16-005002 Lawrence N. Brown, Iii vs. Kmart-Sears Holding Corp. Status: Closed Recommended Order on Wednesday, June 14, 2017.

Summary: Petitioner did not prove, by a preponderance of the evidence, that Respondent discriminated against him on the basis of race and religion or that Respondent retaliated against him for engaging in a protected activity in violation of section 760.10.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE N. BROWN, III,

Petitioner,

vs. Case No. 16 - 5002

KMART - SEARS HOLDING CORP.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes, 1/ before

Cathy M. Sellers, an Administrative Law Judge ( " ALJ " ) of the

Division of Administrative Hearings ( " DOAH " ), by video

teleconference on February 1 a nd 10, 2017, at sites in Lauderdale

Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Lawrence Brown, III, pro se

6440 North West 110th Avenue

Pompano Beach, Florida 33076

For Respondent: Thomas G. Reynolds , Esquire 2/

Seyfarth Shaw LLP

Suite 2500

1075 Peachtree Street , Northeast

Atlanta, Georgia 30309

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent engaged in an

unlawfully discriminatory employment practice agains t Petitioner

on the basis of race and religion, and retaliated against him, in

violation of the Florida Civil Rights Act of 1992 ( " FCRA " ) .

PRELIMINARY STATEMENT

On or about March 10, 2016, Petitioner, Lawrence N.

Brown, III, filed an Employment Charge of Discrimination with the

Florida Commission on Human Relations ( " FCHR " ) , alleg ing that

Respondent, Kmart Corporation, 3 / through its employee agents,

engaged in unlawful employment practices in violation of

section 760.10 , Florida Statutes . Specifically , Petitioner

allege d that Respondent discriminated against him with respect to

terms, conditions, and privileges of employment on the basis of

his race and religion in violation of section 760.10(1)(a) and

that Respondent retaliated against him because he op posed, made a

charge of, and participated in an investigation regarding

Respondent's alleged discriminatory actions against him in

violation of section 760.10(7).

On or about July 18, 2016, FCHR issued a " No Reasonable

Cause Determination." Petitioner t imely filed a Petition for

Relief, and on August 30, 2016, FCHR referred the matter to DOAH

for assignment of an ALJ to conduct a de novo hearing pursuant to

sections 120.569 and 120.57(1).

The final hearing initially was set for November 8, 2016,

but w as continued and res cheduled for February 1, 2017. The

final hearing commenced on February 1, 2017, but did not conclude

that day , so was rescheduled for , and was completed on ,

February 10, 2017.

At the final hearing, Petitioner testified on his own

behalf. Petitioner's Exhibits A, A - 1, A - 2, B, D, E, and G were

admitted into evidence without objection, and Petitioner's

Exhibits C and F were admitted into evidence over objection.

Respondent presented the testimony of David Leach. Respondent's

Exhibits 4, 7, 9, 11, 13 through 18, 21, 30, 31, and 34 through

36 were admitted into evidence without objection, and

Respondent's Exhibits 8 and 20 were admitted into evidence over

objection. Joint Exhibit 2 also was admitted into evidence .

The two - volum e Transcript was filed with DOAH on March 20,

2017, but was determined to be incomplete. The complete version

of the Transcript was filed on March 31, 2017. Pursuant to

Respondent's motion, the parties were given until April 18, 2017,

t o file their proposed recommended orders. Respondent timely

filed its Proposed Recommended Order on April 14, 2017 , and

Petitioner timely filed his Proposed Recommended Order on

April 17, 2017 . Both p roposed r ecommended o rders were duly

considered in pr eparing this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner, Lawrence N. Brown, III, is a n African -

American male and is of the Christian faith.

2 . Petitioner has been employed with Respondent since

April 14, 2014, at its store located at 3800 Oakwood Boulevard,

Hollywood, Florida ( hereafter, the " Store " ). A s of the final

hearing, Petitioner continued to be employed by Respondent at the

Store .

3 . Respondent is a corporation doing business in Florida.

Respondent owns and oper ates the S tore at which Respondent was

employed at the time of the alleged d iscriminatory and

retaliatory actions .

II. Employment Charge of Discrimination and Petition for Relief

4. Petitioner filed an Employment Charge of Discrimination

( " Discrimination Charge " ) with FCHR on or about March 10, 2016. 4/

The pages attached to the Discrimination Charge form ( which

apparently was filled out in typewritten form by FCHR staff ) were

prepared by Petitioner .

5. On or about July 18, 2016, Responde nt issued a

Determination: No Reasonable Cause, determining that Petitioner

had not shown reasonable cause to believe that Respondent had

committed unlawful employment practice s against him.

6. On or about August 16, 2016, Petitioner timely filed a

P etition for Relief requesting a hearing to determine whether

Respondent committed unlawful employment practices against him.

7. The Petition for Relief alleges that Respondent engaged

in unlawful discrimination against him on the basis of both his

ra ce and religion, and also alleges that Respondent engaged in

unlawful retaliation. These charges , as specifically set forth

in the Petition for Relief, are the subject of this de novo

proceeding . 5/

8. In the Petition for Relief, Petitioner claims that

Respondent discriminated against him on the basis of race by

failing to promote him into supervisory or managerial positions

for which he claims he was qualified; by giving him lower scores

on his employment evaluations than were given to a white employee

working in the same position (part - time hardlines merchandiser);

by not paying him as much as they paid th at same white employee ;

and by retaining that same white employee as a part - time

hardlines merchandiser in the Toy Department , while moving

Petitione r to another position as cashier.

9. Petitioner also claims that Respondent discriminated

against him on the basis of his religion by scheduling him to

work on Christmas Day 2015, while giving other employees that day

off.

10. Additionally, Petition er claims that Respondent

retaliated against him for complaining to Respondent's corporate

legal department about having to work on Christmas Day 2015 , by

removing him as a hardline merchandiser in the Toy Department and

reassigning him to a cashier positi on, then subsequently

effectively " terminating " (in his words) his employment.

11. Petitioner seeks an award of $5,000,000 in damages in

this proceeding .

III. Background Events

12. As noted above, Petitioner was hired by Respondent on

or about April 14, 2014. Petitioner initially was h ired in a

part - time position as a part - time o vernight h ardlines

r eplenishment a ssociate . In this position, Petitioner 's work

scheduling availability was between 10:30 p.m. and 6 :00 a.m.

13. When Petitioner was hi red, Alberto Rodriquez was the

Store manager.

1 4 . In his position as a part - time employee with

Respondent , Petitioner was not guaranteed any specific number of

weeks or hours of employment in any given calendar year , nor was

he guaranteed that he would attain full - time employee status.

The number of work hours Petitioner was assigned was dependent on

the company's business needs and on Petitioner's ability to meet

the applicable job performance standards. Petitione r

acknowledged these and the other conditions of his employment as

evidenced by his signature on the Pre - training Acknowledgment

Summary dated April 14, 2014.

1 5 . As a result of the elimination of the overnight

rep lenishment associate position, o n or ab out October 2 6 , 2014,

Petitioner was transferred to a nother position as a part - time

daytime hardlines merchandiser . In this position, his work

scheduling availability was between 6:00 a.m. and 1:00 p.m.

16. As a h ardlines m erchandiser, Petitioner was responsible

for stocking store shelves with merchandise, straightening

merchandise on store shelves, putting returned merchandise on

shelves, and generally keeping the h ardlines departments neat and

the shelves fully stocked.

1 7 . The Toy Department at the Store was one of several

departments that were categorized as " h ardlines " departments.

1 8 . In his duties as a hardlines m erchandiser, Petitioner

was not assigned to any specific h ardlines department , and his

responsibili ties entailed working in any h ardlines department as

needed. However, as a practical matter, due to the work demand,

Petitioner worked mostly, if not exclusively, in the Toy

Department until he was reassigned to the cashier position after

Christmas 2015.

1 9 . David Leach became the Store m anager in April 2015 .

20 . At some point before Christmas Day 2015, the work

schedule for the week of December 20 through 26, 2015, was

posted. Petitioner was scheduled to work on Christmas Day,

December 25, 2015 . Petitioner did not volunteer, and had not

otherwise requested, to work on Christmas Day 2015.

2 1 . The Store w as closed on Christmas Day 2015, which was a

pa id holiday for Respondent's employees.

2 2 . On or about December 23, 2015, Petitioner contacted

Respondent's corporate legal department , requesting to be removed

from the work schedule for Christmas Day 2015 . Pursuant to a

directive from Respondent's corporate office, Petitioner was

removed from the work schedule for that day .

2 3 . Petitioner was not required to work on Christmas Day

2015 , and he did not work that day. Petitioner was paid for the

Christmas Day holiday.

2 4 . Although the Store was c losed on Christmas Day 2015,

some Store employees were scheduled to work , and did work , t hat

day on a volunteer basis, for which they were paid.

25 . On December 28, 2015, Leach presented Petitioner with a

Request for Religious Accommodation form to sign . Petitioner

signed the form. The form was marked as showing that Respondent

" granted " the religious accommodation.

2 6 . Also on December 28, 2015, Leach informed Petitioner

that he had eliminated the part - time daytime h ardlines

m erchandiser position . He offered Petitioner other part - time

positions , either as a cashier or in making pizza at the Little

Caesar's pizza station in the Store. Leach did not offer any

other positions to Petitioner at that time .

27. Petitioner was reassigned to the cash ier position, but

informed Leach that he was unable to stand in a single place for

long periods of time due to injuries he previously had sustained

while working on the overnight shift.

28. Petitioner was reassigned to the cashier position,

effective Ja nuary 3, 2016. 6/

2 9 . Petitioner's hourly wage did not change when his

position change d to cashier. H e continued to make the same

hourly wage that he had made as a daytime h ardlines m erchandiser .

30 . At some poi nt on or after December 28, 2015 , Petitioner

signed a Personnel Interview Record form that reflected his

revised work hours associated with his position change to

cashier. The form stated his availability to work between

8:00 a.m. and 5:00 p.m. , Monday through Saturday.

31 . The evidence is unclear as to whether Petitioner did

( or did not ) call in to inform the appropriate Store personnel

that he would not be working on Tuesday, December 29, or on

Thursday, December 31, 2015. Regardless , the persuasive evidence

shows that Pet itioner worked on Monday, December 28, 20 15; did

not work on Tuesday, December 29 , or Thursday, December 31 , 2015 ;

and worked on Saturday, January 2, 2016.

3 2 . The work schedule for the week of January 3 through 10,

2016, was computer - generated some ti me during the week of

December 2 7 , 2015, through January 3, 2016. If an employee does

not report to work when scheduled and does not call in to be

excused from work on those days, this situation is termed a "no

call - no show," and the employee will not be scheduled to work the

following week. This is to ensure that there are cashiers

available as needed to work on upcoming dates.

3 3 . Regardless of whether Petitioner did or did not call in

to inform Respondent he would not be working on Tuesday,

December 29, or Thursday, December 31, 2015, the posted work

schedule for the week of January 3 through 10, 2016, show ed

Petitioner as not being scheduled to work that week.

3 4 . However, t he evidence shows that Petitioner did, in

fact, work a total of 15.9 0 hours the wee k of January 3

through 10, 2016.

3 5 . The work schedule posted as of Saturday, January 9,

2016, also show ed Petitioner as not being scheduled to work the

week of January 10 through 16 , 2016 .

3 6 . However, t he evidence shows that Pet itioner worked a

total of 15.41 hours the week of January 10 through 16, 2016 .

3 7 . At some point between January 13 and January 26 , 2016,

Petitioner was moved from the cashier position to the Store's

date code specialist position.

3 8 . The date code specialist position also is a part - time

position, for which Petitioner is paid the same hourly wage as he

was paid as a daytime hardlines merchandiser.

3 9 . As of the final hearing, Petitioner continued to be

employed by Respondent , working as the Store's date code

specialist .

IV. Rac e Discrimination Claim s

40 . As previously noted, Petitioner began working for

Respondent at the Store on April 14, 2014. His initi al

employment position was as a part - time overnight replenishment

associate. In October 2014, he moved to a part - time daytime

hardlines merchandiser position. In both positions, he was

responsible for stocking and restocking merchandise in all

hardlines departments , so was not assigned exclusively to the

Store's Toy Department . H owever, as noted above, due to work

demand in the Toy Department , Petitioner did most, if not all, of

his work in that department until he was moved to the cashier

position in late December 2015 . 7 /

41 . Petitioner contends that starting in mid - 2014, 8 / he

periodically requested to be promoted to " Toy Lead " or to another

supervisory or managerial position. H e testified that he had

undertaken many activities and implemented various systems to

improve the efficiency and productivity of the Toy Department and

other departments at the store, and had documented these

activities and transmitted that information to the Respondent for

in clusion in his personnel file. He testified that rather than

promoting him to a supervisory position in the Toy Department ,

Respon dent instead hired a non - African - American person to fill

that position . 9 / Petitioner additionally testified that he

periodically would request to be transferred or promoted to other

supervisory positions, but that Respondent did not grant these

requests . H e contends that since he was qualified for these

positions, the only basis for Respondent's decision to fill those

positions with other employees was discriminati on against him on

the basis of his race.

4 2 . In response , Leach testified that there was n o formal

" Toy Lead " position at the Store; rather, t he person supervising

the Toy Department is an assistant store manager , a position that

entails supervising other hardlines departments besides the Toy

Department . Further, Leach testified that in his view,

Petitioner was not qualified to occupy certain supervisory

positions because of his lack of experience in those areas and

his relatively short period of employment with Respondent. Leach

also testified that Petitioner had not ever formal ly applied for

a promotion through Respondent's online application process.

4 3 . Petitioner further asserts that Respondent

discriminated against him on the basis of race because he was not

paid the same amount as Corey Harper, a white male hardlines

m erchandiser who also often worked part - time in the Toy

Department on the afternoon or evening shift, even th ough he

worked harder and r eceived higher evaluation scores than did

Harper. 10/

4 4 . However, Leach credibly testified that Respondent does

not currently base its pay rate for part - time employees on job

performance evaluation scores, but instead pays them a set hourly

pay rate. According to Leach, Respondent has not given an hourly

pay rate raise to part - time employees since 2009, so that any pa y

differential depended on whether employees were hired before or

after 2009 . Leach credibly testified that Harper has been

employed by Res pondent since 2004, so had received hourly pay

rate raises between 2004 to November 200 8 ; this would result in

his hourly pay rate being higher than Petitioner's , even though

both are part - time employees.

4 5 . Petitioner testified that when he was moved from the

daytime hardlines merchandiser position to the cashier position

after Christmas 2015 , he made it clear tha t he wanted to remain

in the Toy Department ; however, Respondent transferred him out of

that department while allowing Harper to remain in a hardlines

merchandiser position , which entailed work in the Toy Department .

Petitioner also made clear that he wis hed to return to the

hardlines merchandiser position in the Toy Department when s uch a

position became available; however, at some point, Leach

reassigned Carol Yaw , who was white, from her previous office

manager job to a hardlines merchandiser position. Petitioner

asserts that Respondent's actions in allowing Harper to remain as

a part - time hardline merchandiser and reassigning Yaw to a

hardlines merchandiser position constituted discrimination

against him on the bas is of his race.

4 6 . However, Leach credibly testified that the part - time

daytime hardlines merchandiser position that Petitioner had

occupied was eliminated because of the lack of work in that

position, primarily due to declining Toy Department sales a fter

the holiday season . Additionally, immediately after Christmas

2015, Leach consolidated the overnight merchandise unloading and

daytime shelf stocking positions and moved the overnight

unloading employees to the day shift, where their duties consist

o f unloading merchandise from trucks and stocking shelves. 11/

Leach credibly testified that Harper was not moved from his

position because Leach had specifically decided not to move

others unaffected by this reorganization out of their existing

positions, and that Harper was an afternoon/evening hardlines

merchandiser . Leach also credibly testif ied that he had moved

Yaw to a full - time hardlines merchandiser position after her

office manager position was eliminated because she was a 25 - year

employee of Respondent , and he felt that she deserved that

position out of loyalty for being a long - term emp loyee of

Respondent.

4 7 . Petitioner also contends that Respondent's evaluation

of his job performance was unfair because it was conducted by an

a ssistant s tore m anager , Marjorie McC ue , who was not his direct

supervisor. Specifically, he contends that McCue was unfamiliar

with his job performance , so did not appropriate ly consider , in

his evaluation, improv ed Toy Department sales performance and

efficiency that were due to measures that he had implemented .

Petitioner also contends that McCue initially deliberately gave

him an inaccurately low job performance evaluation in an effort

to create a record to support terminating his employment, but

that when he complained, those lower scores were changed to

higher scores.

4 8 . T he only performance evaluation regarding Petitioner's

job performance that was admitted into evidence i s a document

titled " Employee Review " that was dated January 31, 2015;

Petitioner received a 3.10 overall performance score on this

performance evaluation. 1 2 / The Employee Review for Harper dated

January 31, 2015, a lso was admitted into evidence; Harper's

overall performance score was 3.00.

4 9 . Upon careful consideration of the competent substantial

evidence in the record, it is determined that Petitioner failed

to carry his burden 1 3 / to establish a prima facie case of

employment discrimination by Respondent on the basis of his race .

To do so, Petitioner must show that: (1) he is a member of a

protected class; (2) he was subject to adverse employment acti on;

(3) he was qualified to do the job; and (4) his employer treated

similarly - situated employees outside of his protected class more

favorably than he was treated . 14/

50 . It is undisputed that Petitioner , as an African -

American , is a member of a prote cted class.

5 1 . However, t h e evidence does not support a finding that

Petitioner was subject to adverse employment action.

5 2 . With respect to his assertion that Respondent failed to

promote him on the basis of his race, Petitioner needed to show

that , in addition to being a member of a protected class , he

applied for and was qualified for a promotion; that he was

rejected despite his qualifications; and that other equally or

less - qualified employees outside of his class were promoted. 1 5 /

5 3 . While Petitioner frequently sen t email correspondence

to Respondent's corporate legal office requesting to be promoted,

the evidence does not show that he follow ed Respondent's formal

online application process for applying for promotions. 16 /

Further, alt hough the evidence indicates that Petitioner is very

hard - working, energetic, bright, and detail - oriented, he did not

demonstrate that those characteristics necessarily qualified him

for the supervisory positions about which he inquired. H e also

did not demonstrate that Respondent filled the positions about

which he had inquired with less - qualified non - African - American

employees. In fact, Petitioner acknowledged, in testimony at the

final hearing and in email correspondence with Respondent's

corporate le gal office, that in his view, some of the individuals

who had been promoted were qualified for the positions to which

they had been promoted. For these reasons, it is determined that

Petitioner did not demonstrate adverse employment action by

Respondent b y failing to promote him on the basis of his race.

5 4 . Petitioner also did not show that he received a lower

pay rate and lower evaluation scores than did other similarly -

situated employees who were not members of his protected class.

The only comparato r to which Petitioner referred was Harper, the

other part - time hardlines merchandiser that sometimes worked in

the Toy Department . However, as discussed above, t he evidence

showed that Harper actually scored lower than did Petitioner on

the January 31, 20 15, evaluation . 17 / Further, Harper was not

similarly situated to Petitioner with respect to pay rate because

Harper is a longer - term employee who had received hourly pay rate

raises in 2005 through 2008 , before Respondent ceased giving

rais es of hourly pay rates in 2009 , but Petitioner was hired in

2014, after Respondent ceased giving hourly pay raises.

5 5 . Petitioner also did not show, by the greater weight of

the evide nce, that Leach discriminated against him on the basis

of his race by electing to reassign him, rather than Harper, to a

cashier position after Christmas 2015, and by later reassigning

Yaw to fill a full - time hardlines merchandiser position that

included responsibi lities of working in the Toy Department . As

discussed above, when Leach decided to eliminate the part - time

daytime hardlines merchandiser position, he chose not to reassign

other employees who were not directly affected by the elimination

of that position . The evidence shows that Leach did not reassign

Harper to a cashier position because Harper's position was not

directly affected by the elimination of the daytime hardlines

merchandiser position ÏÏ not because Leach favored Harper over

Petitioner due to ra ce. Also as discussed above, Leach

reassigned Yaw to a full - time hardlines merchandiser position

after her office manager position ÏÏ also a full - time posi tion ÏÏ was

eliminated. Because Yaw was a full - time employee, she did not

fill a position for which Pet itioner was eligible as a part - time

employee; furthermore, under any circumstances, she was not

similarly sit uated to Petitioner because of her long er term of

employment with Respondent. For these reasons, neither Harper

nor Yaw are si milarly situated to Petitioner for purposes of

being comparators .

5 6 . For these reasons, it is found that Petitioner did not

establish a prima facie case of employment discrimination against

him by Respondent on the basis of his race.

5 7 . Further, even if Petitioner had established a prima

facie case of employment discrimination on the basis of race,

Respondent articulated legitimate, non - discriminatory reasons for

its actions with respect to Petitioner .

5 8 . A s discussed above, Responde nt did not promote

Petitioner because he did not go through Respondent's formal

application process for seeki n g promotions, and also because

Leach determined, on the basis of Petitioner's lack of experience

and employment longevity, that Petitioner was not qualified for

supervisory positions at that time.

59 . Additionally , Leach's decisions regarding reassigning

Petitioner to a cashier position while retaining Harper and

reassigning Yaw to hardlines merchandiser positi ons were

management decisions based on business needs and requirements,

rather than on the basis of race.

6 0 . Petitioner did not present evidence showing that these

reasons were a pretext for discrimination against him on the

basis of his race.

6 1 . Based on the foregoing, it is dete rmined that

Respondent did not discriminate against Petitioner on the basis

of his race , in violation of section 760.10(1)(a).

V. Reli gious Discrimination Claim

6 2 . As previously discussed, s hortly before Christmas Day

2015, the employee work schedule for the week of December 20

through 26, 2015, was posted in the Store. This schedule showed

Petitioner as being scheduled to work from 6:00 a.m. to 3:00 p.m.

on Christmas Day, which fell on a Fr iday in 2015.

6 3 . The Store was closed on Christmas Day 2015, which was a

paid employee holiday; however, employees could work that day on

a voluntary basis and they would be paid time - and - a - half for

doing so. As noted above, Petitioner did not volun teer or

otherwise indicate that he was willing to work that day.

6 4 . Upon seeing that he was scheduled to work on Christmas

Day, Petitioner contacted Respondent's corporate l egal

d epartment, which then contacted Leach.

6 5 . Leach had Petitioner remove d from the work schedule for

December 25, 2015 . Petitioner was not required to work that day,

did not work that day , and was paid for the Christmas Day 2015

holiday.

6 6 . Petitioner claims that by scheduling him to work on

Christmas Day, Respondent disc riminated against him on the basis

of his religion. Petitioner asserts, as evidence of Respondent's

discriminatory intent, that there are others who worked in the

Toy Department who were not of the Christian faith, so that if

someone was needed to work on Christmas Day, one of those

individuals cou ld instead have been scheduled.

6 7 . As previously noted, o n December 28, 2015, Leach

presented Petitioner with a Request for Religious Accommodation

form to sign. Leach credibly testified that the purpose of

having Petitioner sign the form was to have a written record of

Petitioner's religion so that Petitioner would not again be

assigned to work on a Christian religious holiday.

6 8 . Petitioner signed the form, but pr otested being

required to do so, because, in his view, Respondent already was

on notice that he is of the Christian faith because he always had

Sundays off of work . Petitioner testified that when he was hire d

in April 2014 (notably, before Leach became Store manager) he had

verbally requ ested Sundays off, effectively plac ing Respondent on

notice that he is of the Christian faith. On this basis,

Petitioner asserts that Leach and other managers and supervisors

at the Store knew that he is Christian and that they nonetheless

intentionally s cheduled him to work on Christmas Day.

69 . Petitioner acknowledged that he never heard Leach make

any comments with respect to his (Petitioner's) religion.

7 0 . Leach credibly testified that before he was contacted

by Respondent's corporate office re garding Petitioner's concerns

about being scheduled to work on Christmas Day 2015, he did not

know that Petitioner was Christian, and he had not inferred that

from the fact that Petitioner did not work on Sundays. 18 /

7 1 . Leach testified, credibly and persuasively , that

Petitioner was scheduled to work on Christmas Day 2015 by

mistake. He explained that the work schedule for the week of

December 20 through 2 6 , 2015, was generated using a pre - populated

" template " method . This method , which is a me thod by which the

Store sets its weekly work schedules, entails week - to - week

copying of the regular ÏÏ i.e., " template " ÏÏ work schedule for all

Store employees, then m odifies that schedule as needed to address

changes to individual employee work schedules. Leach explained

that in using this method to establish the work schedule for the

week of December 20 through 26, 2015, Respondent had

inadvertently scheduled employees who had not volunteered to work

on Christmas Day . He surmised that this was a possible

explanation for why Petitioner mistakenly was scheduled to work

that day.

7 2 . As noted above, Petitioner was not the only Store

employee scheduled to work on Christmas Day 2015.

7 3 . Upon consideration of the competent substantial

evidence in the record, it is determined that Petitioner failed

to carry his burden to establish a prima facie case of employment

discrimination by Respondent on the basis of his religion . To do

so, Petitioner must show that he : (1) was a member of a

pro tected class; (2) informed Respondent of this belief; and

( 3 ) suffered adverse employment action as a result of failing to

comply with the employment requirement that conflicted with his

belief .

7 4 . It is undisputed that Petitioner falls within a

protected class for purposes of a discrimination claim on the

basis of religion .

75 . However, Petitioner did not prove the existence of the

other two elements necessary to establish a prima facie case of

employment discrimination on the basis of religi on.

76 . Specifically, Petitioner did not prove that Respondent

knew t hat he was Christian or that his Christian faith prohibited

him from working on Christmas Day. As noted above, Petitioner

was hired at the Store before Leach became Store manager.

Fur ther, because Petitioner had not been required to complete a

written rel igious accommodation form when he was hired in

April 2014, Respondent did not have any written notice in its

possession that would have informed Leach that Petitioner was

Christian or that Petitioner needed certain Christian holidays,

such as Christmas Day, off of work. As noted above , Leach

credibly testified that he did not know that Petitioner was

Christian until Respondent's corporate legal office contacted him

regarding Petitioner's religion - based complaint about being

scheduled to work on Christmas Day 2015 .

7 7 . The evidence also shows that Petitioner did not suffer

any adverse employment action. A s soon as Respondent was

informed of Petitioner's complaint, Petition er was removed from

the work schedule for Christmas Day 2015, did not work that day,

and was paid for that holiday.

7 8 . For these reasons, it is determined that Petitioner did

not establish, by the greater weight of the evidence, a prima

facie case of discrimination by Respondent against him on the

basis of his religion.

79 . However , even if Petitioner had established a prima

facie case of discrimination on the basis of religion, Respondent

produced credible , persuasive evidence showing a legitimat e, non -

discriminatory basis for its action ÏÏ that is, that through the

Store's use of the template work scheduling system, Petitioner

was mistakenly scheduled to work on Christmas Day 2015. As noted

above, as soon as Petitioner complained to Respondent, Re spondent

immediately accommodated his request by removing him from the

Christmas Day 2015 work schedule .

80 . Petitioner did not present any evidence showing that

Respondent's proffered reason for scheduling him to work on

Christmas Day 2015 was a pretext for discrimination on the basis

of his religion.

8 1 . For the se reasons, it is determined that Petitione r did

not show, by a preponderance of the evidence, that Respondent

discriminated against him on the basis of his religion, in

violation of section 760.10(1)(a).

VI. Retaliation Claim

8 2 . Petitioner claims that Respondent retaliated against

him for co mplaining to Respondent's corporate legal office a bout

being scheduled to work on Christmas Day 2015 by reassigning him

from his position as a daytime hardlines merchandiser ÏÏ a position

that he clearly liked and at which he believed he excelled ÏÏ to a

cashi er position ÏÏ a position that he clearly considered demeaning

and that also was physically difficult for him to perform due to

a previous injury.

8 3 . Petitioner was informed that he was being reassigned to

a cashier position only five days (and the first workday) after

he complained to Respondent's corporate legal office about being

scheduled to work on Christmas Day. 19 /

8 4 . Petitioner testified that Leach told him that the part -

time daytime merchandiser position had been eliminated due to the

lack of work demand, particularly in the Toy Department , after

the Christmas season was over.

8 5 . Petitioner testified that when he asked Leach about

available positions in to which he could transfer, Leach told him

that only cashier or pizza - making positions were available.

Petitioner provided evidence that a softlines customer service

job , which he claims he would have preferred , was open at the

time he was reassigned and that Leach did not inform him of that

opening or offer him that posi tion.

8 6 . Petitioner also disputes that the part - time daytime

merchandiser job that he had occupied had been eliminated. As

evidence, he contends t hat Harper continued to occupy that

position , and also that Leach subsequently reassigned Yaw to a

full - time hardlines merchandiser rather than transferring him

back into a hardlines merchandiser position , as he had requested .

8 7 . The part - time cashier position to which Petitioner was

transferred was the same level of employment position in

Responden t's employment hierarchy as was the part - time daytime

merchandiser position that he previously held. Additionally, as

discussed above, as a part - time cashier, Petitioner continued to

receive the same hourly pay rate and work scheduling availability

as he had received when he was employed as a part - time daytime

hardlines merchandiser.

8 8 . As discussed above, on or before January 26, 2016,

Petitioner was reassigned to the Store's date code specialist

position. According to Leach, that position came open a fter

Petitioner was reassigned to the cashier position, and Leach

believed that the d ate code specialist position would play well

to Petitioner's strength s of being methodical and detail -

oriented.

89 . Petitioner bears the burden, by the greater weight of

the evidence, to establish a prima facie case of retaliation by

Respondent. To establish a prima facie case of retaliation ,

Petitioner must show that: (1) he engaged in a protected

activity; (2) he suffered a materially adverse employment action;

and (3) there was a causal connection between the protected

activity and the adverse action . 2 0 / For the following reasons, it

is found that Petitioner did not satisfy his burden to establish

a prima facie case of retaliation.

9 0 . It is determined that Petitioner engage d in a

" protected activity " when he complained to Respondent's corporate

legal office , by email dated December 23, 2015, that he had been

scheduled to work on Christmas Day 2015. The email stated:

Attn: Legal

My schedule states that I am scheduled for

Christmas day. I am a Christian I exercise

religious right no work on a high religious

day. Christmas is the day I celebrate the

birth of Christ thus the name Christmas day.

A Jewish person was assigned to my department

(toys) and was allowed to have off all the

Jewish holidays. I was told that is his right

and approved, I said fine, I don't know who

was arguing this but this was

fine with me, because I have many Jewish

friends , so I unders tand.

Easter which falls on a Sunday and Christmas

are my holidays. I am requesting off. I am

requesting Christmas day off with holiday pay

as my religious day, just like I requested

Sundays off. Only I can change my religious

day and work on Sunday, which I might have to

when promoted.

If management tells me I cannot be promoted

because I exercise my religious right not to

work on the seventh day, then I will have to

do as Jewish people have done for centuries,

they are released from the commandment that

they may only eat Kosher. If captured by the

enemy they may eat to survive. So if I can

only be manager if I give up my religious

right not to work on Sunday, then I will do

what management says is a requirement.

Thank you.

Lawrence Brown

Kmart - H ollywood, Fl Oakwood Plaza

9 1 . To be a " protected activity , " the activity giving rise

to the alleg ed retaliatory action must, at the very least,

communicate to the employer that the complainant believes the

employer is engaging in discrimination against him.

9 2 . Petitioner's email can be read broadly to inform

Respondent that he believed he was being discriminated against on

the basis of his religion by being scheduled to work on Christmas

Day 2015 . To th at point, Petitioner specifically comp are d his

circumstances to those of a Jewish employee who had requested and

been allowed to have a ll Jewish holidays off of work. While not

specifically using the word " discrimination, " Petitioner's email

can be reasonably read to place Respondent on notice that

Petitioner believed he was being treated differently than a

similarly - situated employee who was not a member of Petitioner's

protected class and who had been excused from work on the

holidays observed by his religion . Additionally , Leach wa s aware

that Petitioner had complained to Responde nt's corporate legal

department about being scheduled to work on a Christian holiday .

Accordingly, it is determined that Petitioner has established the

" protected activity " element of his retaliation claim .

9 3 . However, Petitioner did not show that he suffered a

materially adverse employment action as a result of having

engaged in protected activity. H is reassignment to the part - time

cashier position effectively was a lateral transfer that did not

affect his hourly pay rate or hours of work scheduling

availability. Although Petitioner subjectively considered the

cashier position to be demeaning and below his skill level 2 1 / and

although his job respons ibilities changed, the evidence shows

that Petitioner was not reassigned to a n objectively less

prestigious or otherwise inferior employment position.

9 4 . Furthermore , in any event, approximately three weeks

a fter Petitioner was reassigned to the cashier position,

Respondent reassigned him to a position as th e Store's date code

specialist ÏÏ a p osition that he has officially held since

January 26, 2016, and from which he has not requested to be

transferred . In this position, Petitioner earns the same hourly

wage and has the same number of hours of work availability as he

did in the hardlines merchandiser and cashier positions. He is

solely responsible in the Store for ensuring that date - coded

merchandise on the shelves has not exceeded its expiration date ÏÏ

a position that entails significant responsibility and, as Leach

put it , is " very important."

9 5 . The evidence also does not support Petitioner's

assertion that his removal from the work schedule in early

January meant that he was effectively te rminated.

9 6 . Although the evidence does not clearly show what days

Petitioner did not work during the week after Christmas in 2015 ,

or whether he did ( or did not ) call in to notify Respondent that

he would be absent , the evidence does clearly establis h that

Petitioner was not scheduled to work the first week of

January 2016 , and it is also clear that management personnel at

the Store did not believe that he had called in to notify them of

his absence . Leach explained that if an employee does not report

to work when scheduled and does not call in to notify the Store

of his or her absence , the employee will not be scheduled to work

the following week ; this is to ensure that there are enough

cashiers available as needed to work i n the upcoming week . In

any event, when Petitioner noticed that he had not been scheduled

to work, he contacted the Store's human relations manager, who

told him to come back to work . In fact, Petitioner worked the

first and second weeks of January 2016, and thereafter , and he

continues to be employed at the Store. Further, Petitioner was

never told or otherwise notified, formally or informally, that

his employment with Respondent had been terminated.

9 7 . For these reasons, it is determined that Peti tioner did

not suffer a materially adverse employment action by being

reassigned for a short period of time from a part - time daytime

hardlines merchandiser to a part - time cashier position.

9 8 . Petitioner also did not demonstrate the existence of a

" ca usal link " between a protected activity and adverse employment

action. As discussed above, Petitioner's sending an email to

Respondent's corporate legal office about being scheduled to work

on Christmas Day 2015 constituted a " protected activity."

However, as discussed above, it is determined that Respondent did

not engage in an adverse employment action ; thus, Petitioner's

engagement in protected activity did not " cause " Respondent to

take any material adverse employment action against him.

99 . Furthermore, in any event, Respondent articulated a

legitimate, non - discriminatory reason for reassigning Petitioner

to a cashier position shortly after Christmas Day 2015 ÏÏ

specifically, that the part - time daytime merchandiser p osition

that Petitioner had held was eliminated due to seasonal workload

decline and other business management decision s reallocat ing

hardlines merchandise - related tasks between the overnight and

daytime shifts .

10 0 . For these reasons, it is determined that Petitioner

did no t prove, by the greater weight of the evidence, that

Respondent retaliated against him for engaging in a protected

activity, in violation of section 760.10(7).

VII. Damages

10 1 . Petitioner has requested an award of damages in the

amount of $5,000,00 0. However, section 760.11 (6), which governs

the award of remedies in administrative proceedings brought under

the FCRA , does not authorize DOAH to award damages.

10 2 . Further , the evidence establishes that Respondent did

not engage in any unlawful employment practices with respect to

Petitioner , and , in any event , Petitioner did not present any

evidence to support his entitlement to an award of damages in

this proceeding.

CONCLUSIONS OF LAW

10 3 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding. § § 120.569, 120.57(1), Fla. Stat.

10 4 . The FCRA is codified at sections 760.01 through

760.11, Florida Statutes . 2 2 /

10 5 . Section 760.11(1) (a) makes it an unlawful employment

practice to : " discharge or 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 's race, color, religion,

sex, pregnancy, national origin, age, handicap, or marital

status. " This provision makes employment discrimination on the

basis of race and religion unlawful .

10 6 . Section 760.10(7) states:

I t is an unlawful employment practic e for an

employer to discriminate against any person

because that person has opposed any practice

which is an unlawful employment practice

under section 760.10, or because that person

has made a charge, testified, assisted, or

participated in any manner in an

investigation, proceeding, or hearing under

this section.

This provision makes it unlawful for an employer to retaliate

against a person for oppos ing unlawful employment practices,

including discrimination .

10 7 . Respondent is an " employer , " as t hat term is defined

in section 760.02(7). 2 3 /

I. Burden and Standard of Proof and Applicable Case Law

10 8 . In cases involving claims of unlawful employment

discrimination and retaliation, the burden of proof is on the

complainant ÏÏ here, Petitioner ÏÏ to establish, by a preponderance

of the evidence, the conduct comprising the alleged unlawful

discrimination and the conduct comprisi ng the alleged

retaliation. EEOC v. Joe's Stone Crabs, Inc. , 296 F.3d 1265,

1273 (11th Cir. 2002 ); St. Louis v. Fla. Int'l Univ. , 60 So. 3d

455, 458 - 59 (Fla. 3d DCA 2011). The " preponderance of the

evidence " standard means the " greater weight " of the evi dence, or

evidence that " more likely than not " tends to prove the fact at

issue. As discussed above, this means that even if the

undersigned were to determine that the competent substantial

evidence presented by each party should be given equal weight,

Pe titioner would not have prove d his claims by the " greater

weight " of the evidence , so would not prevail in this proceeding .

See Gross v. Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

10 9 . The FCRA is modeled after Title VII of the Civil

Rights Act of 1964, the principle federal anti - discrimination

statute. Accordingly, case law interpreting Title VII is

applicable to proceedings under the FCRA. Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla 3d DCA 2009);

Brand v. Fla. Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994) (when a 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).

II. Discrimination Claims

1 1 0 . When bringing a claim of discrimination under the FCRA

based on rac e, religion, or other protected characteristic , a

complainant may proceed on a theory of disparate impact,

disparate treatment, or both. EE OC v. Joe's Stone Crab, Inc. ,

220 F.2d 1263, 1273 (11th Cir. 2000).

1 1 1 . To prevail in a disparate impact case, the complainant

must present evidence proving the existence of an adverse or

disproportionate impact on him or her as a member of a protecte d

class of persons resulting from facially neutral acts or

practices by Respondent. Id. at 1274.

1 1 2 . By contrast, to prevail on a disparate treatment

employment discrimination claim, the complainant must show that

he or she was intentionally treated differently than similarly -

situated employees on the basis of one or more characteristic s

protected under the applicable anti - discrimination statute.

Ricci v. DeStephano , 557 U.S. 557, 577 (2009); EEOC v.

Cat ast rophe Mgm t. Sols . , 852 F.3d 1018, 1024 (11th Cir. 2016) .

1 1 3 . Here, Petitioner has alleged facts giving rise to a

claim of disparate treatment on the basis of his race and

religion. 2 4 / U nder the d isparate treatment theory of

discrimination , the claim is that the employer has treat ed some

people l ess favorably than others because of their race, color,

religion, sex, or national origin. Teamsters v. U.S. , 431 U.S.

324, 335 n.15 (1977). Liability in a disparate treatment case

depends on whether the protected trait actually motivated the

employer's decision. Hazen Paper Co. v. Biggins , 507 U.S. 604,

610 (1993). "The ultimate question in every employment

discrimination case involving a cl aim of disparate treatment is

whether the plaintiff was the victim of intentional

d iscrimination." Reeves v. Sanderson Plumbing Prods., Inc. , 530

U.S. 133, 153 (2000) (emphasis added) .

1 1 4 . Discriminatory intent can be established through

direct or circu mstantial evidence. Schoenfeld v. Babbitt , 168

F.3d 1257, 1266 (11th Cir. 1999).

1 1 5 . Direct evidence of discrimination is evidence that, if

believed, establishes the existence of discrimination as the

basis for an employment decision without inferenc e or

presumption. Id. Direct evidence is composed of only " the most

blatant remarks, " the i ntent of which could be nothing other than

to discriminate on the basis of some impermissible factor. Id.

11 6 . Here, Petitioner did not present direct evidence of

discrimination by Respondent on the basis of his race or

religion . Accordingly, a finding of discriminatio n , if any, in

this case must be based on circumstantial evidence. 2 5 /

1 1 7 . Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the burden - shifting

analysis established by the U.S. Supreme Court in McDonnell

Douglas v. Green , 411 U.S. 792 (1973 ) , applies . Under this

analytical framework , the complainant bears the initial burden of

establishing a prim a facie case of discrimination. Id. at 802.

1 1 8 . F or Petitioner to establish a prima facie case of

unlawful employment discrimination on the basis of race ,

Petitioner must show that: (1) he is a member of a protected

class; (2) he wa s subject to adverse employment action; (3) he

was qualified to do the job ; and (4) his employer treated

similarly - situated employees outside of his protected class more

favorably than he was treated . See id. ; Knight v. Baptist Hosp.

of Miami , 330 F.3d 1313, 1316 (11th Cir. 2003) .

1 19 . To establish a prima facie case of unlawful employment

discrimination on the basis of religion under the McDonnell

burden - shifting standard, Petitioner must show that he : (1) is a

member of a protected class; (2) infor med the employer of this

belief; and ( 3 ) suffered adverse employment action as a result of

failing to comply with the employment requirement that conflicted

with his or her belief. Abeles v. Metro. Wash. Airports Auth. ,

2017 U.S. App. LEXIS 1400, *10 (4th Cir. 2017); s ee MackMuhammad

v. Cagle's Inc. , 379 Fed. App x . 801, 803 - 804 (11th Cir. 2010);

see also Lubetsky v. Applied Card. Sys. , 296 F.3d 1301, 1305

(11th Cir. 2002).

1 2 0 . Under the McDonnell burden - shifting analysis, i f the

complainant meets his or her burden to establish a prima facie

case , the burden then shifts to the employer to articulate a

legitimate, non - discriminatory explanation for the employment

action. See McDonnell , 4 11 U.S. at 802 - 803 . Case law

characterize s this burden as " exceedingly light, " in which the

employer must only produce evidence that would allow a rational

fact finder to conclude that the employer's actions were not

motivated by discriminatory animus. Alexander v. Fulton Cnty. ,

207 F.3d 1303 (11th Cir. 2000) ; St andard v. A.B.E.L . Servs. , 161

F.3d 1318, 1331 (11th Cir. 1998) .

1 2 1 . If the employer meets its burden of production, the

inference of discrimination is erased and the burden shifts back

to the complainant , who must then present evidence to show the

reasons given by the employer are a pretext for discrimination ÏÏ

that is, that the employer's proffered reason for the employment

action is not worthy of belief , or that a discriminatory basis

more likely than not motivated the employment decision . Tex.

De p't of Cmty. Affairs v. B urdine , 450 U.S. 248, 255 - 56 (1981) ;

Schoenfeld , 168 F.3d at 1267.

D iscrimination on the Basis of Race

1 2 2 . Applying these standards to this proceeding, it is

concluded that Petitioner did not establish, by the preponderance

of the evidence, a prima facie case of discrimination against him

by Respondent on the basis of his race. As discussed above,

Petitioner did not prove that Respondent failed to promote him

due to his race, nor did Petitioner prove that Respondent paid

him l ess than a white hardlines merchandiser due to his race. 2 6 /

He also failed to prove that Respondent discriminated against him

on the basis of race by reassigning him to a cashier position ,

while retaining and reassigning white employees to hardlines

merch andiser positions. 2 7 /

12 3 . H owever, even if Petitioner had established a prima

facie case, Respondent articulated legitimate, non - discriminatory

reasons , discussed above, for its actions reg arding Petitioner's

employment .

1 2 4 . As discussed above, Pe titioner did not present

evidence showing that these reasons were a pretext for

discrimination.

1 2 5 . Accordingly, it is concluded that Petitioner did not

prove, by a preponderance of the evidence, that Respondent

discriminated against him on the basis of his race in violation

of section 760.10(1)(a).

Discrimination on the Basis of Religion

1 2 6 . I t is also concluded that Petitioner did not prove, by

a preponderance of the evidence, that Respondent dis criminated

against him on the basis of his religion.

1 2 7 . As discussed above, Petitioner is a member of a

protected class.

12 8 . However, the evidence shows that Leach, who was

responsible for setting the work schedule for the week that

included Chr istmas Day 2015, did not know that Petitioner was

Christian until he complained to Respondent's corporate legal

office about being scheduled to work that day.

1 29 . Upon being informed that Petitioner requested to have

Christmas Day 2015 off of work, Re spondent immediately removed

him from the Christmas Day 2015 work schedule, and Petitioner was

not required to work , did not work, and was paid for that day.

Accordingly, Petitioner did not suffer any adverse employment

action.

1 30 . Further, Respondent articulated a legitimate, non -

discriminatory reason why Petitioner had been scheduled to work

on Christmas day 2015 ÏÏ namely, that he had been scheduled by

mistake.

13 1 . Petitioner did not present evidence showing that

Respondent's articulated reason w as a pretext for discrimination.

1 3 2 . For these reasons , it is concluded that Petitioner

failed to prove that Respondent discriminated against him on the

basis of his religion in violation of section 760.10(1)(a).

III . Retaliation Claim

1 3 3 . The FCRA's anti - retaliation provision, codified at

section 760.10(7), prohibits employer actions that "discriminate

against " an employee because he or she has " opposed " a practice

that the statute forbids, or has testified, assisted, or

participated in an inve stigation, proceeding, or hearing .

Burlington N . & Santa Fe R y . Co. v. White , 548 U.S. 53, 59

(2006). The term " discriminate against " has been found to refer

to " distinctions or differences in treatment that injure

protected individuals." Id. at 59 - 60.

1 3 4 . To establish a prima facie case of retaliation, the

employee must show that: (1) he participated in an activity

protected by the statute; (2) he suffered a materially adverse

employment action; and (3) there is a causal connection between

participation in the protected activity and the adverse

employment action. Debene v. BayCare Health Sys. , 2017 U.S. App.

LEXIS 9494 at *10 (11th Cir. 2017); Gupta v. Fla. Bd. of Regen ts ,

212 F.3d 571, 587 (11th Cir. 2000) ; St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455 (Fla. 3d DCA 2011).

13 5 . For opposition to an employment practice to constitute

activity that is protected, that opposition must be sufficient to

communicate to the employer that the employee believes that the

employer is engaging in unlawfully discriminatory conduct.

Murphy v. City of Aventura , 616 F. Supp. 2d 1267, 12 79 (S.D. Fla.

2009 ) ; Webb v. R & B Holding Co ., Inc. , 992 F. Supp. 1382, 1389

(S.D. Fla. 1998).

1 3 6 . A " materially adverse employment action " is an

ultimate employment decision, such as discharge or failure to

hire, or other conduct that alters the employee's compensation,

terms, conditions, or privileges of employment, deprives him or

her of employment opportunities, or adversely affects his or her

status as an employee. Gupta , 212 F. 3d at 587. Whether an

employee has suffered a materially adver se employment action is

determined on a case - by - case basis . Id. at 586. The change to

the terms, conditions, or privileges of the employment must be

objectively serious and material. Gray v. City of Jacksonville ,

492 Fed. Appx. 1, 9 (11th Cir. 2012). A change in employment

duties , by itself, does not arise to the level of a materially

adverse employment action. Holmes v. Newark Pub . Sch. , 2016 U.S.

Dist. LEXIS 68494, *8 (D.N.J. 2016). A nominally lateral

reassignment that do es not significantly negati vely af fect an

employee's compensation , prestige, responsibility, or opportunity

for advancement is not considered a materially adverse employment

action. Nichols v. S. Ill. Univ . - Edwardsville , 510 F.3d 772, 780

(7th Cir. 2007). Case law also makes clear that position

changes , even to more inconvenient jobs, that may cause an

employee to suffer a " bruised ego " but that do not adversely

affect the employee's pay, prestige, supervisory

responsibilities, or earning potential are not " materially

adverse " empl oyment actions. Brennan vactor Supply Co. , 237

Fed Appx. 9, 24 (6th Cir. 2007); D'Ambrosio v. Crest Haven

Nursing and Rehab. Ctr. , 2016 U.S. Dist. LEXIS 129398, *28

(D.N.J. 2016).

1 3 7 . If the employee establishes a prima facie case of

retaliation, the burden shifts to the employer to articulate a

legitimate, non - discriminatory reason for its action. Addison v.

Fla. Dep't of Corr. , 2017 U.S. App. LEXIS (11th Cir. 2017);

Sierminski vansouth Fin. Corp . , 216 F.3d 945, 950 (11th Cir.

2000). As in discrimination cases, this burd en is a very light

one. Holifield v. Reno , 115 F. 3d 1555, 1564 (11th Cir. 1997).

1 3 8 . The burden then shifts to the employee to show that

the employer's proffered reason is m ere pretext . James v. Total

Sols., Inc. , 2017 U.S. App. LEXIS 9488, *5 (11th Cir. 2017);

Quigg v. Thomas Cty. Sch. Dist. , 814 F.3d 1227 , 1237 (11th Cir.

2016) .

1 39 . As explained above , it is concluded that Petitioner

engage d in a protected activity in contacting Respondent's

corporate legal office about his being Christian and being

assigned t o work on Christmas Day 2015 .

1 4 0 . However, the evidence shows that Respondent did not

take materially adverse employment action against Petitioner.

His rea ssignment from a part - time daytime hardlines merchandiser

position to a part - time daytime cashier position 28 / did not

adversely affect his hourly pay rate or work scheduling. As

noted above, a lthough Petitioner considered the reassignment

demeaning and al though his job respo nsibilities changed , this is

not sufficient to render his reassignment to a cashier position a

materially adverse employment activity. Further, the evidence

clearly establishes that Respondent did not terminate Petitioner.

In fact, sh ortly after he was re assigned to the cashier position,

Leach transferred Petitioner to the date code specialist

position ÏÏ a position that Leach believed would play to

Petitioner's strengths. In that position ÏÏ which Petitioner

continues to hold ÏÏ he earns the same hourly wage, has the same

number of hours of work availability, and occupies an important

employment position at the Store.

1 4 1 . Further, the evidence failed to establish the

existence of a " causal link " between Petitioner's protected

acti vity and a material adverse employment action.

142. C ase law holds that if there is close temporal

activity between an employee's protected activity and a

materially adverse employment action by the employer, a causal

link between the two may be inferr ed . Olmstead v. Taco Bell

Corp. , 141 F.3d 1457, 1460 (11th Cir. 1998). A s noted above,

here, only five days elapsed b etween Petitioner 's complaint to

Respondent's corporate legal department about being scheduled to

work on Christmas Day 2015 and his reas signment to a part - time

cashier position.

143. However, a s discussed above, the evidence shows that

Respondent did not take a materially adverse employment action

against Petitioner in reassigning him to a cashier position .

B ecause there was no materi ally adverse employment action to

which Petitioner's protected activity could be linked, the

" causal " element of Petitioner's retaliation claim is not met.

Clover v. Total Sys. Servs. , 176 F.3d 1346, 1354 (11th Cir.

1999).

144. Further, even if Petitioner had proved a prima facie

case of retaliation, Respondent articulated a legitimate, non -

discriminatory basis for his reassignment to a part - time cashier

position, and Petitioner did not present evidence showing that

this articulated basis was a p retext for discrimination.

14 5 . For these reasons, it is concluded that Petitioner did

not show, by the greater weight of the evidence, that Respondent

retaliated against him in violation of section 760.10(7).

IV. Damages

14 6 . As d iscussed above, sect ion 760.11( 6 ) does not

authorize an award of damages in administrative proceedings;

however, even if authorized, Petitioner would not be entitled to

an award of damages because he did not prove, by a preponderance

of the evidence, that Respondent discrimin ated against him on the

basis of his race or religion, in violation of section

760.10 (1)(a) .

147. In sum, there is no doubt, in the undersigned's view,

that Petitioner sincerely believed that Respondent discriminated

and retaliated against him. However , for the reasons discussed

herein, neither the facts nor the law support his claims in this

proceeding.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations iss ue a final order dismissing the Petition for Relief.

DONE AND ENTERED this 14 th day of June , 2017 , in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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

Division of Administrative Hearings

this 14 th day of June , 2017 .

ENDNOTES

1/ All references to chapter 120, Florida Statutes, are to the

2016 version of Florida Statutes, unless otherwise stated.

2/ Two days before the final hearing, Respondent moved,

pursuant to Florida Administrative Code Rule 28 - 106.106, to have

Mr. Reynold s, who is not a member of the Florida Bar, authorized

to appear on its behalf in this proceeding as a qualified

representative. At the final hearing, Petitioner did not object

to Mr. Reynolds' appearance as a qualified representative. The

undersigned det ermined, during the final hearing, that

Mr. Reynolds met the applicable standards in rule 28 - 106.106(4)

to appear as a qualified representative, and granted the motion.

3/ Petitioner is employed by Kmart Corporation. Kmart

Corporation is a wholly - ow ned subsidiary of the Sears Holding

Corporation, which does not have any employees. The style of

this case has been amended to reflect the correct name of

Respondent, which is the employer against which Petitioner filed

discrimination and retaliation clai ms.

4/ The Discrimination Charge was date - stamped as having been

filed on March 10, 2016. Petitioner signed the form on or about

February 22, 2016, and the attached pages prepared by Petitioner

were dated February 25, 2016.

5/ This is a de novo proceeding, and the Petition for Relief,

rather than the Notice of Hearing issued by the then - assigned

ALJ, sets forth the discrimination and retaliation charges that

are at issue in this proceeding.

6/ However, as discussed below, the evidence indicates that

Petitioner actually worked as a cashier two days the week of

December 27, 2016, through January 3, 2016.

7/ According to Petitioner, Alberto, the previous Store manager,

had assigned him exclusively to the Toy Department and h ad

trained him to merchandise the Toy Department .

8/ The competent substantial evidence does not establish

precisely when Petitioner requested to be promoted to supervisory

positions. Section 760.11(1) establishes a 365 - day statute of

limitation betwee n the alleged violation of chapter 760 and the

filing of a complaint with the FCHR. The Charge of

Discrimination was filed on March 10, 2016; accordingly, any

alleged discrimination that occurred more than 365 days prior to

that date , i.e., March 11, 2015 , are time - barred by section

760.11(1).

9/ Petitioner claims that on various occasions, he had requested

to be made supervisor of the Toy Department , but that when the

previous supervisor left the position, Respondent hired a person

named "Will" to fill the position. Petitioner did not contend or

prove that Will was not qualified for the position.

10/ In his Petition for Relief, Petitioner initially alleged

that, on the basis of his race, he had received lower evaluation

scores than Harper had receive d. At the hearing, he acknowledged

that FCHR staff had brought to his attention that he had received

a higher evaluation score than Harper on the January 31, 2015,

Employee Record that had been submitted to FCHR in support of his

Charge of Employee Discri mination.

11/ According to Leach, this workforce reorganization has saved

the Store approximately $2,000 per week in labor costs.

12/ It is noted, based on Respondent's Exhibit 15, that

Petitioner is reviewed on an annual basis, and, per that exhib it,

would have been reviewed on January 31, 2016. Petitioner

asserted that on May 27, 2016 ÏÏ while his Discrimination Charge

was pending before FCHR ÏÏ he was given a performance review by

McCue and Leach in which he received scores of "2's" (with "3's"

bein g required) for certain performance categories. If that were

the case, it would give rise to a strong inference that the out -

of - cycle evaluation was retaliatory, and if Petitioner had

suffered adverse employment action as a result, Respondent's

action may have given rise to a claim of retaliation for engaging

in protected activity. However, it is noted that no independent

documentation regarding the May 27, 2016, evaluation (such as the

evaluation instrument itself) was made part of the record. In

any ev ent, the evidence did not show that this evaluation

resulted in any adverse employment action against Petitioner. As

discussed above, Petitioner remains employed at the Store as a

part - time date code specialist , which, as previously discussed is

an equiva lent position to his daytime merchandiser and cashier

positions with respect to hourly pay rate and hours of work.

13/ As discussed in greater detail below, Petitioner has the

ultimate burden of proof in this case to prove, by a

preponderance, or "great er weight," of the evidence, that

Respondent engaged in unlawful discrimination against him on the

basis of his race and religion and retaliated against him for

complaining about the alleged discrimination. This necessarily

means that even if the undersig ned determines that the competent

substantial evidence presented by each party is equally credible,

so should be given equal weight, Petitioner would not have proved

his claims by the "greater weight" of the evidence, so would not

prevail in this proceedin g.

14/ Knight v. Baptist Hosp. of Miami, Inc. , 330 F.3d 1313, 1216

(11th Cir. 2003); see McDonnell Douglas v. Green , 411 U.S. 792,

802 (1973) .

15/ " Failure to promote " is a type of adverse employment action.

Brown v. Ala. Dep't of Transp. , 597 F.3d 1160, 1174 (11th Cir.

2010); Vinson v. Koch Foods of Ala., LLC , 2013 U.S. Dist. LEXIS

139118, *10 - 11 (M.D. Ala. 2013).

16/ On this point, Leach credibly testified that Respondent has

an online application process for seeking promotions. The

e vidence shows that Petitioner had access to Respondent's job

opening postings through the Store's computers for employee use,

so had access to jobs postings and the formal online process for

applying for promotions and other jobs in the company.

17/ As previously noted, the Employee Review documents for the

January 31, 2015, evaluation review were the only job performance

evaluation documents tendered at the final hearing and admitted

into the evidentiary record of this proceeding.

18/ Leach noted that many Store employees have specific days of

the week off of work, and that he typically does not question the

reasons why they have those days off. He testified that if an

employee needs a specific day of the week off, that request is

typically grant ed and the Store prepares its work schedule

accordingly.

19/ As further discussed below, a causal link may be inferred

if there is close temporal proximity between the protected

activity and the adverse employment action. Respondent's

Exhibit 20, the Personnel Interview Record dated January 5, 2016,

states that Petitioner was reassigned to a cashier position

effective January 3, 2016.

20/ Sullivan v. AMTRAK , 170 F.3d 1056, 1059 (11th Cir. 1999);

Murphy v. City of Aventura , 616 F. Supp. 2d 1267, 1280 (S.D. Fla.

1998).

21/ See Brennan vactor Supply Co. , 237 Fed Appx. 9, *24 (6th

Cir. 2007)(subjective dissatisfaction with a job reassignment

that does not adversely affect the employee's wages, prestige,

supervisory resp onsibilities, or advancement opportunities does

not constitute a materially adverse employment action).

22/ The discriminatory conduct at issue in this proceeding is

alleged to have occurred between April 2014 and January 2016, and

the retaliatory condu ct is alleged to have occurred in December

2015 and January 2016. During this time frame, the 2014 and 2015

versions of Florida Statutes were in effect. Although during the

2015 Legislative Session, section 760.10 was amended to add

pregnancy to the clas ses protected under the FCRA, that amendment

is not germane to this proceeding. Therefore, as a practical

matter, the 2014 and 2015 versions chapter 760 are the same for

purposes of this proceeding.

23/ Section 760.02(7) defines "employer" as "any perso n employing

15 or more employees for each working day in each of 20 or more

calendar weeks in the current or preceding year, and any agent of

such a person."

24/ In other words, Petitioner claims that he was treated in a

discriminatory manner because o f his race and religion.

25/ "Circumstantial evidence" is evidence of some collateral fact

from which the existence or non - existence of some fact in

question may be inferred as a probable consequence. See United

States v. Silvestri , 409 F.3d 1311, 1328 (11th Cir. 2005) . It is

often referred to as "indirect evidence." Black's Law Dictionary

576 (7th ed. 1999).

26/ For Harper to have been a valid comparator for purposes of

determining whether Petitioner was treated in a discriminatory

manner with resp ect to his pay, Harper needed to be "similarly

situated" to Petitioner in all material respects. Feise v. N .

Broward Hosp. Dist. , 2017 U.S. App. LEXIS 5222, *11 (11th Cir.

2017); Rioux v. City of Atlanta, Ga. , 520 F.3d 1269, 1280 (11th

Cir. 2008). As dis cussed above, Harper was employed by

Respondent for several years before Petitioner was hired, and

received hourly wage raises between 2005 and 2008, before

Respondent ceased giving raises to hourly employees.

Accordingly, Harper is not similarly situated to Petitioner.

27/ See id. As discussed above, Harper was an afternoon and

evening shift hardlines merchandiser whose position was not

affected by the elimination of the daytime merchandiser, and Yaw

was a long - time full - time employee who was reassign ed to a full -

time hardlines merchandiser job. Neither of these employees is

similarly situated to Respondent, who is a part - time employee who

worked, and continues to work, during the daytime shift.

28/ The evidence shows that Respondent had a formal o nline

employment position posting and application process in place and

that Petitioner had the opportunity to access Respondent's online

postings of employment positions that came open at the store.

Thus, the evidence shows that Respondent did not rely o n "word of

mouth" informal processes to provide notice of open positions;

this distinguishes the circumstances in this case from other

cases in which such informal processes have been determined to

lead to racial discrimination because information regardin g open

positions was only available to non - minority employees. See

Carmichael v. Birmingham Saw Works , 738 F.2d 1126, 1133 (11th

Cir. 1984).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Lawrence Brown, III

6440 North West 110th Avenue

Pompano Beach, Florida 33076

(eServed)

Thomas G. Reynolds, Esquire

Seyfarth Shaw LLP

Suite 2500

1075 Peachtree Street , Northeast

Atlanta, Georgia 30309

(eServed)

Cheyanne Costilla, Gen eral 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.