17-005510 Javier F. Rivadeneira vs. Walmart Status: Closed Recommended Order on Tuesday, July 10, 2018.

Summary: Petitioner failed to prove, based on the facts in the record, that Respondent's store was a "place of public accommodation" as defined by section 760.02(11); even if it were, Petitioner failed to prove discrimination based on his race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAVIER F. RIVADENEIRA,

Petitioner,

vs. Case No. 17 - 5510

WALMART,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted be fore

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), 1/ on March 9, 2018, by video

teleconference at sites in Tallahassee and Tampa, Florida.

APPE ARANCES

For Petitioner: Javier Fernando Rivadeneira , pro se

43 South Adams Street

Beverly Hills, Florida 34465

For Respondent: Alva Crawford, Esquire

Littler Mendelson

Suite 800

2301 McGee Street

Kansas City, Missouri 64108

STATEMENT OF THE ISSUE S

The issue s in this matter are whether Respondent, Walmart,

violated section 760.08, Florida Statutes, by discriminating

against Petitioner based on his race ; and, if so, the relief to

which Petitioner is entitled.

PRELIMINARY STATEMENT

On March 23, 2017, Petitioner, Javier F. Rivadeneira

( Ð Petitioner Ñ ), filed a Complaint of Discrimination with the

Florida Commission on Human Relations (the Ð Commission Ñ ) alleg ing

that Respondent, Walmart, violated the Florida Civil Rights Act

( Ð FCRA Ñ ) by discriminating against him in a place of public

accommodation based on his race . 2/

On September 15, 2017, the Commission notified Petitioner

that it determined that no reasona ble cause exists to believe

that Walmart committed an unlawful public accommodation practice.

Thereafter, on October 3, 2017, Petitioner filed a Petition

for Relief with the Commission alleging a discriminatory public

accommodation practice. The Commiss ion transmitted the Petition

to the Division of Administrative Hearings ( Ð DOAH Ñ ) to conduct a

chapter 120 evidentiary hearing.

The final hearing was held on March 9, 201 8 . At the final

hearing, Petitioner testified on his own behalf. Petitioner did

not o ffer any exhibits. Walmart presented th e testimony of Elsie

Rodriguez, Dipti Vora, and Sara Revelia. Walmart Ó s Exhibits 1

and 2 were admitted into evidence.

The Transcript of the final hearing was filed with DOAH on

April 2, 2018. At the close of the he aring, the parties were

advised of a ten - day timeframe following receipt of the hearing

transcript at DOAH to file post - hearing submittals. At the final

hearing, Walmart requested a ten - day extension of the filing

deadline, which was granted. 3/ Both part ies timely filed post -

hearing submittals , which were duly considered in preparing this

Recommended Order.

FINDING S OF FACT

1. On March 6, 2017, Petitioner, who is Hispanic, visited

the Walmart in his neighborhood in Tampa (store #5255) to make

several pur chases. Petitioner is a frequent customer of the

store, shopping there every two to three days.

2. After selecting several items and placing them in a

cart, Petitioner proceeded to the self - checkout area. When he

arrived at the self - checkout section, Petitioner found all the

registers in use by other customers. So, he waited for an

opening.

3. As he stood with his cart, Petitioner observed a Walmart

employee, Dipti Vora, stationed in the self - checkout area.

Ms. Vora was working as the self - checko ut Ð hostess Ñ to assist and

monitor the customers using the self - checkout registers.

Petitioner was familiar with Ms. Vora who he had seen on previous

visits. Petitioner recalled that they exchanged pleasantries

while he waited for a free register.

4. W hile he waited, Petitioner noticed another Walmart

employee, who he later learned was Sara Revelia, walk up to

Ms. Vora. As Ms. Revelia approached Ms. Vora, Petitioner saw her

raise a finger to her eye, and then point her finger at him.

Petitioner also observed Ms. Revelia give him a nasty look.

Petitioner interpreted Ms. Revelia Ó s actions as instructing

Ms. Vora to Ð keep an eye on him Ñ because she suspected that he

might steal something.

5. Petitioner believed that Ms. Revelia, who appeared to be

w hite, pointed at him solely because he is Hispanic. Petitioner

expressed that he did not see Ms. Revelia point at any other

customers. Petitioner particularly noted that Ms. Revelia did

not point to any other white customers who were waiting in the

self - checkout area.

6. Petitioner was so upset by Ms. Revelia Ó s presumptuous

gesture that he abandoned his cart in the self - checkout area and

left the store without purchasing his items. Petitioner declared

that he has never returned to that Walmart store a nd has no plans

to ever shop there again.

7. Petitioner was very embarrassed and disturbed by

Ms. Revelia Ó s action singling him out to be watched. Petitioner

is convinced that Ms. Revelia racially profiled him because he is

Hispanic. Based on her demea nor, Petitioner declared that

Ms. Revelia acted in a very arrogant and authoritative manner and

prejudged his character.

8. When questioned by Walmart at the final hearing ,

Petitioner conceded that he did not hear any words pass between

Ms. Vora and Ms. Revelia. Nor did any Walmart employee

(including Ms. Revelia) accuse him of stealing or instruct him to

leave Walmart. However, Petitioner firmly believes that

Ms. Revelia perceived him as a thief or a bad person who might

not pay for the items he was c arrying. Petitioner asserts that

Ms. Revelia Ó s action was an Ð injustice, Ñ and Walmart must take

responsibility for its employee Ó s actions.

9. Walmart denied that it failed to allow Petitioner access

to its facility or services or took any actions based on his

race. Walmart further asserts that at no time did it ask

Petitioner to leave or refuse to sell him the items he wished to

purchase. Walmart specifically refuted Petitioner Ó s allegation

that an employee suspected that he was going to steal from th e

store or singled him out as a thief.

10. Walmart presented the testimony of Ms. Vora, the

employee who was assigned as the Ð hostess Ñ in the self - checkout

area at the time of Petitioner Ó s visit. Ms. Vora had worked in

store #5255 for approximately 12 y ears. She was familiar with

Petitioner and had regularly seen him shopping at that Tampa

Walmart.

11. Ms. Vora recalled the incident involving Petitioner.

Ms. Vora also remembered the encounter with Ms. Revelia, the

employee who allegedly pointed at Pet itioner.

12. Ms. Vora testified that while Petitioner was standing

in the self - checkout area, another customer with a baby stroller

was also waiting to use a register. Just at that moment,

Ms. Revelia walked up to her and alerted her to watch the woma n

with the stroller. Ms. Vora explained that the woman had placed

several items in the open compartment below the stroller seat.

Ms. Revelia was cautioning her to ensure that the woman did not

neglect to scan all the items she brought to the register,

sp ecifically including the items in the lower section of the

stroller.

13. Ms. Vora stated that Ms. Revelia was not pointing at

Petitioner. Instead, she was signaling Ms. Vora to monitor the

woman pushing the stroller, who was standing just ahead of

Peti tioner.

14. Ms. Vora also recalled that, after Ms. Revelia walked

away, Petitioner approached her and asked who was the employee

who had just talked to her. At that time, Ms. Vora did not know

Ms. Revelia Ó s name because she was visiting from another st ore.

15. Ms. Revelia testified at the final hearing.

Ms. Revelia is an Asset Protection Manager for Walmart. She

principally works in a Walmart store in Largo, Florida. However,

she does visit the Tampa store regularly as part of her area of

assignm ent.

16. Ms. Revelia explained that her job duties include

overseeing inventory preparation and compliance at Walmart

facilities, as well as assisting with the detection and

apprehension of shoplifters. She was specifically trained on how

to Ð shrink Ñ f inancial losses at Walmart facilities due to theft.

Ms. Revelia relayed that she was instructed to constantly watch

for any suspicious behavior from Walmart customers.

17. Ms. Revelia recalled working at the Walmart Petitioner

visited on March 6, 2017. However, she did not remember talking

to Ms. Vora, pointing at a customer, or seeing Petitioner while

he waited in the self - checkout area. Instead, Ms. Revelia

conveyed that she was primarily focused on helping store #5255

prepare for its annual invento ry.

18. Although she did not recall specifically pointing out a

customer to Ms. Vora, Ms. Revelia described suspicious situations

she frequently sees that cause her alarm. Such activity includes

customers who wear heavy jackets in summer or carry ope n

backpacks. In addition (and particularly relevant to this

matter), Ms. Revelia is also cognizant of customers who bring in

strollers that are equipped with a compartment or shelf under the

baby seat. Ms. Revelia exp ound ed that, in her experience as an

asset manager, she has personally witnessed customers place goods

and items in a stroller Ó s Ð undercart Ñ and forget (either

intentionally or unintentionally) to scan them at the self -

checkout register.

19. Despite not remembering the incident involving

Pe titioner, Ms. Revelia offered that, if she did walk by the

self - checkout area and saw a stroller with items stored under the

seat, she very well may have instructed the hostess to Ð keep an

eye on Ñ that customer. Conversely, Ms. Revelia denied that she

wou ld point at any Walmart customer simply because he or she was

Hispanic. Neither would she automatically suspect that a

customer would steal from Walmart because of their race.

Ms. Revelia adamantly denied that she took any discriminatory

action against Petitioner.

20. As additional evidence that Walmart did not

discriminate against Petitioner, Elsie Rodriguez, the store

manager for store #5255, testified that approximately 70 percent

of the customers who shop at her store are Hispanic.

Furthermore, i n light of the populace it serves, store #5255

specifically offers Spanish based foods and other products

catering to the Latino community. Consequently, Ms. Rodriguez

asserted that it would not make sense for Walmart, or any of its

employees, to discrimi nate against its Hispanic customers.

21. Walmart also maintains a Statement of Ethics and

Discrimination, as well as a Harassment Prevention Policy , which

prohibit discrimination by its employees based on race and

national origin.

22. Ms. Rodriguez also testified that store #5255 does not

hold itself out as, nor does it include, a cafeteria, dining

facility, or restaurant. Ms. Rodriguez explained that store

#5255 is a Ð Neighborhood Market. Ñ The store does not offer food

princip ally for consumption on its premises. Neither does it

contain an area where customers can sit and dine. Instead, all

the facility sells is groceries.

23. In response to the testimony from the Walmart

witnesses, Petitioner insisted that the Walmart employees were

not telli ng the truth. Petitioner vigorously maintained that

Ms. Revelia was pointing at him and not another customer with a

baby stroller.

24. Based on the competent substantial evidence in the

record, the preponderance of the evidence does not establish that

Walmart discriminated against Petitioner based on his race.

Accordingly, Petitioner failed to meet his burden of proving that

he was denied full and equal enjoyment of goods or services in a

place of public accommodation in violation of the FCRA.

CONCLUS IONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

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

760.11(7), Florida Statutes (2017) . See also Fla. Admin. Code R.

60Y - 4.016(1).

26 . Petitioner claims that Walmart discriminated against

him in violation of the FCRA. Petitioner specifically alleges

public accommodation discrimination, based on his race, in

violation of section 760.08.

27. Section 760.08, entitled Ð Discrimination in places of

public accommodation, Ñ states:

All persons are entitled to the full and

equal enjoyment of the goods, services,

facilities, privileges, advantages, and

accommodations of any place of public

accommodation without discrimination or

segregation on t he ground of race, color,

national origin, sex, pregnancy, handicap,

familial status, or religion.

28. Section 760.02(11) states, in pertinent part:

Ð Public accommodations Ñ means places of

public accommodation, lodgings, facilities

principally engaged in selling food for

consumption on the premises, gasoline

stations, places of exhibition or

entertainment, and other covered

establishments. Each of the following

establishments which serves the public is a

place of public accommodation within the

meaning o f this section:

* * *

(b) Any restaurant, cafeteria, lunchroom,

lunch counter, soda fountain, or other

facility principally engaged in selling food

for consumption on the premises, including,

but not limited to, any such facility located

on the premises of any retail establishment,

or any gasoline station.

29. The FCRA is pa tterned after Title VII of the F ederal

Civil Rights Act of 1964, as amended. As such, Florida c ourts

have held that federal decisions construing Title VII are

applicable whe n considering claims under the FCRA. Harper v.

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

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d

DCA 2009); and Fla. State Univ. v. Sondel , 685 So. 2d 923, 925

n.1 (Fla. 1st DC A 1996).

30. Specifically regarding discrimination in places of

public accommodation, Title II of the F ederal Civil Rights Act

prohibits discrimination in language similar to that found in

section 760.08. See 42 U.S.C. § 2000a. Both Title II and

section 760.08 prohibit discrimination on the grounds of race. 4/

31. The burden of proof in an administrative proceeding,

absent a statutory directive to the contrary, is on the party

asserting the affirmative of the issue. Dep Ó t of Transp. v.

J.W.C. Co. , 396 S o. 2d 778 (Fla. 1st DCA 1981); see also Dep Ó t of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fla. 1996)( Ð The general rule is that a

party asserting the affirmative of an issue has the burden of

presenting evid ence as to that issue. Ñ ). Therefore, Petitioner

carries the burden of proving that Walmart, as a Ð place of public

accommodation, Ñ discriminated against him. The preponderance of

the evidence standard is applicable to this matter. See

§ 120.57(1)(j), Fl a. Stat.

32. The first issue to determine in this matter is whether

Walmart constitutes a Ð place of public accommodation Ñ as defined

by the FCRA. See § 760.02(11), Fla. Stat.

33. Governing case law establishes that not all businesses

that make food pr oducts available to the public are included in

the FCRA Ó s definition of Ð public accommodation. Ñ See Pena v.

Fred Ó s Stores of Tenn., Inc. , 2009 U.S. Dist. LEXIS 121360,

at *6 (N.D. Fla. Dec. 31, 2009)(A retail store chain that sold

pre - packaged food and b everage items that were not specifically

sold for consumption on the premises (as there was no eating

area) was not a Ð public accommodation Ñ under the FCRA.); Amiri v.

Safeway, Inc. , 1999 U.S. Dist. LEXIS 933, *2 - 3 (D.D.C. Jan. 26,

1999)( Ð A grocery store . . . does not fall within the definition

of public accommodation. Ñ ); Jones v. Wal - Mart , 2010 U.S. Dist.

LEXIS 9801, at *5 (W.D. La. Jan. 14, 2010)(Retail stores, food

markets and the like are not within the ambit of 42 U.S.C.

§ 2000a.); Gigliotti v. Wawa, Inc . , 2000 U.S. Dist. LEXIS 1021,

2000 WL 133755, at *1 (E.D. Pa. Feb. 2, 2000)(A retail store Ð was

not principally engaged in selling food for consumption on

premises where store sold food which was ready to eat but had no

facilities for consumption of f ood on premises. Ñ ); Moralez v.

Whole Foods Mkt. Cal., Inc. , 2015 U.S. Dist. LEXIS 165174, at *9

(N.D. Cal. Dec. 9, 2015)(The ability to purchase food ready - to -

eat at a grocery store and to eat it on or near the property does

not convert the location into a restaurant or other public

accommodation within the meaning of 42 U.S.C. § 2000a.); cf.

Thomas v. Tops Friendly Mkts. , 1997 U.S. Dis t. LEXIS 15887 (N.D.

N.Y. 1997) (The presence of an Ð eating area Ñ inside or outside of

a grocery store was deemed sufficient to establish that the store

was a Ð public accommodation . Ñ ).

34. DOAH has also consistently held the same. In Darrell

Alford v. Publix Super Markets, Inc. , Case No. 15 - 3620 (Fla. DOAH

Feb. 2, 2016), the Administrative Law Judge ( Ð ALJ Ñ ) concluded

that a g rocery store was not a Ð public accommodation Ñ without

some evidence of an Ð eating area Ñ on the premises. In Morales v.

Winn - Dixie Stores, Inc. , Case No. 08 - 5166 (Fla. DOAH Dec. 24,

2008; FCHR Mar. 16, 2009), the Commission adopted the ALJ Ó s

conclusion tha t the Winn - Dixie grocery store at issue was not a

place of public accommodation under the facts presented.

(Although, the Commission did not exclude the possibility that a

grocery store could be a Ò public accommodation Ó under a different

set of facts . ) I n Baker v. Maycom Commc Ó n/Sprint - Nextel , Case

No. 08 - 5809 (Fla. DOAH Dec. 22, 2008; Fla. FCHR Mar. 16, 2009),

the ALJ observed that the FCRA Ð only prohibits discrimination by

statutorily - defined Ð public accommodations; it does not prohibit

discrimination i n all business contexts. Ñ See also Robert

Mannarino v. Cut The Cake Bakery , Case No. 16 - 3465 (Fla. DOAH

Feb. 9, 2017). Accordingly, the undersigned concludes that the

omission of Ð grocery stores Ñ from the list of places of public

accommodation specifical ly identified in section 760.02(11)

reflects a legislative intent that the statute does not encompass

such establishments.

35. At the final hearing, Walmart credibly and persuasively

testified that the Walmart store Petitioner visited on March 6,

2017 , di d not meet the definition of Ð public accommodation Ñ for

purposes of the FCRA. The Neighborhood Market does not contain a

Ð restaurant, cafeteria, lunchroom, lunch counter, [or] soda

fountain. Ñ Neither is it Ð principally engaged in selling food

for consump tion on the premises. Ñ Further, the Neighborhood

Market does not hold itself out as serving food to patrons at its

location; does not maintain a designated on - site eating area for

its customers; and does not sell groceries intended for o n - site

consumption .

36. Based on the statute Ó s plain and unambiguous language,

regarding public accommodation discrimination, FCRA protections

only apply to businesses that are Ð principally engaged in selling

food for consumption on the premises. Ñ The FCRA clearly

envisio ns an establishment whose principal purpose is to provide

an area at which its customers may consume food or drink.

Because the evidence in the record establishes that the Walmart

facility does not engage in this principal purpose, the

undersigned conclud es that the Neighborhood Market is not a

Ð place of public accommodation. Ñ Accordingly, Walmart is not

subject to the public accommodation provisions of the FCRA as

they pertain to Petitioner Ó s complaint.

37. Notwithstanding the above, assuming arguendo t hat

Walmart is a Ð place of public accommodation Ñ under the FCRA,

Petitioner failed to establish a claim of unlawful discrimination

based on his race.

38. Discrimination may be proven by direct, statistical, or

circumstantial evidence. Valenzuela , 18 So. 3d at 22. Direct

evidence is evidence that, if believed, would prove the existence

of discriminatory intent behind the employment decision without

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

1172, 1182 (11th Cir. 2001); see also Holi field v. Reno , 115 F.3d

1555, 1561 (11th Cir. 1997). Courts have held that ÐÒ only the

most blatant remarks, whose intent could be nothing other than to

discriminate . . . Ó will constitute direct evidence of

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

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

39. Petitioner did not present direct or statistical

evidence of race discrimination on the part of Walmart.

Petitioner did not introduce evidence or elicit testimony that

Walmart refused to offer him its goods or services simply because

he is Hispanic.

40. In the absence of direct or statistical evidence of

discriminatory intent, Petitioner must rely on circumstantial

evidence of discrimination to prove his case. For discriminat ion

claims involving circumstantial evidence, Florida courts follow

the three - part, burden - shifting framework set forth in McDonnell

Douglas Corp. v. Green , 411 U.S. 792 (1973), and its progeny.

Valenzuela , 18 So. 3d at 21 - 22; see also St. Louis v. Fla. I nt Ó l

Univ. , 60 So. 3d 455, 458 (Fla. 3d DCA 2011).

41. Due to the relative scarcity of case law under Title II

discrimination cases, federal courts find guidance in federal

court decisions applying Title VII, including the law of the

shifting burdens of p roduction of evidence expressed in

McDonnell . See Fahim v. Marriott Hotel Serv. , 551 F.3d 344, 349

(5th Cir. 2008); and Bivins v. Wrap It Up, Inc. , No. 07 - 80159 -

CIV, 2007 U.S. Dist. LEXIS 77670, at *13 (S.D. Fla. Oct. 18,

2007). Accordingly, in order to prove a prima facie case of

unlawful public accommodation discrimination under section

760.08, Petitioner must establish that: (1) he is a member of a

protected class (race); (2) he attempted to contract for goods

and services from a place of public accom modation; (3) he was

denied the right to contract for those goods and services; and

(4) the goods and services were made available to similarly -

situated persons outside his protected class. 5/ Fahim , 551 F.3d

at 350.

42. If Petitioner proves a prima facie case, he creates a

presumption of public accommodation discrimination. At that

point, the burden shifts to Walmart to articulate a legitimate,

nondiscriminatory reason for denying its goods and services to

Petitioner. See Texas Dept. of Cmty. Aff. v. Bu rdine , 450 U.S.

248, 101 S. Ct. 1089 (1981); Valenzuela , 18 So. 2d at 22. The

reason for Walmart Ó s decision should be clear, reasonably

specific, and worthy of credence. See Dep Ó t of Corr. v.

Chandler , 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991). Walmart has

the burden of production, not the burden of persuasion, to

demonstrate to the finder of fact that the decision was

nondiscriminatory. See Wilson v. B/E Aerospace, Inc. , 376 F.3d

1079, 1087 (11th Cir. 2004). This burden of production is

Ð exceedingly l ight. Ñ Holifield , 115 F.3d at 1564. Meeting the

burden involves no credibility assessment. Walmart needs only to

produce evidence of a reason for its decision. It is not

required to persuade the trier of fact that its decision was

actually motivated by the reason given. See St. Mary Ó s Honor

Ctr. v. Hicks , 509 U.S. 502, 509.

43. If Walmart meets its burden, the presumption of

discrimination disappears. The burden then shifts back to

Petitioner to prove that Walmart Ó s proffered reason was not its

true reason but merely a Ð pretext Ñ for discrimination. See Combs

v. Plantation Patterns , 106 F.3d 1519, 1538 (11th Cir. 1997);

Valenzuela , 18 So. 3d at 25. Evidence of pretext reveals Ð such

weaknesses, implausibilities, inconsistencies, incoherencies or

contr adictions in the employer Ó s proffered legitimate reasons for

its actions that a reasonable factfinder could find them unworthy

of credence. Ñ Vessels v. Atlanta Indep. Sch. Sys. , 408 F.3d 763,

771 (11th Cir. 2005); Furcron v. Mail Ctrs. Plus, LLC , 843 F.3d

1295 (11th Cir. 2016).

44. In order to satisfy this final step of the process, the

petitioner must show Ð directly that a discriminatory reason more

likely than not motivated the decision, or indirectly by showing

that the proffered reason for the . . . d ecision is not worthy of

belief. Ñ Chandler , 582 So. 2d at 1186 (citing Burdine , 450 U.S.

at 252 - 256 (1981)). The proffered explanation is unworthy of

belief if the petitioner demonstrates Ð such weaknesses,

implausibilities, inconsistencies, incoherencies , or

contradictions in the employer Ó s proffered legitimate reasons for

its action that a reasonable factfinder could find them unworthy

of credence. Ñ Combs , 106 F.3d at 1538; see also Reeves v.

Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143 (2000). T he

petitioner must prove that the reasons articulated were false and

that the discrimination was the real reason for the action. City

of Miami v. Hervis , 65 So. 3d 1110, 1117 (Fla. 3d DCA

2011)(citing St. Mary Ó s Honor Ctr . , 509 U.S. at 515)( Ð [A] reason

ca nnot be proved to be Ò a pretext for discrimination Ó unless it

is shown both that the reason was false, and that discrimination

was the real reason. Ñ ).

45. Despite the shifting burdens of proof, Ð the ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the [petitioner]. Ñ Burdine , 450 U.S. at 253;

Valenzuela , 18 So. 3d at 22. The demonstration of pretext

Ð merges with the plaintiff Ó s ultimate burden of showing that the

defendant intentionally discriminated against the plaintiff. Ñ

Holifield , 115 F.3d at 1565.

46. Turning to the facts found in this matter, Petitioner

did not prove a prima facie case of unlawful discrimination based

on his race. Initially, Petitioner su fficiently demonstrated

that he belongs to a protected class (Hispanic), and that he

attempted to contract for goods from Walmart. Petitioner also

presented evidence (through his testimony) that Walmart treated

him differently from similarly - situated, whi te customers.

(Petitioner observed that Ms. Revelia did not point at or single

out white customers in the self - checkout area.)

47. However, Petitioner failed to establish the third prong

of a prima facie case by showing that Walmart denied him the

abilit y to buy the products he brought to the self - checkout area.

(Assuming that Petitioner Ó s allegations are true) while

Petitioner was quite upset by Ms. Revelia Ó s actions, no evidence

shows that she, or any other Walmart employee, actually prevented

Petition er from using the self - checkout register or completing

his purchase. Even if Ms. Revelia did alert the self - checkout

hostess to Ð keep her eyes on Ñ Petitioner, her gesture did not

interfere with his ability to pay for the items he selected.

48. Therefore, the competent substantial evidence in the

record does not support Petitioner Ó s allegation that Walmart

denied him the Ð full and equal enjoyment Ñ of its goods and

services. Accordingly, Petitioner failed to prove a prima facie

case of discrimination by ci rcumstantial evidence.

49. Going further, even assuming that Petitioner did

establish a prima facie case of public accommodation

discrimination, Walmart articulated a legitimate,

nondiscriminatory reason for the conduct about which Petitioner

complains. Walmart Ó s burden to refute Petitioner Ó s prima facie

case is light. Walmart met this burden by providing clear and

specific testimony that Ms. Revelia Ó s actions were legitimately

based on her job responsibilities to ensure Ð asset protection Ñ at

the Walmart store. Walmart Ó s witnesses believably testified that

the (nondiscriminatory) reason for Ms. Revelia Ó s gesture was to

ensure that any/all items stored in a baby stroller Ó s

undercarriage were paid for.

50. Completing the McDonnell Douglas burden - shift ing

analysis, Petitioner did not prove, by a preponderance of the

evidence, that Walmart Ó s stated reasons for (allegedly) singling

him out in the self - checkout area were not its true reasons, but

were merely a Ð pretext Ñ for discrimination. The record in t his

proceeding does not support a finding or conclusion that

Walmart Ó s explanation for Ms. Revelia Ó s gesture was false and

discrimination was her real motivation.

51. While Petitioner sincerely believes that Ms. Revelia

wanted to Ð keep an eye on Ñ him beca use he is Hispanic, the

evidence in the record does not establish that her actions were

based on, influenced by, or motivated by his race. 6/ On the

contrary, Walmart presented a credible and persuasive explanation

for Ms. Revelia Ó s gesture, and Petitioner did not show that this

explanation was a Ð pretext Ñ for race discrimination.

52. Petitioner essentially argues that Walmart (by

suspecting that he might not pay for his items) treated him in

such a poor and hostile manner, that the store effectively den ied

him the right to access a Ð place of public accommodation. Ñ

However, a Walmart employee Ó s efforts to watch for, and minimize,

incidents of shoplifting, even if that customer is a minority

(and even if the employee is mistaken as to the customer Ó s guilt

or innocence), is a legitimate, nondiscriminatory reason to Ð keep

an eye on Ñ a customer. Consequently, Petitioner failed to meet

his ultimate burden of proving that Walmart prevented his Ð full

and equal enjoyment Ñ of its goods and services based on racia l

animus.

53. For the reasons set forth herein, the evidence on

record does not support Petitioner Ó s claim that Walmart refused

to provide him its goods and services because of his race. The

more persuasive evidence establishes that Walmart did not co mmit

the action which Petitioner found offensive (pointing at him as

if he intended to steal from the store). Further, even if

Ms. Revelia did instruct Ms. Vora to Ð keep an eye on Ñ Petitioner

because she suspected that he might not pay for the goods he w as

carrying, such reason constitutes a legitimate, nondiscriminatory

reason for her conduct. Consequently, Petitioner failed to meet

his burden of proving that Walmart discriminated against him in

violation of the FCRA.

RECOMMENDATION

Based on the foregoi ng Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent, Walmart,

is not a Ð place of public accommodation Ñ under the facts of this

case; and, even if it were, that Respondent did not unlawfully

discriminate against Petitioner Ó s race. Petitioner Ó s Petition

for Relief should be dismissed.

DONE AND ENTERED this 10 th day of July , 2018 , in

Tallahassee, Leon County, Florida.

S

J. BR UCE CULPEPPER

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 Ad ministrative Hearings

this 10 th day of July , 2018.

ENDNOTE S

1/ Unless otherwise stated, all statutory references are to the

2016 codification of the Florida Statutes.

2 / In his Petition for Relief, Petitioner complained that Walmart

discriminated aga inst him based on his national origin, color,

and disability. At the final hearing, however, Petitioner Ó s

allegations essentially focused on discrimination against his

race (Hispanic). (In his Discrimination Statement in his

Petition for Relief, Petition er identified himself as a Ð disabled

Hispanic male Ñ and complained that a Walmart employee pointed at

him because he was Ð a Hispanic male. Ñ ) Accordingly, the

undersigned evaluated Petitioner Ó s claim as discrimination based

on his race. (Although, the und ersigned notes that the legal

analysis is the same for all alleged bases.)

3 / By requesting a deadline for filing post - hearing submissions

beyond ten days after the final hearing, the 30 - day time period

for filing the Recommended Order was waived. See F la. Admin.

Code R. 28 - 106.216(2).

4 / The language of 42 U.S.C. § 2000a(a) states:

Equal access. All persons shall be entitled

to the full and equal enjoyment of the goods,

services, facilities, privileges, advantages,

and accommodations of any place of public

accommodation, as defined in this section,

without discrimination or segregation on the

ground of race, color, race, or national

origin.

5 / Some federal courts have applied a modified test for the

fourth element of the prima facie case allowing a complainant to

prove that either (a) the services were made available to

similarly situated persons outside the complainant Ó s protected

class, or (b) the complainant Ð received services in a markedly

hostile manner and in a manner in which a reasonable per son would

find objectively discriminatory. Ñ Christian v. Wal - Mart Stores,

Inc. , 252 F.3d 862, 872 (6th Cir. 2001)). The Eleventh Circuit,

however, Ð has not concretely explicated the elements of a public

accommodation discrimination claim, Ñ or issued bind ing precedent

adopting a modified prima facie case for public accommodation

discrimination. West v. LQ Mgmt., LLC , 156 F. Supp. 3d 1361,

1366 (S.D. Fla. 2015). (Although West notes that the Eleventh

Circuit has cited the Christian test without disapprova l.) In

this case, the undersigned concludes that Petitioner fails to

state a prima facie case under either test.

6 / See Reeves , 594 F.3d at 809 , which stated that it is well -

established that Title VII Ð does not prohibit harassment alone,

however severe and pervasive. Instead, Title VII prohibits

discrimination, including harassment that discriminates based on

a protected category . . . . Ñ ; see also Baldwin v. Blue Cross/Blue

Shield of Ala. , 480 F.3d 1287, 1301 Î 02 (11th Cir. 2007)

( Ð Title VII . . . does not prohibit harassment alone, however

severe and pervasive. Instead, Title VII prohibits

discrimination, including harassment that discriminates based on a

protected category. Ñ ).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Hu man Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Javier Fernando Rivadeneira

43 South Adams Street

Beverly Hills, Florida 34465

(eServed)

Alva Crawford, Esquire

Littler Mendelson

Suite 800

2301 McGee Street

Kansas Cit y, Missouri 64108

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wri tten 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.