17-001550 Adrian Rico vs. Dillard's Status: Closed Recommended Order on Thursday, January 18, 2018.

Summary: Petitioner failed to make a prima facie case of employment discrimination; he was fired for insubordination, not because of his national origin or handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADRIAN RICO,

Petitioner,

vs. Case No. 17 - 1550

HIGBEE COMPANY, d/b/a

DILLARD'S, 1/

Respondent.

_______________________________/

RECOMMENDED ORDER

A formal hearing was convened in this case on June 29,

2017, in Tallahassee, Florida, before Suzanne Van Wyk, a duly -

designated Administrative Law Judge (ÐALJÑ) with the Division of

Administrative Hearings. The hearing was concluded on July 28,

2017, in Tallahassee, Florida, before Lawre nce P. Stevenson,

also a duly - designated ALJ with the Division of Administrative

Hearings. ALJ Stevenson is the author of this Recommended

Order.

APPEARANCES

For Petitioner: Adrian G. Rico, pro se

Building 25, Apartment 277

4000 Gulf Terrace Drive

Destin, Florida 32541

For Respondent: Christopher W. Deering, Esquire

Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

420 Nor th 20th Street, Suite 1900

Birmingham, Alabama 35203

STATEMENT OF THE ISSUE

The issue is whether Respondent, Higbee Company , d/b/a

DillardÓ s (ÐDillardÓsÑ) , discriminated against Petitioner based

upon his national origin or disability, in violation of section

760.10, Florida Statutes (2016). 2/

PRELIMINARY STATEMENT

On August 5, 2016, Petitioner , Adrian Rico ("Petitioner") ,

filed with the Flo rida Commission on Human Relations ("FCHR") an

Employment Charge of Discrimination against DillardÓs.

Petitioner alleged that he had been discriminated against

pursuant to chapter 760 and Title VII of the Federal Civil

Rights Act, based upon national orig in and handicap, as follows:

I am a Mexican male with a disability. I

have been discriminated against on the basis

of national origin and disability. I began

employment with Respondent on 4/20/2014 as a

Sales Associate and later as a Fragrance

Specialist . Respondent treated me

differently and on several instances I was

made fun of because of my accent. After I

disclosed m y disability to the Store

Manager, Allen Gustason, I was terminated on

11/29/2015. I firmly believe that

Respondent discriminated aga inst me on the

basis of national origin and disability.

The FCHR conducted an investigation of PetitionerÓs

allegations. On March 6, 2017, the FCHR issued an amended

written determination 3/ that there was no reasonable cause to

believe that an unlawful p ractice occurred. The FCHRÓs amended

determination stated as follows, in relevant part:

Complainant worked for Respondent, a retail

store, as a fragrance specialist. He

alleged that he was subjected to disparate

treatment based on his disability.

Compla inant committed several infractions.

He failed to report to work, gave gifts with

purchase for merchandise that was not part

of the gift with purchase promotion, and

walked out of a counseling session with a

supervisor. Thus, Respondent had a

legitimate nondiscriminatory reason for

terminating Complainant. Also, Complainant

alleged that he was harassed based on his

national origin. Complainant fails to prove

a prima facie case. Complainant stated that

coworkers did not invite him to office

parties and one coworker made fun of his

accent. He reported this to RespondentÓs

sales manager, who stated that Complainant

said coworkers were Ðpicking on him.Ñ

Complainant provided witness statements

which merely indicated that coworkers

disliked Complainant. Th erefore,

Complainant failed to provide evidence that

the harassment was severe or pervasive.

On March 14, 2017, Petitioner timely filed a Petition for

Relief with the FCHR. Also on March 14, 2017, the FCHR referred

the case to the Division of Administrat ive Hearings ("DOAH").

The case was assigned to ALJ Van Wyk and scheduled for hearing

on May 18, 2017. On motion of DillardÓs, a continuance was

granted and the hearing was resc heduled for June 29, 2017.

ALJ Van Wyk convened the hearing on June 29 and h eard the

testimony of Petitioner and his witnesses. DillardÓs was

allowed to defer its case - in - chief to a later date because of

the unavailability of its witness. The hearing was scheduled to

reconvene on July 28, 2017.

On June 30, 2017, ALJ Van Wyk issu ed a Notice of Ex Parte

Communication which stated as follows:

This cause came before the undersigned on

notice of a communication with Petitioner

initiated by a person affiliated with the

Division of Administrative Hearings, but who

is not an employee of the Division.

On June 29, 2017, the final hearing was

convened in this case. In attendance as an

observer was the person identified above.

The hearing was not concluded, and has been

rescheduled for July 28, 2017, for taking

testimony from Respondent. After the

conclusion of the June 29, 2017,

proceedings, the person affiliated with the

Division called Petitioner to discuss

aspects of his case. The specifics are

unclear. Nonetheless, the communication was

improper. The undersigned did not

communicat e with Petitioner, nor has she

discussed the specifics of the conversation

with either Petitioner or the person

affiliated with the Division. No

Administrative Law Judge or other employee

of the Division has discussed the merits of

PetitionerÓs case, or o f RespondentÓs

defense outside of the confines of the

administrative hearing.

It is axiomatic that there may be no written

or verbal communication between the

Administrative Law Judge and any party

concerning matters of substance in this case

unless the other parties are involved in

that communication. Despite there having

been no direct communication between the

undersigned and Petitioner, it is in the

best interests of the parties and the

Division to avoid the appearance of

impropriety or favoritism. Thus, upon the

filing of this Notice, further activities

regarding this case will be reassigned to a

different Administrative Law Judge pursuant

to separate notice.

The case was reassigned to the undersigned, who presided at

the reconvened hearing on July 28, 2017, after having reviewed

the record and read the T ranscript of the June 29, 2017 , portion

of the hearing. The hearing was completed on July 28, 2017.

At the hearing, Petitioner testified on his own behalf and

presented the testimony of Santiago Gar cia and Claudia Pimentel,

both customers of DillardÓs. PetitionerÓs Exhibit 1 was

admitted into evidence. Respondent presented the testimony of

DillardÓs menÓs D epartment M anager Mark Kronenberger.

RespondentÓs Exhibits 2, 3, 5, 8, 20, 22, 25 and 27 wer e

admitted into evidence.

The one - volume Transcript of the June 29, 2017, portion of

the hearing was filed at DOAH on July 21, 2017. The one - volume

Transcript of the July 28, 2017, portion of the hearing was

filed at DOAH on August 16, 2017. On August 22, 2017,

Respondent filed a motion to extend the time for submitting

proposed recommended orders, which was granted by O rder dated

August 25, 2017. In accordance with the O rder granting

extension, Respondent timely filed its P roposed R ecommended

O rder on September 18, 2017. On July 31 and August 16, 2017,

Petitioner filed letters addressed to the undersigned, which

have been treated without objection as PetitionerÓs P roposed

R ecommended O rder.

FINDING S OF FACT

1. DillardÓs is an employer as that term i s defined in

section 760.02(7). DillardÓs is a department store chain.

2. Petitioner, a Mexican male, was hired as a sales

associate in the menÓs department of DillardÓs store at

TallahasseeÓs GovernorÓs Square Mall on May 13, 2014.

PetitionerÓs job w as to sell menÓs fragrances directly to

customers at the store.

3. Allen Gustason was manager of the DillardÓs store at

GovernorÓs Square Mall during the time Petitioner was employed

there. Dee Thomas was the assistant store manager. Mark

Kronenberge r, who testified at the final hearing, was the menÓs

department sales manager and was PetitionerÓs direct supervisor

during the entire time that Petitioner worked at DillardÓs.

4. Petitioner started at a salary of $12.00 per hour as a

sales associate. H is job performance and pay increases were

assessed primarily on the basis of sales. On January 6, 2015,

Petitioner received a raise to $12.60 per hour. On April 14,

2015, Petitioner was promoted to the position of fragrance

specialist and received a rais e to $14.50 per hour.

PetitionerÓs promotion did not change his basic duties, i.e.,

direct sales to customers. PetitionerÓs employment at DillardÓs

ended on November 28, 2015.

5. DillardÓs did not dispute PetitionerÓs testimony that

he was a good and effective salesperson. Petitioner developed a

regular clientele of Spanish - speaking customers who liked his

ability to communicate with them in their native language.

6. At the time of his hiring, Petitioner received, read ,

and agreed to abide by Dillard Ós Associate Work Rules and

General Policies, which among other things forbade

insubordination by sales associates. ÐInsubordinationÑ was

defined to include failure to follow lawful instructions from a

supervisor and engaging in contemptuous or taunting c onduct that

undermines the authority of management.

7. As noted in the Preliminary Statement above, Petitioner

claims that he is a Mexican male with a disability. The claimed

disability is the human immunodeficiency virus (ÐHIVÑ).

DillardÓs did not disp ute that Petitioner has HIV.

8. Petitioner claims that he was harassed by fellow

employees because of his Mexican national origin. Petitioner

claims that he complained to his supervisors, Mr. Kronenberger

and Mr. Gustason, about the harassment. Peti tioner claims that

no effective action was taken to curb the harassment.

9. Petitioner described a pervasive sense of

discrimination at DillardÓs of which he became conscious only

after about a year of working there. He testified that he is

from Californ ia and had no real concept of being discriminated

against because of his Mexican heritage. It took some time for

him to realize and acknowledge to himself that it was happening.

10. However, Petitioner was unable to describe many

specific instances of di scriminatory behavior by fellow

employees. People were Ðmean,Ñ or Ðpicked on me,Ñ or ÐdidnÓt

like me,Ñ but few of PetitionerÓs complaints pointed toward

racial discrimination as opposed to personal dislike. He

complained that co - workers planned parties a nd get - togethers

away from work but neve r asked him along, even for

Mr. KronenbergerÓs birthday party, but could only speculate as

to the reason for his exclusion.

11. Petitioner testified that he was an aggressive and

successful salesperson. While its s alespeople are assigned to

specific departments, DillardÓs allows them to cross - sell in

other departments. Several of the incidents described by

Petitioner began when he took customers to other departments to

sell them something. The undersigned infers t hat at least some

of the bad feelings toward Petitioner were due to his perceived

ÐpoachingÑ of sales from other sections of the store.

12. Petitioner testified that an employee named Carol

would yell at him, apparently without provocation, so

consistentl y that he went out of his way to avoid crossing her

path. Petitioner stated that one day Carol screamed that he was

good - for - nothing and was a Ðdamn Mexican,Ñ in front of customers

and co - workers. Petitioner testified that he had no idea why

she did this because he had done nothing to provoke her. He

walked away, covering his ears from her abuse. Petitioner

testified that he went upstairs and spoke to Mr. Gustason about

the incident but that nothing was done.

13. Petitioner stated that he returned to t he sales floor.

Other employees told him that Carol had worked for DillardÓs for

many years and was a friend of Mr. Gustason and that he should

not expect anything to be done about her behavior.

14. Petitioner testified that an employee named Eric, who

w orked in the menÓs department, made fun of his accent,

particularly PetitionerÓs difficulty in pronouncing ÐSaturday.Ñ

15. Petitioner testified that another fellow employee, a

white woman named Amber who also worked in fragrance, was

constantly rude and m ean to him. In front of customers, Amber

would say that she did not know why Petitioner was there, that

he was only good for cleaning the counters. Petitioner

repeatedly complained to Mr. Kronenberger about Amber. Mr.

Kronenberger told him to continue d oing a good job and not to

focus on Amber. Petitioner stated that Mr. Kronenberger

directed Amber to stay away from PetitionerÓs counter, but she

ignored the order and continued to harass him.

16. Petitioner stated that matters came to a head when he

was helping some female customers and went to AmberÓs counter

one day. He reached behind her to get the fragrance the

customers wanted and Amber struck him with her elbow. The

customers were aghast and complained to DillardÓs management

despite PetitionerÓs entreaties that they let the matter drop.

17. Petitioner and Amber were called to the office to meet

with Mr. Kronenberger and Yami Yao, the manager of womenÓs

cosmetics. Amber denied everything. The supervisors told

Petitioner and Amber to get along. They told Amber to stay away

from PetitionerÓs counter. Petitioner testified that Amber

ignored the instruction and continued to harass him.

18. Petitioner testified that on another day he was

approached by a customer who wanted to pay Petitioner for a pair

of shoes. Petitioner testified that he asked Mr. Kronenberger

about it, because he did no t want to steal a sale or anger

anyone. Mr. Kronenberger told him that he was there to sell and

that cross - selling was fine. As Petitioner was completing the

s ale, an older white man working in the shoe department threw a

shoe at Petitioner and said, ÐYou damn Mexican, IÓm going to

raise hell against you.Ñ

19. Petitioner testified about an altercation with Risa

Autrey, a fragrance model who worked in DillardÓ s and who

Petitioner stated was another longtime friend of Mr. Gustason.

One day, Ms. Autrey approached Petitioner -- again, with zero

provoca tion, according to Petitioner -- and began berating him,

saying that she had no idea why DillardÓs kept Petitioner

ar ound. This occurred in front of co - workers and customers.

The customers went upstairs and complained to Mr. Gustason, who

followed up by admonishing Petitioner to stop telling people to

complain to him because nothing was going to come of it.

20. Petiti oner testified that a day or so after the

incident with Ms. Autrey, h e met with Mr. Gustason and

Mr. Thomas. 4/ During the course of this meeting, Petitioner

disclosed his HIV status. Petitioner testified that

Mr. GustasonÓs attitude towards him changed i mmediately, and

that Mr. Gustason had him fired two weeks later on a pretextual

charge of stealing and insubordination.

21. Petitioner testified that he got sick a few days

before Black Friday, which in 2015 was on November 27. When he

returned to work o n Novemb er 25, he attempted to give

Mr. Gustason a doctorÓs note that would have entitled Petitioner

to paid leave , but Mr. Gustason would not talk to him.

22. Petitioner worked a long shift on Black Friday. On

Saturday, November 28, 2015, he was called to Mr. ThomasÓ s

office about an altercation he had on November 25 with Ms. Yao,

the womanÓs cosmetics manager. Mr. Kronenberger was also in the

office. Petitioner testified that Mr. Thomas accused him of

stealing , as well as insubordination to Ms. Yao , and fired him.

Two mall security officers, the DillardÓs security officer, and

Mr. Kronenberger escorted Petitioner out of the store.

Petitioner testified that he was given no paperwork to

memorialize his firing or the reasons therefor.

23. Mr. Kronenbe rger testified at the final hearing. He

testified that Petitioner constantly complained about someone

not liking him or picking on him. Petitioner never gave him

specifics as to what happened. Mr. Kronenberger stated that

Petitioner never complained abo ut racial slurs or that any of

his alleged mistreatment had a discriminatory element. It was

always, ÐThis person doesnÓt like me.Ñ

24. Petitioner had issues with tardiness and absenteeism

throughout his employment with DillardÓs. Mr. Kronenberger

testi fied that there would be days when Petitioner simply would

not show up for work, or w ould send a text message to

Mr. Kronenberger saying that he had things to do or someone he

had to meet. Employment records submitted by DillardÓs

supported the contention that Petitioner was frequently late

for , or absent from , work.

25. Mr. Kronenberger testified that Petitioner was erratic

in his communications. Petitioner would send a text message

saying he could no t come in. Then he would send a text telling

Mr. Kro nenberger how hap py he was to have the job.

Mr. Kronenberger recalled once receiving a text from Petitioner

at midnight that read, ÐI know IÓve been bad.Ñ

26. In November 2015, Petitioner had six unexcused

absences, including four consecutive days from N ovember 21

through 24. Mr. Kronenberger testified that Petitioner finally

admitted that he needed to cut his hours in order to qualify for

some form of public assistance. Mr. Gustason told Petitioner

that something could be worked out to cut his hours, b ut that

just not showing up for work was unfair to Mr. Kronenberger and

the other employees.

27. Mr. Kronenberger testified that DillardÓs would

normally terminate an employee with six unexcused absences in

one month under the heading of job abandonment. He stated that

Mr. Gustason bent over backward to work with Petitioner and keep

him on the job. When Petitioner was absent, Mr. Gustason would

leave messages for him, asking him to call and let him know what

was going on.

28. During the st ring of Nove mber absences,

Mr. Kronenberger phoned Petitioner, who said that he was afraid

to come into work for fear that Mr. Gustason would fire him.

Mr. Kronenberger assured Petitioner that Mr. Gustason had no

such intent, but that in any event no one would have t o fire him

because he had no t been to work in a week. Petitioner was

effectively Ðfiring himselfÑ by abandoning his position.

29. Petitioner showed up for work on November 25, 2015, at

4:50 p.m. He had been scheduled to come in at 9:45 a.m.

Mr. Kronenb erger testified that he was not present for

PetitionerÓs altercation with Ms. Yao, but that Ms. Yao reported

she had attempted to counsel Petitioner about gifts with

purchases. The promotional gifts were to be given away only

with the purchase of certain items, but Petitioner was

apparently disregarding that restriction and giving the gifts

with non - qualifying purchases.

30. Ms. Yao told Mr. Kronenberger that Petitioner quickly

escalated the counseling into a shouting match in front of

customers and co - wo rkers. He yelled, ÐYouÓre not going to talk

to me that way.Ñ Ms. Yao told Petitioner that she worked in

another department and did not have to deal with his antics.

She told him that she was go ing to report the matter to

Mr. Kronenberger and Mr. Thomas. 5/

31. Mr. Kronenberger testified that his conversation with

Ms. Yao was brief because there was no need to give many

particulars. He was used to getting reports of employee run - ins

with Petitioner and did not need much explanation to get the

gist of wha t had happened.

32. Mr. Kronenberger decided not to raise the issue with

Petitioner on Black Friday, the busiest day of the year at the

store. On the next day, November 28, Petitioner was called into

the office to meet with Mr. Kronenberger and Mr. Thoma s.

Mr. Kronenberger testified that this meeting was not just about

the incident with Ms. Yao but also PetitionerÓs absences. In

Mr. KronenbergerÓs words, Ð[I]t was to follow up with the

incident with Yami, and it was to follow up with, ÒHey, youÓve

just missed a week, youÓve been back a day, and youÓre having

this blow - up with a manager on the floor.Ó Like, ÒWhatÓs going

on?ÓÑ

33. Mr. Kronenberger te stified that neither he nor

Mr. Thomas went into this meeting with any intention of

terminating Petitione rÓs employment. However, two minutes into

the conversation, Petitioner was on his feet, pointing fingers,

and shouting that he knew what they were trying to do and he was

not going to let them do it. He was quitting.

34. Petitioner walked out of the o ffice. Mr. Thomas asked

Mr. Kronenberger to walk Petitioner out of the store so that

there would be no incidents on the floor with the other

employees. Mr. Kronenberger accompanied Petitioner to the

fragrance area, where Petitioner retrieved some persona l items,

then walked him to the door. They shook hands and Petitioner

left the store.

35. Mr. Kronenberger was firm in his testimony that no

security personnel were involved in removing Petitioner from the

store. Petitioner was not accused of stealing. His parting

with Mr. Kronenberger was as cordial as it could have been under

the circumstances. 6/

36. After Petitioner left his office, Mr. Thomas prepared

a ÐSeparation Data FormÑ confirming PetitionerÓs dismissal for

Ðviolation of company work rules.Ñ The specific ground stated

for PetitionerÓs dismissal was violation of the Associate Work

Rule forbidding insubordination. Mr. Kronenberger testified

that in his mind the ÐinsubordinationÑ included not just the

scene with Ms. Yao , but the explosion Petit ioner had in the

meeting with Mr. Thomas.

37. At the time of PetitionerÓs dismissal,

Mr. Kronenberger was unaware o f PetitionerÓs HIV status.

Mr. Kronenberger credibly testified that PetitionerÓs HIV status

had nothing to do with his dismissal from emplo yment at

DillardÓs.

38. Mr. Gustason, who apparently was aware of PetitionerÓs

HIV status, was not at work on November 28, 2015, and was not

involved in the events leading to PetitionerÓs dismissal.

Mr. Thomas, the assistant store manager, made the decis ion to

treat PetitionerÓs situation as a dismissal for cause. 7/

39. Mr. KronenbergerÓs testimony is credited regarding the

circumstances of PetitionerÓs dismissal and as to the general

tenor of PetitionerÓs employment at DillardÓs. Petitioner was

constan tly in the middle of conflicts, but never alleged until

after his termination that these conflicts were due to his

national origin or disability.

40. PetitionerÓs demeanor at the hearing was extremely

emotional. He cried frequently and seemed ba ffled t hat

Mr. Kronenberger was disputing his testimony. The undersigned

finds that PetitionerÓs version of events was genuine in the

sense that it conveyed PetitionerÓs subjective experience of his

employment as he recollected it. However, the undersigned must

also find that PetitionerÓs subjective experience did not

conform to objective reality. However , Petitioner internalized

the experiences, it is not plausible that DillardÓs employees

were yelling at Petitioner without provocation, hitting him,

throwing s hoes at him , and calling him a Ðdamn MexicanÑ in front

of customers. It is not plausible that PetitionerÓs superiors

would ignore such flagrant discriminatory behavior when it was

brought to their attention. PetitionerÓs feelings about the

motives of his co - workers and superiors cannot substitute for

tangible evidence of unlawful discrimination.

41. Petitioner offered the testimony of two DillardÓs

customers, neither of whom saw behavior from PetitionerÓs co -

workers that could be attributed to anything beyond personal

dislike or sales poaching. Santiago Garcia testified that he

noted other DillardÓs employees rolling their eyes at

Petitioner, but he thought the reason might be that Petitioner

talked too loud. Mr. Garcia also saw Ðbad looksÑ from other

employees and believed that the atmosphere among DillardÓs

employees was Ðtense,Ñ but did not offer a reason for the

tension.

42. Claudia Pimentel testified, through a Spanish language

interpreter, that she always went directly to Petitioner because

she speaks only Spanish and Petitioner was able to help her.

Ms. Pimentel noted that a female DillardÓs employee got mad at

Petitioner because he sold Ms. Pimentel a cream from her

counter.

43. During the years 2015 and 2016, the DillardÓs store in

Governor Ós Square Mall terminated two other sales associates for

insubordination. Neither of these sales associates was Mexican.

One was a black female and the other was a black male. Neither

of these sales associates had a known disability at the time of

termi nation.

44. Petitioner offered no credible evidence disputing the

legitimate, non - discriminatory reason given by DillardÓs for his

termination.

45. Petitioner offered no credible evidence that DillardÓs

stated reason for his termination was a pretext for

discrimination based on PetitionerÓs national origin or

disability.

46. Petitioner offered no credible evidence that DillardÓs

discriminated against him because of his national origin or his

disability in violation of section 760.10.

CONCLUSIONS OF L AW

47 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

48. The Florida Civil Rights Act of 1992 (the "Florida

Civil Rights Act" or the "Act"), cha pter 760, Florida Statutes,

prohibits discrimination in the workplace.

49. Section 760.10 states the following, in relevant part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to 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,

national origin, age, handicap, or marital

status.

50. DillardÓ s is an "employer" as defined in section

760.02(7) , which provides the following:

(7) "Employer" means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

a gent of such a person.

51. Florida courts have determined that federal case law

applies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnel l Douglas

Corp oration v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d

668 (1973), applies to claims arising under section 760.10,

absent direct evidence of discrimination. 8/ See Harper v.

Blockbuster EntmÓt Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998) ;

Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d 1353, 1361 (S.D.

Fla. 2002); Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1

(Fla. 1st DCA 1996); Fla. DepÓt of Cm ty . Aff. v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

52. Under the McDonnell analys is, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

discrimination. If the prima facie case is established, the

burden shifts to the employer to rebut this prelimi nary showing

by producing evidence that the adverse action was taken for some

legitimate, non - discriminatory reason. If the employer rebuts

the prima facie case, the burden shifts back to Petitioner to

show by a preponderance of evidence that the employer 's offered

reasons for its adverse employment decision were pretextual.

See Texas DepÓt of Cm ty . Aff. v. Burdine , 450 U.S. 248, 101 S.

Ct. 1089, 67 L. Ed. 2d 207 (1981).

53. In order to prove a prima facie case of unlawful

employment discrimination under chapter 760, Petitioner must

establish that: (1) he is a member of the protected group;

(2) he was subject to adverse employment action; (3) DillardÓs

treated similarly situated employees outside of his protected

classifications more favorably; and (4) P etitioner was qualified

to do the job and/or was performing his job at a level that met

the employerÓs legitimate expectations. See, e.g. , Jiles v.

United Parcel Serv., Inc. , 360 Fed. Appx. 61, 64 (11th Cir.

2010); Burke - Fowler v. Orange Cnty . , 447 F.3d 1 319, 1323 (11th

Cir. 2006); Knight v. Baptist Hosp. of Miami, Inc. , 330 F.3d

1313, 1316 (11th Cir. 2003); Williams v. Vitro Serv. Corp. , 144

F.3d 1438, 1441 (11th Cir. 1998); McKenzie v. EAP Mgmt. Corp. ,

40 F. Supp. 2d 1369, 1374 - 75 (S.D. Fla. 1999).

54. Petitioner has failed to prove a prima facie case of

unlawful employment discrimination.

55. Petitioner established that he is a member of a

protected group, in that he is a Mexican male and has the

acknowledged handicap of HIV. 9/ Petitioner established that he

was subject to an adverse employment action, in that he was

dismissed from his position as a fragrance specialist after

holding the job for approximately 18 months.

56 . However, no evidence supports an inference that

Petitioner was discriminated against based upon his national

origin or handicap. Petitioner offered no evidence to establish

that any similarly situated employee was treated differently by

DillardÓs. 10/ While Petitioner was qualified to do the job of

fragrance specialist, and perfo rmed adequately , if sporadically,

he was ultimately fired for failing to follow the express

2 1

Associate Work Rules and General Policies that he acknowledged

and accepted at the time he began his employment with DillardÓs.

57 . DillardÓs presented ample evid ence of legitimate, non -

discriminatory reasons for Petitioner's termination.

PetitionerÓs on - the - job dramatics were tolerated by his

immediate superior, Mark Kronenberger, throughout his time at

DillardÓs. Store M anager Alan Gustason could have terminate d

PetitionerÓs employment for abandonment after Petitioner missed

six days without excuse in the month of November 2015. Instead,

Mr. Gustason and Mr. Kronenberger cajoled and persuaded

Petitioner to return to work on November 25, only to have

Petitioner engage in yet another confrontation with a fellow

employee, this time a supervisor who was attempting to instruct

Petitioner on the storeÓs gift with purchase policy.

Mr. Kronenberger and Mr. Thomas brought Petitioner in for what

was intended to be a coun seling session. Petitioner stormed out

of the meeting and announced that he was quitting. Only then

did Mr. Thomas commence the paperwork to terminate PetitionerÓs

employment. Far from discriminating, DillardÓs showed great

forbearance with Petitioner, terminating his employment only

after his repeated angry outbursts and confrontational behavior

escalated into outright in subordination.

58 . PetitionerÓs complaint not only addressed the

circumstances of his separation from DillardÓs but alleged

harassmen t during his employment. As noted in the above

Findings of Fact, there was no credible evidence that

PetitionerÓs various conflicts with fellow employees were due to

his national origin. PetitionerÓs dramatic personality and

aggressive sales behavior wer e more likely than not the chief

causes of the animosity expressed by his co - workers.

RECOMMENDATION

Based on the foregoing Findings of Fac t and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order findin g that Higbee Company , d/b/a

DillardÓs , did not commit any unlawful employment practices , and

dismissing the Petition for Relief filed in this case.

DONE AND ENTERED this 24th day of October , 2017 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 Cl erk of the

Division of Administrative Hearings

this 24th day of October 2017 .

ENDNOTE S

1/ The style of the case has been amended to reflect

RespondentÓs full name.

2 / Citations shall be to Florida Statutes (2016) unless

otherwise specified. Section 7 60.10 has been unchanged since

1992, save for a 2015 amendment adding pregnancy to the list of

classifications protected from discriminatory employment

practices. Ch. 2015 - 68, § 6, Laws of Fla.

3 / The original determination is not part of the record.

4 / Petitioner did not present a coherent chronology of events.

It was unclear whether ther e was a single meeting with

Mr. Gustason a day or two after the altercation with Ms. Autrey,

or whether Petitioner met with Mr. Gustason immediately after

the alterc ation and then again a day or two later.

5 / These hearsay statements are recounted not for their truth as

to the altercation between Petitioner and Ms. Yao , but to

establish Mr. KronenbergerÓs reason for calling Petitioner into

the office on November 28, 2015.

6 / At the hearing, Peti tioner spoke very highly of

Mr. Kronenberger and completely exempted him from any of his

allegations.

7 / DillardÓs made no claim as to Mr. ThomasÓ s motive. However,

the undersigned is cognizant of the fact that by termina ting

PetitionerÓs employment rather than accepting the angrily

tendered resignation, Mr. Thomas ensured PetitionerÓs

eligibility for unemployment benefits. Petitioner testified

that he did in fact receive such benefits.

8 / Ð Direct evidence is Òevidence, which if believed, proves

existence of fact in issue without inference or presumption.Ó"

Rollins v. TechSouth, Inc. , 833 F.2d 1525, 1528 n.6 (11th Cir.

1987) ( quoting BlackÓs Law Dictionary 413 (5th ed. 1979)). In

Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir. 1989), the

court stated:

This Court has held that not every comment

concerning a person's age presents direct

evidence of discrimination. [ Young v. Gen.

Foods Corp. , 840 F.2d 825, 829 (11th Cir.

Young Court made clear that

r emarks merely referring to characteristics

associated with increasing age, or facially

neutral comments from which a plaintiff has

inferred discriminatory intent, are not

directly probative of discrimination. Id .

Rather, courts have found only the most

b latant remarks, whose intent could be

nothing other than to discriminate on the

basis of age, to constitute direct evidence

of discrimination.

Petitioner offered no evidence that would satisfy the

stringent standard of direct evidence of discrimination.

9 / In Daniels v. Kiser and Soltesz , Case No. 10 - 10425 ( Fla. DOAH

April 13, 2011), FCHR Order No. 11 - 052 (Final Order, June 28,

2011), the FCHR concluded as follows:

The Administrative Law Judge concluded that

Petitioner failed to establish a prima facie

case of handicap/disability discrimination,

in part, because "Petitioner did not

establish that, as a matter of law, being

HIV positive constitutes a 'handicap' as

that term is used in the law. Petitioner

did not establish that his condition

substantially limits one or more major life

activities." Recommended Order, ¶ 27.

We note that one of the "Miscellaneous

Provisions" of the Civil Rights chapter of

the Florida Statutes, entitled

"Discrimination on the basis of AIDS, AIDS -

related complex and HIV prohib ited," states

as follows: "Any person with or perceived

as having acquired immune deficiency

syndrome, acquired immune deficiency

syndrome related complex, or human

immunodeficiency virus shall have every

protection made available to handicapped

persons." Section 760.50(2), Florida

Statutes (2010).

Based on this pronouncement, we conclude

that an individual who is HIV positive is

entitled to the protections "made available

to handicapped persons" under the Fair

Housing Act, and is a "handicapped" person

within the meaning of the Fair Housing Act.

Accord , generally, Balkan v. Block Drug

Company, Inc. , 16 F.A.L.R. 4154 (FCHR 1994),

in which a Commission Panel deciding a case

interpreting the Human Rights Act of 1977

adopted the following conclusions of law set

out in the Recommended Order for the case:

"Section 760.50(2), Florida Statutes,

provides in pertinent part that '[a]ny

person with . . . human immunodeficiency

virus [HIV] shall have every protection made

available to handicapped persons.'

According ly, inasmuch as handicapped persons

are protected against employment

discrimination by the Act, persons with HIV,

by operation of Section 760.50(2), Florida

Statutes, enjoy the same protection

thereunder. It is therefore an unlawful

employment practice in violation of Section

760.10(1)(a), Florida Statutes, for an

employer to refuse to hire a person because

that person is HIV - positive."

In modifying this conclusion of law of the

Administrative Law Judge, we conclude:

(1) that the conclusion of law being

modified is a conclusion of law over which

the Commission has substantive jurisdiction,

namely a conclusion of law interpreting the

definition of "handicap" under the Fair

Housing Act; (2) that the reason the

modification is being made by the Commission

is that the conclusion of law as stated

appears to run contrary to the

interrelationship of the Fair Housing Act

and Section 760.50(2) Florida Statutes; and

(3) that in making this modification the

conclusion of law being substituted is as or

more reasonable than the conclusion of law

which has been rejected. See , Section

120.57(1)(1),Florida Statutes (2010).

10 / As to the question of disparate treatment, the applicable

standard was set forth in Maniccia v. Brown , 171 F.3d 1364,

1368 - 1369 (11th Cir. 1999):

"In determining whether employees are

similarly situated for purposes of

establishing a prima facie case, it is

necessary to consider whether the employees

are involved in or accused of the same

or similar conduct and are disciplined in

different ways." Jones v. Bessemer Carraway

Med. Ctr. , 137 F.3d 1306, 1311 (11th

Cir.), opinion modified by 151 F.3d 1321

(1998) ( quoting Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir. 1997)). "The most

important factors in the disciplinary

context are the nature of t he offenses

committed and the nature of the punishments

imposed." Id . (internal quotations and

citations omitted). We require that the

quantity and quality of the comparator's

misconduct be nearly identical to prevent

courts from second - guessing employer s'

reasonable decisions and confusing apples

with oranges. See Dartmouth Review

v. Dartmouth College , 889 F.2d 13, 19 (1st

Cir. 1989) ("Exact correlation is neither

likely nor necessary, but the cases must be

fair congeners. In other words, apples

should be compared to apples."). (Emphasis

added).

The Eleventh Circuit has questioned the "nearly identical"

standard enunciated in Maniccia , but has in recent years

reaffirmed its adherence to it. See , e.g. , Brown v. Jacobs

EngÓg, Inc. , 572 Fed. Appx. 750, 751 (11th Cir. 2014); Escarra

v. Regions Bank , 353 Fed. Appx. 401, 404 (11th Cir. 2009);

Burke - Fowler , 447 F.3d at 1323 n.2.

In any event, Petitioner in the instant case failed to

provide any persuasive evidence to establish disparate

treatment.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Christopher W. Deering, Esquire

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Suite 1900

420 North 20th Street

Birmingham, Alabama 35203

(eServed)

Adrian G. Rico

Building 25, Apartment 277

4000 Gulf Terrace Drive

Destin, Florida 32541

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.