basis of her age.

Retaliation

58 . A claim of retaliation involves sectio n 760.10(7),

which provides that: Ð It is an unlawful employment practice for

an employer, . . . to discriminate against any person because

that person has opposed any practice which is an unlawful

employment practice under this section, or because that pe rson

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

manner in an investigation, proceeding, or hearing under this

section. Ñ

59 . ÐSection 760.10(7), Florida Statutes, is virtually

identical to its Federal Tit le VII counterpart, 42 U.S.C.

§ 2000e - 3(a). The FCRA [Florida Civil Rights Act] is patterned

after Title VII; federal case law on Title VII applies to FCRA

claims.Ñ Hinton v. Supervision Int'l, Inc. , 942 So. 2d 986, 989

(Fla. 5th DCA 2006)(citing Guess v. City of Miramar , 889 So. 2d

8 40, 846, n.2 (Fla. 4th DCA 2005)).

60 . In construing 42 U.S.C. § 2000e - 3(a), the Eleventh

Circuit has held that: [t]he statute's participation clause

Ðprotects proceedings and activities which occur in conjunction

with or after the filing of a fo rmal ch arge with the EEOC.Ñ The

opposition clause, on the other hand, protects activity that

occurs before the filing of a formal charge with the EEOC, such

as submitting an internal complaint of discrimination to an

employer, or informally complaining of discri mination to a

supervisor. (citations omitted). Muhammed v. Audio Visual

Servs. Group , 380 Fed. Appx. 864, 872 (11th Cir. 2010). The

division of section 760.10(7) into the Ðopposition clauseÑ and

the Ðparticipation clauseÑ is recognized by Florida state

courts. See Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922,

at 925 - 926 (Fla. 5th DCA 2009) .

61 . In explaining the difference between the two clauses,

the Second District Court of Appeal has held that:

FCRA's Ðopposition clause [protects]

employees w ho have opposed unlawful

[employment practices]. . . . Ñ However,

opposition claims usually involve

Ðactivities such as Òmaking complaints to

management, writing critical letters to

customers, protesting against discrimination

by industry or by society in general, and

expressing support of coworkers who have

filed formal charges. . . . ÓÑ Cases

involving retaliatory acts committed after

the employee has filed a charge with the

relevant administrative agency usually arise

under the participation clause.

Ca rter v. Health Mgmt. Assoc. , 989 So. 2d 1258, 1263

(Fla. 2d DCA 2008).

62 . Petitioner did not introduce any direct or statistical

evidence that proves Respondent retaliated against her as a

result of PetitionerÓs opposition to acts of discrimination.

Abs ent any direct or statistical evidence, Petitioner must prove

her allegations of retaliation by circumstantial evidence.

Circumstantial evidence of retaliation is subject to the burden -

shifting analysis established in McDonnel l Douglas .

63 . To establish a prima facie case of retaliation under

the oppos i tion clause under McDonnell Douglas , Petitioner must

demonstrate by a preponderance of the evidence Ð(1) that [she]

engaged in statutorily protected expression; (2) that [she]

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

causal relationship between the two events.Ñ (citations

omitted). Holifield v. Reno , 115 F.3d at 1566; see also

Muhammed v. Audio Visual Servs. Group , 380 Fed. Appx. at 872;

Tipton v. Canadian Imperial Bank , 872 F.2d 1491 ( 11th Cir.

1989).

a. Statutorily - Protected Activity

64 . Not every act an employee takes in opposition to

discrimination is a protected activity. Laincy v. Chatham Cnty.

Bd. of Assessors , 780, 782 (11 th Cir. 2013), 520 Fed. AppÓx.

at 782 (citing Butler v. Ala. Dep't of Transp. , 536 F.3d 1209,

1214 (11th Cir. 2008)). The employee must show: Ð(1) that she

had a subjective good - faith belief Òthat [her] employer was

engaged in unlawful employment practicesÓ; and (2) that her

belief, even if mistaken, was o bjectively reasonable in light of

the record.Ñ Id. (emphasis added).

65 . The standard requires an intensely fact - specific

analysis. In Laincy , the court found that plaintiff did not

engage in a protected activity because his belief that his

coworkersÓ allegedly harassing comments constituted an unlawful

employment practice was objectively unreasonable, where it was

limited to three innocuous comments asking him if he was dating

someone. Laincy , 520 Fed. AppÓx. at 783. See also MacKenzie v.

Denver , 414 F .3d 1266, 1281 (10th Cir. 2005) (plaintiffÓs claim

of age harassment was both subjectively and objectively

unreasonable where she likewise lobbed age - related comments at

her supervisor, thus participating in a form of Ðmutual

banteringÑ); Atkinson v. Stav roÓs Pizza, Inc. , Case No. 13 - 2880

(Fla. DOAH Jan. 29, 2015) (petitionerÓs complaint of sexual

harassment based on a single Ðweird conversationÑ between

petitioner and another employee, in which the other employee

stated he Ðknew everything about her, incl uding where she lived,

and that her favorite color was blue,Ñ was objectively

unreasonable).

66 . Unlike the examples referenced above, Petitioner had

submitted written complaints of d iscrimination from 2011

through 2014. Petitioner credibly testified tha t she was

concerned that several personnel actions related to her

schedule, pay, and removal from the employee system were due to

racial discrimination. She reported her complaints to

management and to the legal team. Thus, Petitioner established

a subje ctive good - faith belief for her reports of racial and age

discrimination.

67 . Ms. VinsonÓs beliefs were reasonable as well. The

district manager, Mr. Heil, met with Ms. Vinson and discussed

her complaints of discriminatory acts. Thus, Petitioner has

p roven that she had an objectively reasonable belief for her

claim.

68 . Therefore, Petitioner proved by a preponderance of the

evidence that she engaged in a statutorily - protected activity

when she reported complaints of racial and age discrimination to

DillardÓs management.

b. Adverse Employment Action

69 . Petitioner claims that Respondent engaged in a series

of retaliatory actions against her after she repeatedly reported

acts of discriminatory conduct to DillardÓs management. The

alleged retaliatory acts include: reduction of hours; failure

to give pay raise; transfer to a different department;

discontinuance of accepting excuses from her primary job; and

termina tion from employment on October 3, 2014.

70 . Ms. Vinson acknowledged at hearing that th e issues

involving her reduction of hours, pay raise and transfer to a

different department were resolved by DillardÓs management.

Thus, there is no evidence to establish adverse employment

action related to those claims.

71 . PetitionerÓs claim that dis continuance of accepting

excuses was an adverse action is unfounded. Respondent complied

with its attendance policy when it refused to accept the

excuses. Ms. Lobdi l l was not required to follow the practice of

accepting excuses that was permitted by prev ious managers . In

addition, Petitioner acknowledged that she was able to comply

with the attendance schedule without work excuses.

72 . There is no question that Petitioner suffered an

adverse employment action whe n she was terminated on October 3,

2014.

73 . Thus, Petitioner satisfied her burden to establish

that she met the second element of the prima facie case for

retaliation.

c. Causal Connection

74 . To prove the third element, Petitioner must

demonstrate a causal connection between the protected ac tivity

and the adverse employment decision. This causal link element

is construed broadly, and may be established by a demonstration

that the employer was aware of the protected conduct and that

the protected activity and the adverse action were not Ðwhol ly

unrelated.Ñ Farley v. Nationwide Mut. Ins. , 197 F.3d 1322, 1337

(11th Circ. 1999)(internal citations omitted); Olmstead v. Taco

Bell Corp. , 141 F.3d 1457, 1460 (11th Cir. 1998). Moreover, for

purposes of demonstrating a prima facie case, close tempora l

proximity may be sufficient to show that the protected activity

and adverse action were not wholly unrelated. Gupta v. Fla. Bd.

of Regents , 212 F.3d 571, 590 (11th Cir. 2000).

75 . Petitioner must finally prove a causal connection

between the protected activity and the adverse employment

action.

76 . Petitioner argues in her Proposed Recommended Order

that the proximity in time between her protected activity and

her termination demonstrates a causal connection. On the other

hand, Respondent argued that Petitioner did not file her claim

until nearly one year after her termination.

77 . RespondentÓs argument is rejected in that Petitioner

must only demonstrate a connection between the protected

activity and adverse employment action under the opposition

c lause. Petitioner filed her most recent claim of

discrimination -- prior to filing her formal complaint -- on

Septem ber 23, 2014. Approximately, ten days later she was

terminated. The evidence supports a finding that Petitioner

proved that her termination w as temporally proximate her

complaints of discrimination. The undersigned finds

PetitionerÓs termination was causally related to her complaints

of discrimination.

78 . Thus, Petitioner established a prima facie case of

retaliation.

Legitimate Non - Discrimi natory Reason

79 . The burden now shifts to Respondent to proffer a

legitimate reason for the adverse employment action. Assuming

Respondent does proffer a legitimate reason for the adverse

employment action, the burden then shifts back to Petitioner to

prove by a preponderance of the evidence that the Ðlegitimate

reasonÑ is merely a pretext for the prohibited, retaliatory

conduct. Russell v. KSL Hotel Corp. , 887 So. 2d 372 (Fla. 3d

DCA 2004) (citing Sierminski vansouth Fin. Corp. , 216 F.3d

945, 950 (11th Cir. 2000)).

80 . RespondentÓs proffered legitimate non - discriminatory

reason for terminating Petitioner was PetitionerÓs failure to

provide a concrete work availability schedule. Respondent

offered credible testimony regarding the importance of th e

availability form to schedule employees for work shifts to

ensure proper coverage for sales and asset protection. A

preponderance of the evidence supported a finding that

Petitioner did not comply with the request for concrete

availability, despite repe ated reminders to do so and an in -

person meeting with management on the subject.

81 . Thus, Respondent met its burden to produce evidence of

a legitimate non - discriminatory reason for PetitionerÓs

termination.

Pre - text for Discrimination

82 . To meet the requirements of the pretext step,

Petitioner must produce sufficient evidence for a reasonable

fact finder to conclude that the employer's legitimate,

nondiscriminatory reason was Ða pretext for discrimination.Ñ

Laincy , 520 F. AppÓx. at 781 (citing Vessel s v. Atlanta Indep.

Sch. Sys. , 408 F.3d 763, 771 (11th Cir. 2005)). ÐProvided 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 qua rreling with

the wisdom of that reason.Ñ Id. Rather, the plaintiff must

show Ðsuch weaknesses, implausibilities, inconsistencies,

incoherencies or contradictions in the employer's proffered

legitimate reasons . . . that a reasonable factfinder could find

them unworthy of credence.Ñ Id.

83 . Petitioner introduced testimony that Ms. Lobdill was

aware that a weekly schedule would be a problem for Ms. Vinson

when she initiated the policy. However, Ms. Vinson was aware of

the importance of provi ding a concre te weekly schedule,

including availability on Ðkey peakÑ days, as she was warned in

her documentation of disciplinary action that availability on

Ðkey peak Ñ days is critical to adequately care for customers .

Thus, Ms. Vinson did not establish her burden t o prove that

DillardÓs nondiscriminatory reason was a pretext for

discrimination.

84 . For the reasons set forth herein, Petitioner did not

meet her burden to establish discrimination by retaliation in

her termination. Respondent put forth persuasive evid ence that

Petitioner was terminated from employment as a result of her

inability to provide a concrete availability form, and not in

retaliation for her participation in a protected activity.

RespondentÓs legitimate nondiscriminatory reason was not refute d

by PetitionerÓs efforts to demonstrate pretext.

Conclusion

85 . Based on the foregoing, Petitioner did not prove her

Charge of Discrimination. The undersigned therefore concludes

that Respondent did not violate the Florida Civil Rights Act of

1992, and is not liable to Petitioner for discrimination in

employment based on race, age, or retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the F lorida Commission on Human

Relations enter a final order dismissing PetitionerÓs

Discrimination Complaint and Petition for Relief consistent with

the F indings of F act and C onclusions of L aw of this Recommended

Order.

DONE AND ENTERED this 20th day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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

F iled with the Clerk of the

Division of Administrative Hearings

this 20th day of March , 2017 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Carol A . Koros

DillardÓ s Inc.

1600 Cantrell Road

Post Office Box 486

Little Rock, Arkansas 72203

Christopher W. Deering, Esquire

Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

420 North 20th Street, Suite 1900

Birmingham, Alabama 35203

(eServed)

Jancie Vi nson

5350 Southwest 62nd Avenue

Gainesville, Florida 32608

Carla D. Franklin, Esquire

Carla D. Franklin, P.A.

204 West University Avenue, Suite 3

Gainesville, Florida 32601

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relat ions

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 Recommen ded Order should be filed with the agency that

will issue the Final Order in this case.