20-003439 Jeruscha M. Toussaint vs. Walmart Status: Closed Recommended Order on Friday, February 12, 2021.

Summary: Petitioner failed to prove that Respondent discriminated against her in terminating her employment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ERUSCHA M. T OUSSAINT ,

Petitioner ,

vs. Case No. 20 - 3439

W ALMART ,

Respondent .

/

R ECOMMENDED O RDER

Administrative L aw Judge ( '' ALJ '' ) Brittany O. Finkbeiner conducted the

final hearing in this case for the Division of Administrative Hearings

( '' DOAH '' ) on November 13, 2020, by Zoom conference.

A PPEARANCES

For Petitioner: Jeruscha Toussaint , pro se

5835 Northwest Lomb Court

Port S t . Lucie, Florida 34986

For Respondent: Nancy A. Johnson, Esquire

Littler Mendelson , P.C.

111 N orth Orange Avenue , Suite 1750

Orlando, Florida 32801

S TATEMENT OF T HE I SSUE S

The issue s in this case are w hether Respondent committed the unlawful

employment practice alleged in the Employment Complaint of Discrimination

filed with the Florida Commission on Hu man Relations ( '' FCHR '' ), and, if so ,

what relief should be granted.

P RELIMINARY S TATEMENT

Petitioner, Jeruscha M. Toussaint ( '' Petitioner '' ), filed an Employment

Complaint of Discrimination ( '' Complaint '' ) with FCHR, on February 17,

2020. The Complaint alleged that Petitioner was discriminated against and

retaliated against by her former employer, Walmart ( '' Respondent '' ) , in that

she was subject to '' disparate treatment, retaliation, different terms and

conditions of her employment '' because of her rac e and sex. Petitioner further

alleged that she was paid less than a white male w ith less experience , and

that she was '' terminated for her inquiring about her pay on 10/26/2019. ''

After investigating the allegations raised in PetitionerÔs Complaint, on

Jun e 24, 2020, FCHR rendered a '' Determination: No Reasonable Cause, ''

finding that there was no reasonable cause to support her claims that she

was discriminated against because of her race or sex , or that she was

retaliated against for engaging in activity protected by the Florida Civil

Rights Act.

Petitioner elected to pursue administra tive remedies, timely filing her

Petition for R elief ( '' Petition '' ) with F CHR. On July 31, 2020, FCHR received

a copy of the Petition, which alleged that: 1) Respondent viol ated the Equal

Pay Act; 2) Petitioner was discriminated against because of her race during a

meeting with the store manager and HR; 3) Petitioner was fired for also

being a whistleblower and retaliation; 4) Petitioner was treated different ly

for her race a nd age; and 5) Petitioner was discriminated against due to a

handicap when she did not get breaks when needed.

Respondent filed a Partial Motion to Dismiss Claims of Age

Discrimination and Handicap Discrimination ( '' Motion '' ) on November 11,

2020. Additio nally, the Motion urged the dismissal of PetitionerÔs allegations

that Respondent violated the Equal Pay Act and the Florida Whistleblower

Act on the basis that these allegations are not within the jurisdiction of

FCHR, or the undersigned. During the final hearing, the undersigned

granted the Motion because these claims were not raised in PetitionerÔs

initial Complaint and therefore were not investigated by FCHR, rendering

them outside the jurisdiction of the undersignedÔs statutory authority .

At the final hearing, Petitioner testified on her own behalf, and did not

call any other witnesses. Respondent offered the testimony of People Lead

Hollie Durocher ( '' Ms. Durocher '' ) and offered Exhibits 1 through 4 and 6

through 12 , which were all admitted into evide nce.

The one - volume Transcript was filed with DOAH on December 7, 2020.

Both parties filed proposed recommended orders, which were considered in

the drafting of this Recommended Order.

Unless otherwise indicated, references to the Florida Statutes are t o the

2019 version.

F INDINGS OF F ACT

1. Petitioner is an African - American female.

2. Petitioner began working for Respondent as a part - time Self - Checkout

Host on February 1, 2017. Upon hiring, her initial rate of pay was $9.00 per

hour.

3. After three mo nths of employment, PetitionerÔs pay was increased to

$10.00 per hour in May of 2017. Subsequently, Petitioner received pay

increases rai sing her hourly rate to $11.00 , and then $11.50.

4. In April of 2018, Petitioner was promoted to the full - time position of

Customer Service Manager ( '' CSM '' ). Along with the promotion, Petitioner

also received a rais e , bringing her rate of pay to $13.65 per hour.

5. In April of 2019, Respondent gave Petitioner another raise, resulting in

hourly pay of $13.90.

6. Responde nt maintained a Statement of Ethics, of which Petitioner was

aware. The Statement of Ethics explained that RespondentÔs overall

operations were guided by four core Beliefs, which were: Respect for the

Individual; Service to our Customers; Striving for Exce llence; and Act with

Integrity.

7. Based on what she heard from her coworkers, Petitioner believed that

she was entitled to a market - adjustment pay increase in April of 2019. She

sought information about the pay increase from her store manager and

others.

8. Petitioner reported her belief that she was entitled to a pay increase ,

which she had not received , to RespondentÔs Associate Relations Department

( '' Department '' ). After what was described as a thorough review of

PetitionerÔs concerns, the Department closed the matter.

9. Petitioner testified that a white male named Chance was making more

money than she , based on conversations between Petitioner and Chance .

10. Chance worked as a Money Manager Associate, a position that

Petitioner never held during h er employment with Respondent.

11. Ms. Durocher testified that Chance was not paid more than Petitioner.

12. In 2019, there were ten individuals who held the position of CSM at

the store where Petitioner worked. In addition to Petitioner, those who

worke d in CSM positions included multiple African - American females and

one African - American male.

13. Petitioner did not present any evidence to suggest or establish that

any male, or non - African - American, employee was paid more than she was

for performing sim ilar work.

14 . On October 26, 2019, Petitioner discussed the problem she perceived

with her rate of pay with Ms. Durocher. During their conversation, Petitioner

raised her voice and the interaction escalated to the point that another

employee went to enli st the assistance of the Store Manager. When the Store

Manager arrived, he joined the conversation with Petitioner and

Ms. Durocher.

15. Ms. Durocher expressed to Petitioner that she believed that Petitioner

was being paid commensurate with her skills and duties; and that her rate of

pay had been investigated and was determined to be appropriate.

16. Throughout the conversation, Ms. Durocher perceived RespondentÔs

conduct to be disrespectful. Ms. Durocher and the Store Manager repeatedly

encouraged Petiti oner to calm down, but their attempts were unsuccessful.

On the same day, PetitionerÔs employment was terminated by Respondent for

violating the core Belief of Respect for the Individual.

C ONCLUSIONS OF L AW

1 7 . DOAH has personal and subject matter jurisd iction in this proceeding

pursuant to sections 120.569 and 12 0.57(1) , Florida Statutes .

Petitioner Ôs Claim of Discrimination Based on Race and Sex

1 8 . The Florida Civil Rights Act of 1992 ( '' FCRA '' ), chapter 760, Florida

Statutes, prohibits discriminatio n in the workplace. Among other things, the

FCRA makes it unlawful for an employer:

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 individualÔs race, color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status.

§ 760.10(1)(a), Fla. Stat.

1 9 . The FCRA, as amended, is patterned after Title VII of the Civil Rights

Act of 1964 and 19 91 ( '' Title VII '' ). Thus, federal decisional authority

interpreting Title VII is applicable to cases arising under FCRA. Johnson v.

Great Expressions Dental Ctrs. of Fla., P.A. , 132 So. 3d 1174, 1176 (Fla. 3d

DCA 2014).

20 . The burden of proof in this proc eeding is on Petitioner . See DepÔt of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co ., 670 So.

2d 932 (Fla. 1996). To prove a violation of FCRA, Petitioner must establish a

prima facie case of discrimination by a preponderance of the e vidence. See

Valenzuela v. GlobeGround N. Am ., LLC , 18 So. 3d 17, 22 (Fla. 3d DCA

2009). A preponderance of the evidence is defined as '' the greater weight of

the evidence, '' or evidence that '' more likely than not '' tends to prove a certain

proposition . S . Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC , 139 So. 3d 869,

872 (Fla. 2014).

2 1 . A plaintiff can establish a prima facie case for discrimination either by

direct or circumstantial evidence. Direct evidence requires actual proof that

the employer acted w ith a discriminatory motive when making the

employment d ecision in question. Scholz v. RDV Sports, Inc., 710 So. 2d 618,

624 (Fla. 5th DCA 1998) . C ircumstantial evidence, on the other hand,

requires a petitioner to satisfy the four - prong test established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973) . Here, PetitionerÔs claim is based

entirely on circumstantial evidence.

2 2 . Based on the United States Supreme CourtÔs analysis in McDonnell

Douglas , in order to establish a prima facie case based on circumstantial

evidence, Petitioner must show that s he:

1) belongs to a protected class;

2) was qualified to do the job;

3) was subjected to an adverse employment action; and

4) the employer treated sim ilarly situated employees

outside the class more favorably.

Id. at 802 - 03.

2 3 . If Petitioner were to satisfy all four prongs of the McDonnell

Douglas framework, then the burden would shift to Respondent to produce

evidence of a legitimate, non - discriminatory reaso n for his termination. Id.

2 4 . Petitioner satisfied the first prong by establishing that she is part of a

protected class within the meaning of FCRA, which prohibits discrimination,

in pertinent part, based on '' sex '' and '' race. '' Petitioner established t hat she is

an African - American female.

2 5 . The parties do not dispute that Petitioner meets the criteria for the

second prong in that s he was qualified to do the job of a CSM , for which s he

was employed by Respondent.

2 6 . Petitioner also satisfied the thi rd prong, as her termination from

employment by Respondent is clearly an adverse employment action, which

constitutes '' a significant change in employment status, such as discharge... ''

Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 744 (1998).

2 7 . PetitionerÔs claim fails as to the fourth prong, which requires a

showing that Respondent treated similarly situated employees outside the

class more favorably . The fourth prong requires an analysis of comparators to

illustrate the employerÔs disparate tr eatment of employees. C omparators

must be '' similarly situated in all material respects. '' Lewis v. City of Union

City, Ga . , 918 F.3d 1213, 1218 (11th Cir. 2019). The comparator that

Petitioner presented , a white male, did not hold the same position as

Pet itioner, and therefore, he was not similarly situat ed in all material

respects.

2 8 . Failure to establish a prima facie case of discrimination ends the

inquiry. Kidd v. Mando Am. Corp ., 731 F. 3d 1196, 1202 (11th Cir. 2013).

Petitioner has not made a prima facie case showing, by a preponderance of

the evidence, that Respondent discriminated against her based on her race or

sex.

PetitionerÔs Claim of Retaliation

2 9 . S ection 760.10(7), provides:

It is an unlawful employment practice for an

employer, an empl oyment 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 practice 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.

30 . An employee can establish that she suffered retaliation under FCRA

by proving: (1) she engaged in an activity protected by FCRA; (2) s he suffered

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

between the protected activity and the adverse employment action.

Pennington v. City of Huntsville , 261 F.3d 1262, 1266 (11th Cir. 2001) ( citing

Olmstead v. Taco Bell Corp ., 141 F.3d 1457, 1460 (11th Cir.1998) ). In the

present case, Petitioner failed to show a causal connection between any

purported protected activity and RespondentÔs adverse employment action

against her. The e vidence established that , although Petitioner complained to

Respondent about her pay, her termination was not motivated by such

complaints. Rather, her termination was based on RespondentÔs reasonable

determination that PetitionerÔs conduct violated Respon dentÔs core Belie f of

Respect for the Individual.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that F C HR enter a final order dismissing the Petition for

Relief.

D ONE A ND E NTERED this 1 2 th day of Februa ry, 2021 , in Tallahassee, Leon

County, Florida.

S

B RITTANY O. F INKBEINER

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 1 2 th day of February, 2021.

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Jami e Rotteveel, Esquire

Florida Commission on Human Relations Littler Mendelson, P.C.

4075 Esplanade Way , Room 110 2301 McGee Street , 8th Floor

Tallahassee, Florida 32399 - 7020 Kansas City, Missouri 64108

Jeruscha Toussaint Kimberly Doud, Esquire

5835 Northwest Lomb Court Littler Mendelson, P.C.

Port St. Lucie, Florida 3 4986 111 North Orange Avenue , Suite 1750

Orlando, Florida 32801

Allison Wiggins, Esquire

Littler Mendelson, P.C. Nancy A. Johnson, Esquire

111 North Orange Avenue , Suite 1750 Littler Mendelson, P.C.

Orlando, Florida 32801 111 N orth Orange Avenue , Suite 1750

Orlando, Florida 32801

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Or der should be filed with the agency that will issue the Final Order in this

case.