16-005773 Rhonda R. Wilkinson vs. Publix Super Markets, Inc. Status: Closed Recommended Order on Tuesday, January 17, 2017.

Summary: Petitioner did not prove that Publix Supermarkets discriminated against her when it terminated her for instructing subordinates to cut out-of-date meat products.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RHONDA R. WILKINSON,

Petitioner,

vs. Case No. 16 - 5773

PUBLIX SUPER MARKETS, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this case wa s heard on November 16,

2016, via video teleconference in Tallahassee and Panama City,

Florida, before Suzanne Van Wyk, a designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert L. Thirston, II, Esquire

Thirston Law Office

P ost O ffice Box 19617

Panama City Beach, Florida 32417

For Respondent: Tammie L. Rattray, Esquire

Ford & Harrison, LLP

Suite 900

101 East Kennedy Boulevard

Tampa, Florida 33602

STATEMEN T OF THE ISSUE S

Whether Petitioner was subject to an unlawful employment

practice by Respondent based on her sex in violation of section

760.10, Florida Statutes (2015) 1/ ; and if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

On January 21, 2016 , Petitioner filed an Employment Charge

of Discrimination with the Florida Commission on Human Relations

(Commission) which alleged that Respondent violated section

760.10 by discriminating against her on the basis of her sex.

On August 29, 2016, the Comm ission issued a Determination:

No Cause and a Notice of Determination: No Cause, by which the

Commission determined that reasonable cause did not exist to

believe that an unlawful employment practice occurred. On

September 29, 2016, Petitioner filed a Pe tition for Relief with

the Commission, which was transmitted that same date to the

Division of Administrative Hearings to conduct a final hearing.

The final hearing was scheduled for November 16, 2016, via

video teleconference in Tallahassee and Panama C ity, Florida,

and commenced as scheduled.

At the final hearing, Petitioner testified on her own behalf

and introduced no exhibits.

Respondent presented the testimony of Stephen Tucker,

Jeffrey Siltanen, Steven Southerland, and John Sperandeo, the

Manager, Assistant Manager, and Assistant Meat Department

Managers, respectively, of Publix Supermarkets (Publix) Store

Number 0843 in Lynn Haven, Florida; as well as Kris Price, a

Publix Meat Retail Improvement Specialist; Nicole Shurger, a

Publix Retail Associat e Relations Specialist; and Patrick

McGowan, a Publix District Manager. RespondentÓs Exhibits R26,

R30 through R32, R34, R36, R37, R39, and R41 through R44 were

admitted in evidence.

A one - volume Transcript of the proceedings was filed on

December 20, 2 016. The undersigned granted PetitionerÓs

unopposed Motion f or an Extension of Time to file proposed

recommended orders, rendering post - hearing filings due on or

before January 13, 2017. Respondent timely filed a Proposed

Recommended Order which has been considered by the undersigned in

preparing this Recommended Order.

FINDING S OF FACT

Background

1. Petitioner, Rhonda Wilkinson, was employed by Publix in

the meat department from January 8, 2004, until her discharge on

January 12, 2016.

2. There are fou r sub - departments of the Publix meat

department: lunch meat and cheese, seafood, frozen foods, and

fresh meats.

3. Petitioner began as a clerk in the lunch meat and cheese

sub - department at the Thomas Drive Publix in Panama City. After

completing meat c utter training, Petitioner was promoted to the

position of meat cutter and transferred to store 0823 in Lynn

Haven (the Lynn Haven store). She was subsequently promoted to

Assistant Manager of the meat department at the same store.

4. In March 2014, Peti tioner was promoted to Me at

Departmen t Manager at store number 1005 in Pan ama City Beach (the

beach store ) , where she remained until July 2015.

5. During the busy season, the beach store would cut meat

Ðas fast as they got it inÑ in order to keep up wit h demand. To

help meet demand, John Sperandeo, an Assistant Meat Department

Manager from the Lynn Haven store frequently assisted Petitioner

as a meat cutter at the beach store. By all accounts,

PetitionerÓs relationship with Mr. Sperandeo was profession al and

without conflict.

6. Petitioner transferred back to the Lynn Haven store as

Meat Department Manager in July 2015. Petitioner supervised,

among others, Mr. Sperandeo and Stephen Southerland, Assistant

Meat Department Managers, and a meat cutter nam ed Ervin Broxton.

7. At the Lynn Haven store , Petitioner testified that

Mr. Sperandeo would not Ðget on the same pageÑ with her in terms

of filling out paperwork properly. Petitioner complained that he

inappropriately delegated that responsibility. Peti tioner

testified that it was her job, as manager, to set an example for

all her subordinates of the proper way to execute Publix Ós

policies, even completion of paperwork.

8. Petitioner introduced no evidence of complaints filed

against Mr. Sperandeo or an y counseling or disciplinary action

taken against him.

9. By all accounts, PetitionerÓs career with Publix was

without incident.

Meat Department Policies

10. Fresh meats are processed by the Publix meat department

as follows: employees unload the suppli er Ós delivery trucks,

scan the bar code on each box of meat product into the meat -

cooler inventory, and store the product in the meat cooler. Each

box is dated with the supplier Ós pack date of the product.

11. PublixÓ s policy is to store product in the c ooler such

that the meat with the oldest pack date is most readily

accessible. The employee unloading the product is responsible to

stack boxes so that the oldest product is on the top of the

stack.

12. Publix maintains a strict policy governing the shel f

life of all meat products. The shelf life is the amount of time

a product is available for sale, and is noted on the product

packaging as the Ðsell by date.Ñ

13. Pursuant to PublixÓ s policy, fresh meat products

generally have a five - day shelf life (the supplier Ós pack date

plus four days).

14. It is against Publix Ós policy for an employee to apply

additional shelf life to any product when it reaches the end of

the original shelf life. If product must be rewrapped during its

shelf life, due to wet or b loody outside packaging, the employee

must maintain the original sell - by date on the rewrapped package.

15. The meat cooler is inventoried each day at or before

store closing for product exceeding its shelf life, or Ðout - of -

date.Ñ This practice is referr ed to as Ðdating the cooler.Ñ All

product identified as out - of - date is designated for disposal and

scanned out of the inventory system. Each morning, the store

generates an adjustment transaction report which lists the

specific products which were dispos ed of at the store on the

prior closing date. The report also includes the Ðextended costÑ

of disposing of the particular products from the department. The

adjustment transaction report is one tool the meat department

uses to determine the appropriate am ount of product to order from

each supplier , as well as the amount of product to cut on a given

day.

The Dismissal Incident

16. On January 6, 2016, Petitioner worked the early shift

and was nearing the end of the shift, which is 4:00 p.m.

Mr. Sperandeo w as scheduled to close, and was preparing to take

the standard lunch break -- 4:00 - 5:00 p.m. -- for a closer.

Mr. Braxton was dating the cooler at PetitionerÓs direction, and

Mr. Southerland was assisting him.

17. Mr. Southerland and Mr. Braxton exited the co oler and

reported to Petitioner that they had identified six boxes of out -

of - date product. Petitioner said something to the effect of

ÐdonÓt throw it out, John [Sparendeo] will cut it anyway.Ñ

Mr. Braxton re - entered the cooler. Mr. Sperandeo was in clos e

proximity preparing to take his lunch break and remarked that he

would not cut the meat. Mr. Southerland, who had reached the end

of his shift, left the store.

18. Petitioner did not deny making the statement. Her

position is that the statement was me ant as a joke and made in an

off - hand manner. However, she did acknowledge that the remark

was unprofessional and she knew she should not have said it to

her subordinates.

19. Shortly thereafter, Petitioner entered the cooler and

told Mr. Braxton to put the boxes of out - of - date meat aside so

that Mr. Sperandeo could Ðtake care of itÑ at closing.

Mr. Sparendeo did indeed dispose of the six boxes of out - of - date

product and the quantities were included on the following dayÓs

adjustment transaction report.

20 . At no time did Petitioner explain to Mr. Sparendeo that

she had made the statement in jest and retract her direction to

cut the out - of - date product.

21. As he left the store, Mr. Southerland approached

Mr. Sparendeo, who was taking his lunch break in h is car in the

parking lot. They discussed the incident and determined that

they should report the incident to their superior.

22. Mr. Southerland and Mr. Sparendeo approached Jeff

Siltanen, the store Assistant Manager, who was on his lunch break

in his c ar. They related the incident to Mr. Siltanen.

Mr. Southerland left for the day, and Mr. Sparendeo returned to

the meat department after his lunch.

23. Later that evening, Mr. Siltanen and store Manager,

Stephen Tucker, visited the meat department. Mr. Sparendeo

showed them the subject boxes of out - of - date product, which

Mr. Siltanen photographed. At Mr. TuckerÓs direction,

Mr. Siltanen also took written statements about the incident from

both Mr. Braxton and Mr. Sparendeo.

24. Later that same evening , Mr. Tucker notified Publix

Regional Manager, Pat McGowan, of the incident.

25. The following day, January 7, 2016, Mr. McGowan met

with Mr. Tucker and Nicole Shurgar from Publix Human Resources.

26. When Petitioner returned to work on January 7, 2016,

she was called to Mr. TuckerÓs office. When she arrived, she was

met by Mr. Tucker, Mr. McGowan, and Ms. Shurgar. Mr. McGowan

asked Petitioner about the allegation that she had instructed

Mr. Sparendeo to cut out - of - date product. Petitioner admitted

mak ing the statement, although she explained that it was meant in

jest.

27. Mr. McGowan then informed Petitioner that she was

suspended for a week, pending an investigation into the incident.

28. During the investigation, Ms. Shurgar interviewed

Mr. Spare ndeo, Mr. Southerland, and Mr. Broxton. She found their

statements consistent and corroborating. M s. Shurgar also

reviewed PublixÓs policies and her files relating to discipline

for violations of PublixÓs food safety policies. Ms. Shurgar

recommended to Mr. McGowan that termination was appropriate.

29. On January 12, 2016, Mr. McGowan discharged Petitioner

from her employment with Publix. The discharge notification

contained the following description:

On 1/6/16 after learning of multiple boxes of

out of date product and in the presence of

witnesses, Rhonda instructed AMM [Assistant

Meat Market Manager] John Sparendeo to cut

the out of date product. Rhonda is being

discharged for violating Publix food safety

practices and instructing another associate

to violate the practice.

Comparison Incident

30. Petitioner complains that her discharge was

discriminatory in light of the more favorable treatment of male

associates who violated PublixÓs food safety practices.

31. Over the 2015 Thanksgiving holidays, an associate at

the Lynn Haven store informed Mr. Siltanen that the sell - by date

of a pot roast had been extended. The associate had been

considering buying the pot roast on a Friday and noted the sell -

by date of November 30, 2015. On Sunday the 30th, t he associate

observed that the package had been rewrapped, repriced, and the

sell - by date extended.

32. Mr. Siltanen retrieved the subject p ot roast and

briefly asked the meat d epartment employees if they knew anything

about the rewrapping and redating of the product. No employee

was forthcoming.

33. Mr. Siltanen notified Mr. Tucker of the incident via

email. Mr. Tucker interviewed the employees, but did not obtain

any information. Mr. Siltanen then viewed the Lynn Haven storeÓs

internal video feed, fr om Friday evening through Sunday morning,

to determine which employee had rewrapped and redated the

product.

34. Mr. SiltanenÓs review of the video was inconclusive.

Mr. Sparendeo, Mr. Broxton, and a third employee, a meat cutter

named Addison Sharp, all appeared in the video handling a variety

of meats in the case. However, Mr. Siltanen was unable to

determine whether the particular pot roast was handled by any of

the three men specifically.

35. Petitioner was not working on the date of this

incident, and was out on vacation for a few days during the

Thanksgiving holidays.

36. Mr. Siltanen and Mr. Tucker decided that, since they

could not tie a specific employee to the redated meat, they would

hold a departmental meeting, bring the incident to the atte ntion

of all meat department employees, and review department policy on

shelf - life of products with all relevant employees. Mr. Siltanen

took a picture of the offending pot roast and posted it on the

bulletin board for all employees to see. He conducted the

departmental meeting the following day, December 1, 2015.

37. When Petitioner returned to work on December 1, 2015,

Mr. Siltanen informed her of the incident and decision to hold

the meeting and review policy with employees.

38. None of the three emp loyees observed in the video who

had access to the pot roast during the time it was rewrapped and

redated were disciplined in any manner. All three employees were

male.

CONCLUSIONS OF LAW

39. The Division has jurisdiction over the subject matter

and part ies to this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat.

40. Petitioner has the burden of proving by a

preponderance of the evidence that Respondent committed an

unlawful employment practice. See § 120.57(1)(j), Fla. Stat.

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

unlawful for an employer to take adverse action against an

individual because of the individual's sex.

42. The Act is patterned after Title VII of the Civil

Rights Act of 1964, as amended. Thus, case law construing Title

VII is persuasive when construing the Act. See, e.g. , Fla.

State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996).

43. Petitioner may establish unlawful discrimination based

on gender through the use of direct evidence or circumstantial

eviden ce. Harris v. Shelby Cnty. Bd. of Educ. , 99 F.3d 1078,

1083 (11th Cir. 1996). Direct evidence is evidence that, "if

believed, proves [the] existence of [a] fact in issue without

inference or presumption." Burrell v. Bd. of Tr. of Ga.

Military Coll. , 125 F.3d 1390, 1393 (11th Cir. 1997). Direct

evidence consists of "only the most blatant remarks, whose

intent could be nothing other than to discriminate" on the basis

of an impermissible factor. Carter v. City of Miami , 870 F.2d

578, 582 (11th Cir. 1989). There is no direct evidence of

gender discrimination in the record.

44. To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If

successful, this c reates a presumption of discrimination. Then

the burden shifts to the employer to offer a legitimate, non -

discriminatory reason for the adverse employment action. If the

employer meets that burden, the presumption disappears and the

employee must prove t hat the legitimate reasons were a pretext.

Valenzuela v. Globe Ground N. Am., LLC , 18 So. 3d 17 (Fla. 3d

DCA 2009).

45. Petitioner must prove discrimination by indirect or

circumstantial evidence by first establishing a prima facie case

of gender discrim ination showing (a) she is a member of a

protected class; (b) she was qualified for the job; (c) she was

subjected to an adverse employment action; and (d) other

similarly - situated employees, who are not members of the

protected group, were treated more fa vorably than Petitioner.

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973).

46. Petitioner meets three of the four elements of a prima

facie case. Petitioner is a female, a protected class. By all

accounts, Petitioner was qualified for her job, having been

promoted to the position of manager after years of experience in

subordinate, but increasingly more responsible, positions.

Petitioner suffered an adverse employment action, namely

discharge.

47. To make a prima facie case, Petitioner must also

establish that similarly - situated male employees were treated

more favorably than herself. Petitioner failed to prove that

element. While Mr. Sparendeo, Mr. Broxton, and Mr. Sharpe were

all suspected of having violated Publix product shelf - life

policy, neither the store manager nor assistant store manager

was able to prove which, if any, of them committed the

violation. Petitioner offered no evidence that any one of the

male employees violated the same policy, thus, Petitioner did

not establish the existence of a similarly - situated non -

protected comparator.

48. Even if Petitioner had proven that Mr. Sparendeo,

Mr. Broxton, or Mr. Sharpe, violated the Publix shelf - life

policy by extending the sell - by date of the pot roast, none of

those male e mployees would be an adequate comparator. An

adequate comparator must be Ðsimilarly situated Òin all relevant

respects . ÓÑ Valenzuela , 18 So. 3d at 23. In Valenzuela , the

court explained as follows:

Similarly situated employees Ò must have

reported to the same supervisor as the

[Petitioner], must have been subject to the

same standards governing performance

evaluation and discipline, and must have

engaged in conduct similar to the

[PetitionerÓs], without such differentiating

conduct that wo uld distinguish their conduct

or the appropriate discipline for it. Ó

Id . at 23 (quoting Knight v. Baptist Hosp. of Miami, Inc. , 330

F. 3d 1313, 1316 (11th Cir. 2003) . Mr. Sparendeo was

PetitionerÓs assistant manager, and both Mr. Broxton and

Mr. Sharpe were meat cutters. By contrast, Petitioner was the

department manager, in a position of authority over all the

employees to whom she was speaking on January 6, 2016, when she

remarked that Mr. Sparendeo would cut the out - of - date product.

Petitioner was responsible to upho ld store policy and ensure

that her subordinates did as well.

49. Because Petitioner failed to establish that a

similarly - situated male employee was treated more favorably,

Petitioner failed to establish a prima facie case of sex

discrimination.

50. Pe titioner seemed sincere in her explanation that the

offending remark was made in a joking manner. Unfortunately for

her, Mr. Sparendeo did not find it humorous and responded

directly that he would not cut the out - of - date product. If

Petitioner intended t he direction as a joke, she should have

clarified that with Mr. Sparendeo directly as soon as she

realized that it was inappropriate and unprofessional.

51. The undersigned is sympathetic to PetitionerÓs dismay

at being fired for making a statement she th ought was a joke.

However, it is not the undersignedÓs role to determine whether

PublixÓ s reason for terminating Petitioner was fair, but whether

it was motivated by discriminatory animus. See Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d 1354, 1 361 (Fla. 11th Cir.

1999). Petitioner did not carry her burden to demonstrate

unlawful discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief filed by

Petitioner against Respondent in Case No. 201600629.

DONE AND ENTERED this 1 7 th day of January , 2017 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Adminis trative 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 1 7 th day of January , 2017 .

ENDNOTE

1/ Except as otherwise noted herein, all references to the

Florida Statutes are to the 2015 version, which was in effect

when the alleged discriminatory action against Petitioner took

place.

COPIES FURNIS HED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Robert L. Thirston, Esquire

Thirston Law Office

Post Office Box 19617

Panama City Beach, Florida 32417

(eServed)

Tammie L. Rattray, Esquire

Ford & Harrison LLP

101 East Kennedy Boulevard, Suite 900

Tampa, Florida 33602

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServe d)

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 O rder in this case.