18-000297 Ramon Santiago Lopez vs. Wal-Mart Stores East, Lp Status: Closed Recommended Order on Thursday, October 25, 2018.

Summary: Petitioner failed to prove that his dismissal from employment was because of his age or national origin and not because of his failure to comply with a company policy on the handling of found personal property.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAMON SANTIAGO LOPEZ,

Petitioner,

vs. Case No. 18 - 0297

WAL - MART STORES EAST, LP,

Respondent.

_______________________________/

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 26,

2018, in Jacksonville, Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings (ÐDOAHÑ) .

APPEARANCES

For Petitioner: Ramon Santiago Lopez, pro se

10404 Lawson Road

Jacksonville, Florida 32246

For Respondent: Alva Cross Crawford, Esquire

Littler Mendleson, P.C.

2301 McGee Street, Suite 800

Kansas City, Missouri 64108

STATEMENT OF THE ISSUE

The issue is whether Respondent, Wal - Mart Stores East, LP

(ÐWalmartÑ), discriminated against Petitioner, Ramon S antiago

Lopez (ÐPetitionerÑ), based upon his national origin or age,

and/or terminated his employment in retaliation for engaging in

protected activity, in violation of section 760.10, Florida

Statutes (2016). 1/

PRELIMINARY STATEMENT

On or about January 9, 2017, Petitioner filed with the

Florida Commission on Human Relations (ÐFCHRÑ) a Technical

Assistance Questionnaire for Employment Complaints against

Walmart. Petitioner alleged Walmart discriminated against him

because of his age (over 40) and national origin

(Hispanic/Cuban). He also alleged that Walmart terminated his

employment on January 14, 2016, in retaliation for engaging in

protected activity. At some point subsequent to January 9,

2017, Petitioner filed with FCHR an Employment Charge of

Discrimination 2/ against , Walmart expressing the same allegations

as the Technical Assistance Questionnaire.

The FCHR conducted an investigation of PetitionerÓs

allegations. On December 15, 2017, the FCHR issued a written

determination that there was no reasonable cause to believe that

an unlawful practice occurred. The FCHRÓs determination stated

as follo ws, in relevant part:

The Complainant in this matter filed a

charge of discrimination against the

Respondent alleging that he was subjected to

different terms and conditions of employment

and discharged because of his age and

national origin. The facts an d evidence as

set forth in the Investigative Memorandum do

not support the ComplainantÓs allegation.

The evidence in this matter reveals that the

Complainant was terminated because he did

not comply with the RespondentÓs policy

regarding honesty and integ rity when he

misappropriated property that belonged to a

customer of the Respondent. The Complainant

was not terminated due to his age and

national origin and he did not provide any

credible evidence to prove otherwise.

Likewise, the Complainant did not provide

any credible evidence to prove that he was

subjected to different terms and conditions

of employment.

On January 16, 2018, Petitioner timely filed a Petition for

Relief with the FCHR. On January 17, 2018, the FCHR referred

the case to DOAH. The case was scheduled for hearing on

March 28, 2018. The hearing was continued twice, once because

Respondent lost its lead counsel on the eve of the final

hearing , and once because Petitioner missed a scheduled

deposition due to illness. The hearing was ul timately scheduled

for June 26, 2018, on which date it was convened and completed.

At the hearing, Luis Nunez acted as the Spanish language

interpreter for Petitioner.

Petitioner testified on his own behalf and entered

PetitionerÓs composite Exhibit 1 into evidence. PetitionerÓs

Exhibit 2 was accept ed for demonstrative purposes. Respondent

presented the testimony of former Asset Protection Manager

Joshua Cregut, former Assistant Store Manager April Johnson , and

Store Manager Scott Mallatt. RespondentÓs E xhibits 7, 8, and 10

through 19 were entered into evidence.

The one - volume Transcript of the hearing was filed at DOAH

on July 23, 2018. On August 7, 2018, Respondent filed a motion

to extend the time for submitting proposed recommended orders,

which wa s granted by O rder dated August 14, 2018. In accordance

with the O rder granting extension, Petitioner timely filed his

proposed recommended order on August 21, 2018 , and Respondent

timely filed its proposed recommended order on August 22, 2018.

FINDING S OF FACT

1. Walmart is an employer as that term is defined in

section 760.02(7). Walmart is a national retailer.

2. Petitioner is a Cuban (Hispanic) male. He was 62 years

old when he was hired by Walm art in November 2005 and was

72 years old at the tim e of his dismissal.

3. Petitioner was initially hired to work at a store in

Jacksonville , but transferred to Tampa. In June 2010,

Petitioner requested a transfer back to Jacksonville and was

assigned to Store 4444 on Shops Lane, just off Philips Highway

and I - 95 in Jacksonville.

4. The s tore m anager at Sto re 4444 was Scott Mallatt.

Mr. Mallatt approved PetitionerÓs transfer request and testified

that he Ðvery muchÑ got along with Petitioner. Petitioner

confirmed that he never had a problem with Mr. Mal latt.

5. Petitioner testified that when he first started at

Store 4444, he had no problems. After about four months,

however, he began reporting to a supervisor he recalled only as

ÐLee.Ñ Petitioner described Lee as Ðkind of a maniac.Ñ Lee

would harass Petitioner and give him impossible assignments to

accomplish. Petitioner testified that he complained repeatedly

to Mr. Mall a tt about LeeÓs abuse , but that nothing was ever done

about it. Eventually, Petiti oner gave up complaining to

Mr. Mall a tt.

6. Mr . Mall a tt testified that Petitioner never complained

to him about being discriminated against because of his national

origin or age. Petitioner apparently did complain about being

overworked, but never tied these complaints to any

discriminatory intent on the part of Lee. Petitioner testified

that Lee no longer worked at Store 4444 in January 2016.

7. From 2010 to 2015, Petitioner worked from 1:00 p.m. to

10:00 p.m. in various departments, including Grocery, Dairy,

Paper, Pet, and Chemical. In 2015, Pet itioner spoke with

Mr. Mallatt about working at least some day shifts rather than

constant nights. Mr. Mallatt approved PetitionerÓs request. In

August 2015, Petitioner was moved to the day shift in the

Maintenance department. As a day a ssociate, Petiti oner

typically worked from 8:30 a.m. to 5:30 p.m.

8. Assistant Store Manager April Johnson transferred to

Store No. 4444 in October 2015. Petitioner reported directly to

Ms. Johnson.

9. On January 14, 2016, Petitioner was scheduled to work

from 8:30 a.m . until 5:30 p.m. He drove his van into the

parking lot of Store No. 4444 at approximately 7:58 a.m. He

parked in his usual spot, on the end of a row of spaces that

faced a fence at the border of the lot. Petitioner liked this

spot because the foliage n ear the fence offered shade to his

vehicle.

10. Closed circuit television (ÐCCTVÑ) footage , from a

Walmart camera with a partial view of the parking lot , shows

Petitioner exiting his vehicle at around 8:00 a.m. Petitioner

testified that he could see some thing on the ground in the

parking lot, 50 to 60 meters away from where his van was parked.

The CCTV footage shows Petitioner walking across the parking

lot, apparently toward the object on the ground.

11. Petitioner testified there were no cars around t he

item, which he described as a bucket of tools. Petitioner

stated that the bucket contained a screwdriver, welding gloves,

a welding face mask , and a hammer.

12. The CCTV footage does not show the bucket. Petitioner

crosses the parking lot until he go es out of camera range. 3/ A

few seconds later, Petitioner returns into camera range, walking

back toward his car while carrying the bucket of tools.

13. When Petitioner reaches his van, he opens the rear

door , places the bucket of tools inside, then clos es the rear

door .

14. Petitioner testified that after putting the tools in

the back of his van, he went to the C ustomer S ervice D esk and

informed two female African American c ustomer s ervice a ssociates

that he had found some tools and put them in his car.

Petitioner conceded that he told no member of management about

finding the tools.

15. Walmart has a written Standard Operating Procedure for

dealing with items that customers have left behind on the

premises. The associate who finds the item is require d to take

the item to the Customer Service Desk, which functions as the

Ðlost and foundÑ for the store. Mr. Mallatt and Ms. Johnson

each testified that there are no exceptions to this policy.

16. Petitioner was aware of the Standard Operating

Procedure. On prior occasions, he had taken found items to the

Customer Service Desk. Petitioner conceded that it would have

been quicker to take the bucket of tools to the Customer Service

Desk than to his van. However, he testified that he believed

that he could have been fired if he had taken the tools to the

desk before he had clocked in for work. Petitioner cited a

Walmart policy that made Ðworking off the clockÑ a firing

offense.

17. It transpired that the policy to which Petitioner

referred was WalmartÓs W age and Hour policy, which states in

relevant part:

It is a violation of law and Walmart policy

for you to work without compensation or for

a supervisor (hourly or salaried) to request

you work without compensation. You should

never perform any work for W almart without

compensation.

18. This language is plainly intended to prevent Walmart

from requiring its employees to work without compensation.

Petitioner, whose English language skills are quite limited, was

adamant that this policy would have allowed Walmart to fire him

if he performed the ÐworkÑ of bringing the tools to the Customer

Service Desk before he was officially clocked in for his shift.

Therefore, he put the tools in his van for safekeeping and

informed the Customer Service Desk of what he had done.

19. Petitioner was questioned as to why he believed it was

acceptable for him to report the situation to the Customer

Service Desk , but not acceptable for him to bring the tools to

the desk. The distinction he appeared to make was that the act

of carrying the tools from the parking lot to the desk would

constitute ÐworkÑ and therefore be forbidden, whereas just

stopping by to speak to the Customer Service Desk a ssociate was

not Ðwork.Ñ

20. The evidence established that Petitioner would not

have violated any Walmart policy by bringing the tools to the

Customer Service Desk before he clocked in. He could have been

compensated for the time he spent bringing in the tools by

making a Ðtime adjustmentÑ on his time card. Mr. Mallatt

testified that ti me adjustments are done on a daily basis when

associates perform work prior to clocking in or after clocking

out. Petitioner merely had to advise a member of management

that he needed to make the time adjustment. Mr. Mallatt was

confident that the adjust ment would have been granted under the

circumstances presented in this case.

21. Petitioner did not go out to retrieve the tools after

he clocked in. Mr. Mallatt stated that employees frequently go

out to their cars to fetch items they have forgotten, an d that

Petitioner absolutely would have been allowed to go get the

tools and turn them in to the Customer Service Desk.

22. Later on January 14, 2016, Ms. Johnson was contacted

by a customer who said tools were stolen off of his truck. 4/

Ms. Johnson had not heard anything about lost tools. She looked

around the Customer Service Desk, but found no tools there.

Ms. Johnson also called out on the store radio to ask if anyone

had turned in tools.

23. Finally, the c ustomer s ervice m anager at the Customer

Se rvice Desk told Ms. Johnson that Petitioner had said something

about tools earlier that morning. Ms. Johnson called Petitioner

to the front of the store and asked him about the missing tools.

Petitioner admitted he had found some tools in the parking lot

and had placed them in his vehicle.

24. Ms. Johnson asked Petitioner why he put the tools in

his vehicle. Petitioner told her that he was keeping the tools

in his car until the owner came to claim them. Ms. Johnson

testified that Petitioner offered no other explanation at that

time. He just said that he made a Ðmistake.Ñ Ms. Johnson

explained to Petitioner that putting the tools in his vehicle

was not the right thing to do and that he should have turned

them in to Ðlost and found,Ñ i.e., the Customer Service Desk.

Petitioner was sent to his van to bring in the tools.

25. After this initial co nversation with Petitioner,

Ms. Johnson spoke with Mr. Mallatt and Mr. Cregut to decide how

to treat the incident. Mr. Cregut obtained approval from his

manager to conduct a full investigation and to interview

Petitioner. Mr. Cregut reviewed the CCTV footage described

above and confirmed that Petitioner did not bring the tools to

the Customer Service Desk.

26. Ms. Johnson and Mr. Cregut spoke with Petitioner fo r

approximately an hour to get his side of the story. Petitioner

also completed a written statement in which he admitted finding

some tools and putting them in his car.

27. Mr. Cregut described Petitioner as Ðvery tense and

argumentativeÑ during the inte rview. As the interview

continued, Mr. Cregut testified that PetitionerÓs reaction to

the questions was getting Ða little bit more hostile [and]

aggressive.Ñ Mr. Cregut decided to try to build rapport with

Petitioner by asking him general questions about himself. This

tactic backfired. Petitioner volunteered that he was a Cuban

exile and had been arrested several times for his opposition to

the Castro regime. Petitioner then claimed that Mr. Cregut

discriminated against him by asking about his personal life and

prejudged him because of his activism.

28. Mr. Cregut credibly testified that he did not judge or

discriminate against Petitioner based on the information

Petitioner disclosed and that he only asked the personal

questions to de - escalate the sit uation. Mr. CregutÓs only role

in the case was as an investigative factfinder. His report was

not colored by any personal information disclosed by Petitioner.

29. At the conclusion of the investigation, Mr. Mallatt

made the decision to terminate Petitio nerÓs employment. The

specific ground for termination was ÐGross Misconduct Î

Integrity Issues,Ñ related to PetitionerÓs failure to follow

Walmart policy by bringing the tools to the Customer Service

Desk. Mr. Mallatt testified that his concern was that

Petitioner intended to keep the bucket of tools if no owner

appeared to claim them. Mr. Mallatt credibly testified that had

Petitioner simply taken the tools to the Customer Service Desk ,

rather than putting them in his vehicle, he would have remained

emp loyed by Walmart.

30. Walmart has a Ð Coaching for Improvement Ñ policy

setting forth guidelines for progressive discipline. While the

progressive discipline process is used for minor and/or

correctable infractions , such as tardiness, Ð seriousÑ miscon duct

constitutes a ground for immediate termination. The coaching

policy explicitly sets forth Ð theft Ñ and Ðintentional failure to

follow a Walmart policy Ñ as examples of serious misconduct

meriting termination.

31. Petitioner conceded that no one at Wal mart overtly

discriminated against him because of his age or national origin.

He testified that he could feel the hostility toward Hispanics

at Store 4444, but he could point to no particular person or

incident to bolster his intuition.

32. Petitioner cl aimed that his dismissal was in part an

act of retaliation by Ms. Johnson for his frequent complaints

that his Maintenance counterparts on the night shift were not

adequately doing their jobs, leaving messes for the morning crew

to clean up. Ms. Johnson c redibly testified that PetitionerÓs

complaints did not affect her treatment of him or make her want

to fire him. In any event, Ms. Johnson played no role in the

decision to terminate PetitionerÓs employment.

33. PetitionerÓs stated reason for failing to follow

Walmart policy regarding found items would not merit a momentÓs

consideration but for PetitionerÓs limited proficiency in the

English language. It is at least conceivable that someone

struggling with the language might read the Walmart Wage and

Hou r policy as Petitioner did.

34. Even so, Petitioner was familiar with the found items

policy, and common sense would tell an employee that he would

not be fired for turning in customer property that he found in

the parking lot. At the time of his dismi ssal, Petitioner had

been working at Walmart for over 10 years. It is difficult to

credit that he was completely unfamiliar with the concept of

time adjustment and truly believed that he could be fired for

lifting a finger to work when off the clock.

35. Walmart showed that in 2016 it terminated three other

employees from Store 4444 based on ÐGross Misconduct Î Integrity

Issues.Ñ All three were under 40 years of age at the time their

employment was terminated. Two of the employees were African

American; the third was Caucasian. Petitioner offered no

evidence that any other employee charged with gross misconduct

has been treated differently than Petitioner.

36. At the hearing, PetitionerÓs chief concern did not

appear to be the alleged discrimination , but the implication

that he was a thief, which he found mortally offensive. It

could be argued that Mr. Mallatt might have overreacted in

firing Petitioner and that some form of progressive discipline

might have been more appropriate given all the circums tances,

including PetitionerÓs poor English and his unyielding

insistence that he never intended to keep the tools.

37. However, whether PetitionerÓs dismissal was fair is

not at issue in this proceeding. The issue is whether Walmart

has shown a legiti mate, non - discriminatory reason for

terminating PetitionerÓs employment. At the time of his

dismissal, Petitioner offered no reasonable explanation for his

failure to follow Walmart policy. Mr. MallattÓs suspicion

regarding PetitionerÓs intentions as to the tools was not

unfounded and was not based on any discriminatory motive.

38. Petitioner offered no credible evidence disputing the

legitimate, non - discriminatory reasons given by Walmart for his

termination.

39. Petitioner offered no credible evidence that WalmartÓs

stated reasons for his termination were a pretext for

discrimination based on PetitionerÓs age or national origin.

40. Petitioner offered no credible evidence that his

termination was in retaliation for his engaging in protected

activity. The employee who was allegedly retaliating against

Petitioner played no role in the decision to terminate his

employment.

41. Petitioner offered no credible evidence that Walmart

discriminated against him because of his age or national origin

in violatio n of section 760.10.

CONCLUSIONS OF LAW

42. 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.

43. The Florida Civil Rights Act of 1992 (the "F lorida

Civil Rights Act" or the "Act"), chapter 760, prohibits

discrimination in the workplace.

44. 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 refus e 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.

45. Walmart 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 cal endar year, and any

agent of such a person.

46. 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 McDonnell 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. 5/ 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).

47. Unde r the McDonnell analysis, 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 preliminary 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 evid ence 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).

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

employme nt 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) Walmart

treated similarly situated employees outside of his protected

classifications more favorably; and (4) Petitioner 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. Ora nge Cnty . , 447 F.3d 1319, 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).

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

unlawful employment discrimination.

50. Petitioner established that he is a member of a

protected group, in that he is over 40 years of age and is

Hispanic (Cuban). Petitioner esta blished that he was subject to

an adverse employment action, in that he was dismissed from his

position as a day a ssociate after holding the same basic job for

more than 10 years. Petitioner was qualified for the job and

had performed it at a level that m et WalmartÓs expectations up

to the point he was dismissed.

51. However, no evidence supports an inference that

Petitioner was discriminated against based upon his age or

national origin. Petitioner offered no persuasive evidence to

establish that any similarly situated employee was treated

differently by Walmart. 6/

52. Walmart presented adequate evidence of legitimate,

non - discriminatory reasons for Petitioner's termination.

PetitionerÓs failure to follow a clear policy regarding the

handling of fo und property was itself a firing offense under

WalmartÓs ÐCoaching for ImprovementÑ policy. Petitioner was

aware of the policy, having followed the correct procedure for

the handling of found items on at least one previous occasion.

Further, the manner i n which Petitioner chose to handle the

bucket of tools he found in the parking lot raised reasonable

suspicions that he intended to keep the items in the event the

rightful owner did not appear to claim them.

53. A courtÓs role is not to sit as a Ðsuper - personnel

department that reexamines an entityÓs business decisions.Ñ

Denney v. City of Albany , 247 F.3d 1172, 1188 (11th Cir. 2001)

( quoting Elrod v. Sears, Roebuck & Co. , 939 F.2d 1466, 1470

(11th Cir. 1991) ) . While the undersigned might have stopped

short of firing Petitioner, it is not this tribunalÓs function

to second - guess Mr. MallattÓs personnel decision. Petitioner

offered no evidence that his dismissal was because of his age or

national origin, or for any reason other than that asserted by

Wal mart.

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

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

pract ice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

55. Because the McDonnell analysis also applies in

employment retaliation cases, Petitioner has the burden of

establishing by a preponderance of evidence a prima facie case

of unlawful retaliation. See , e.g. , Burlington N . & Santa Fe v.

White , 548 U.S. 53 (2006).

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

employm ent retaliation under chapter 760, Petitioner must

establish that: (1) he engaged in protected activity; (2) he

suffered an adverse employment action; and (3) there was a

causal relationship between (1) and (2). See Pennington v. City

of Huntsville , 261 F.3d 1262, 1266 (11th Cir. 2001). 7/ To

establish this causal relationship, Petitioner must prove Ðthat

the unlawful retaliation would not have occurred in the absence

of the alleged wrongful action or actions of the employer.Ñ

Univ. of Tex. Med. Ctr. v. Nassar , 133 S. Ct. 2517, 2533 (2013).

This standard has also been called Ðbut - for causation.Ñ See,

e.g. , Frazier - White v. Gee , 818 F.3d 1249, 1258 (11th Cir. 2016)

57. Petitioner at least arguably established that he

engaged in protected activity by com plaining to his immediate

supervisor about the working conditions at Store 4444.

58. Petitioner established that he suffered an adverse

employment action by having his employment at Walmart

terminated.

59. Petitioner has failed to establish the element o f

causation. PetitionerÓs theory is that his complaints to his

supervisor, Ms. Johnson, angered her and led to his firing. The

facts at hearing demonstrated that Ms. Johnson was not bothered

by PetitionerÓs complaints , and that in any event , Ms. Johnson

was not involved in the decision to terminate PetitionerÓs

employment.

60. The termination decision was made by Mr. Mallatt, with

whom Petitioner had a congenial relationship up to January 14,

2016. There was no evidence that Mr. Mallatt was aware of

P etitionerÓs complaints to Ms. Johnson at the time Petitioner

was fired. The courts recognize a Ðcommon senseÑ requirement

that Ð[a] decision maker cannot have been motivated to retaliate

by something unknown to him.Ñ Brungart v. BellSouth Telecomms.,

Inc . , 231 F.3d 791, 799 (11th Cir. 2000). 8/

61. In summary, Petitioner failed to establish that

WalmartÓs reason for terminating his employment was based on his

age or national origin. Petitioner likewise failed to establish

that WalmartÓs adverse employm ent action was in retaliation for

his having engaged in protected activities.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding t hat Wal - Mart Stores East, LP , did

not commit any unlawful employment practices and dismissing the

Petition for Relief filed in this case.

DONE AND ENTERED this 25th day of October , 2018 , 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 Clerk of th e

Division of Administrative Hearings

this 25th day of October , 2018 .

ENDNOTE S

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

otherwise specified. Section 760.10 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.

2/ The Employment Charge of Discrimination document was not part

of the record.

3/ Asset Protection Manager Joshua Cregut testified that the

ou tdoor cameras were locked into a fixed position and there was

an unfortunate blind spot in the view of the parking lot.

Petitioner insisted that the cameras were not fixed and that

Walmart was withholding exculpatory video footage. Mr. CregutÓs

testimony on this point is credited. Petitioner was very

concerned with an allegation (not made by Walmart but by the

owner of the bucket of tools) that he had stolen the tools off

the back of the ownerÓs truck. PetitionerÓs testimony that he

found the tools on t he ground is credited. There is no need for

video footage to confirm PetitionerÓs testimony on this point.

4/ Petitioner denied that the bucket of tools was on a truck.

He steadfastly testified that the bucket was on the ground in

the parking lot, with no cars nearby. The undersigned credits

PetitionerÓs testimony on this point. Most likely, the customer

took the bucket out of the truck while loading his purchases,

then forgot and drove off without it. When he later discovered

the bucket was missing, the customer decided it had been stolen.

For WalmartÓs purposes, the important factor was that Petitioner

knew the tools belonged to someone else , but did not follow the

proper procedure for turning them in.

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

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

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

remarks mere ly 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

blatant rema rks, 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.

6/ As to t he 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

nece ssary 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) ( quot ing Holifield v. Reno , 115 F.3d

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

important factors in the disciplinary

context are the nature of the 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 employers'

reasonable decisions and confusing apples

with oranges. See Dartmouth Review

v. Dartmouth College , 889 F.2d 13, 1 9 (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 enu nciated 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 132 3 n.2.

In any event, Petitioner in the instant case failed to

provide any persuasive evidence to establish disparate

treatment.

7/ Florida courts have articulated an identical standard:

To establish a prima facie case of

retaliation under section 760 .10(7), a

plaintiff must demonstrate: (1) that he or

she engaged in statutorily protected

activity; (2) that he or she suffered

adverse employment action and (3) that the

adverse employment action was causally

related to the protected activity. See

Harpe r v. Blockbuster EntmÓt Corp. , 139 F.3d

1385, 1388 (11th Cir.), cert. denied 525

U.S. 1000, 119 S.Ct. 509, 142 L.Ed.2d 422

(1998) . Once the plaintiff makes a prima

facie showing, the burden shifts and the

defendant must articulate a legitimate,

nondiscrim inatory reason for the adverse

employment action. Wells v. Colorado Dep't

of Transp. , 325 F.3d 1205, 1212 (10th Cir.

2003). The plaintiff must then respond by

demonstrating that defendant's asserted

reasons for the adverse action are

pretextual. Id .

Bl izzard v. Appliance Direct, Inc. , 16 So. 3d 922, 926 (Fla. 5th

DCA 2009).

8/ Brungart was decided under the Family and Medical Leave Act,

but its reasoning as to the element of retaliation has been

repeatedly applied in cases involving Title VII of the C ivil

Rights Act of 1964, 42 U.S.C. § 2000e et seq . See , e.g. ,

Mitchell v. Mercedes - Benz U.S. IntÓl, Inc. , 637 Fed. Appx. 535,

539 (11th Cir. 2015) ; and Willis v. Publix Super Mkts., Inc. ,

619 Fed. Appx. 960, 962 (11th Cir. 2015).

COPIES FURNISHED:

Tamm y S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Ramon Santiago Lopez

10404 Lawson Road

Jacksonville, Florida 32246

Christina Tapia, Esquire

Littler Mendelson, P.C.

23 01 McGee Street

Kansas City, Missouri 64108

Alva Cross Crawford, Esquire

Littler Mendelson , P.C.

Suite 800

2301 McGee Street

Kansas City, Missouri 64108

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Espl anade 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 shou ld be filed with the agency that

will issue the Final Order in this case.