20-004561 Vanessa Mckever vs. Wal-Mart Stores East, Lp Status: Closed Recommended Order on Tuesday, June 8, 2021.

Summary: The greater weight of the evidence did not establish that Wal-Mart retaliated against Petitioner or subjected her to disparate treatment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

V ANESSA M CKEVER ,

Petitioner ,

vs. Case No. 20 - 4561

W AL - M ART S TORES E AST , L P ,

Respondent .

/

R ECOMMENDED O RDER

Pursu ant to notice, a final hearing was conducted on March 11, 2021, via

Zoom before Garnett W. Chisenhall, a duly designated Administrative Law

Judge of the Division of Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: Vanessa Yvette McKeve r , pro se

9268 Hawkeye Drive

Jacksonville, Florida 32221

For Respondent: Nicole B. Dunlap, Esquire

Littler Mendelson, PC

111 North Orange Avenue

Orlando, Florida 32801

S TATEMENT OF T HE I SSUE

The issue is whether Wal - Mart Stores East, LP (ÑResponde ntÒ or ÑWal -

MartÒ) , committed an unlawful employment practice by discriminating

against Vanessa McKever based on her disability.

P RELIMINARY S TATEMENT

Ms. McKever filed an Employment Complaint of Discrimination on

September 30, 2019, with the Florida Comm ission on Human Relations (Ñthe

CommissionÒ) alleging that Wal - Mart subjected her to an unlawful

employment practice. Specifically, Ms. McKever alleged that she requested

part - time status after she suffered a severe asthma attack at work.

However, as de scribed in the following statement from her Employment

Complaint of Discrimination, Ms. McKever received far less than the 32

hours a week she expected:

[Ms. McKever] began her employment with

Respondent on 09/15/2005. [She] was subjected to

disparate tr eatment [and] different terms and

conditions of [employment] because of her

disability. [Ms. McKever] performed the duties and

responsibilities of her position in a satisfactory

manner and was not the subject of any disciplinary

issues. In 10/2017 [Ms. Mc Kever] had an incident

at work thatÔs related to her disability and was

rushed to the hospital. Subsequently, [she] decided

to reduce her hours from 5 days of work [per week]

to 4 days [per week], on an 8hr shift. This change

would mean that [Ms. McKever] would go from full -

time to part - time. [Ms. McKever]Ôs physician

agreed with her decision. [She] continued to have

issues with her disability but could still work her

4 days. In 11/2017, [Ms. McKever] noticed that her

schedule had been reduced and [she] was only

being schedule[d] 2 days a week. [She] had a

discussion with both Manager Maria Echevarria

and Store Manager Daryl Rieli regarding the

reduction of her hours. Mr. Rieli granted

[Ms. McKever] her 4 day a week schedule, but that

only last ed a month. Shortly, in mid - 01/2018, [her]

hours were reduced again this time gradually.

Mr. Rieli informed [Ms. McKever] that due to [her]

accommodation request he consider[ed] her

schedule to be closed and would provide her with

hours left over from other employees.

[Ms. McKever] believes that her reduction in hours

is in retaliation for requesting an accommodation

for her disability. [She] states that due to the

reduction in hours she has lost her health

insurance, her ability to qu alify for FMLA, has had

to pawn some of her personal belongings, move in

with her father and has [lost] her only means of

transportation.

The Commission issued a Notice on October 2, 2020, concluding there was

no reasonable cause to conclude that an un lawful employment practice

occurred. Ms. McKever responded by filing a Petition for Relief, and the

Commission referred this matter to DOAH on October 15, 2020, for a formal

administrative hearing.

After two continuances, the final hearing was convened on March 11,

2021. Petitioner presented testimony from herself, Martha Davis, and Eva

Green. PetitionerÔs Exhibits 1 through 6 were accepted into evidence over

RespondentÔs relevancy objections. Wal - Mart presented testimony from Daryl

Ri e li and Maria Echevar ria. RespondentÔs Exhibits 1 through 3, 5 through 7,

9, 10, and 15 through 17 were accepted into evidence.

The two - volume final hearing Transcript was filed on April 8, 2021. Both

parties filed timely proposed recommended orders that were considered in t he

preparation of this Recommended Order.

F INDINGS OF F ACT

Based on the oral and documentary evidence adduced at the final hearing,

the entire record of this proceeding, and matters subject to official

recognition, the following Findings of Fact are made:

1. Ms. McKever began working part - time for Wal - Mart 1 on September 15,

2005, as an overnight stocker in the storeÔs general merchandise section. She

was responsible for restocking shelves with merchandise that had been

1 The store at issue is denominated as Ñ# 1083Ò and is located in Jacksonville, Florida.

offloaded from trucks and placed o n pallets. She held that position during her

entire tenure at Wal - Mart and usually worked the shift beginning at

10:00 p.m. and ending the next morning at 7:00 a.m. Approximately one year

after she began working at Wal - Mart, Ms. McKever accepted an offer to

become a full - time stocker. 2 At that point, she was working the 10:00 p.m.

to 7:00 a.m. shift Sunday through Thursday.

2. Ms. McKever has suffered from asthma since birth. Her asthma attacks

occur with little warning and can be triggered by numerous environmental

factors such as hot and cold temperatures, dust, pollen, insect bites, strong

odors, cologne, perfume, cleaning products, and seafood. She typically

experiences three to five asthma attacks a month. An asthma attack can

leave Ms. McKever in a depleted state, and it can take a few days for her

strength to return.

3. Wal - Mart was aware of Ms. McKeverÔs condition. When she was

initially hired, Ms. McKever notified the hiring manager that her condition

might occasionally prevent her from comin g to work. Wal - Mart requires

employees who are unable to work for a certain number of consecutive days to

take FMLA leave , 3 and Ms. McKeverÔs asthma had led to her requesting

FMLA leave multiple times during her employment with Wal - Mart.

4. Ms. McKever was performing her stocking duties one night in October

of 2017 and began feeling hot. She sat down for a few minutes, drank some

water, and then returned to work. While folding some shirts, her breathing

became progressively lighter. Ms. McKever used her inhaler, but it brought

2 Wal - Mart considers employees who work at least 34 hours a week to be full - time employees.

A part - time employee works less than 34 hours a week.

3 ÑAmong the substantive rights granted by the [Family and Medical Leave Act] to eligible

employees are the right to Ó 12 workweeks of leave during any 12 - month period . . . [b]ecause

of a serious health condition that makes the employee unable to perform the functions of the

position of such employee,Ô 29 U.S.C. £ 2612(a)(1), and the right following leave Óto be

restored by the employer to the position of employment held by the employee when the leave

commencedÔ or to an equivalent position, 29 U.S.C. £ 2614(a)(1).Ò Drago v. Jenne , 453 F.3d

1301, 1305 (11 th Cir. 2006).

no relief. Ms. McKever was ultimately transported by ambulance to a

hospital where she received treatment and recovered.

5. Ms. McKever returned to work a few days later but suffered another

asthma attack while she was at home. Whe n Ms. McKever returned from a

subsequent FMLA leave, she requested part - time status and explained that

her request was due to her asthmatic condition. 4

6. In support of her request, Ms. McKever completed a form detailing

which days she was available and un available to work. She indicated she was

available to work Monday, Tuesday, Wednesday, and Thursday nights from

10:00 p.m. to 7:00 a.m. the next morning. Ms. McKever noted that she was

unavailable to work on Friday, Saturday, and Sunday nights.

7. The sto re manager approved Ms. McKeverÔs request for part - time

status.

8. Ms. McKever was expecting to work four 8 - hour shifts every week.

However, she began receiving substantially less than 32 hours of work per

week soon after she requested part - time status, and those reduced hours led

to Ms. McKever being unable to pay her bills.

9. During the time relevant to the instant case, Daryl Rieli managed the

store where Ms. McKever worked. That store was open 24 hours a day, seven

days a week and employed approximat ely 350 people. About 40 percent of

those employees were part - time.

10. An automated system was largely responsible for creating work

schedules, and Mr. Rieli described how the system allocates work hours

among the store employees:

Q: Now can you explai n to me how the schedule is Ï

your understanding of how the schedule is

populated? Like, how are the hours scheduled?

4 Ms. McKever treats with a pulmonary specialist who agreed with her decision to seek

reduced work hours.

A: Basically thereÔll be so many hours for each day

of the week, depending on workload, depending on

sales volume, depending on different factors like

that. And thereÔll be, say, 70 hours on Monday. And

thereÔll be 90 hours on Saturday. So the system

pulls people into those schedules by their

availability and by their full time, part time status.

And thatÔs how the schedule will populate.

Q: When you say full time part time schedule Ï

status, can you explain how Ï what your

understanding is of how that works?

A: The fact that the full time associates get placed

first on the schedule. And then part time

[associates] will then fill in the g aps where needed.

11. Mr. Rieli explained that part - time employees willing to work

weekends are more likely to receive their desired number of hours:

Q: Are there certain days of the week that are

busier than others?

A: Yes. Due to the fact that it being retail,

obviously weekends. Evenings and weekends. So,

for overnight shift[s] it would be weekends.

* * *

Q: So there [were] more hours that had to be

worked and more employees would be scheduled to

fill the shifts on Friday night, Saturday night a nd

Sunday night. Am I understanding that correctly.

A: Absolutely.

Q: Okay. So on the flip side of that, in your

experience, do most people actually want to work

on weekend shifts?

A: No. They definitely donÔt.

Q: So does that mean that an associateÔ s more

likely to get scheduled if theyÔre available to work

on the weekends?

A: Absolutely.

12. As this circumstance persisted, Ms. McKever brought her displeasure

to succeeding levels of store management and eventually reached Mr. Rieli in

late Novembe r or early December of 2017 . Mr. Rieli explained to her that

part - time employees are not guaranteed to receive 32 hours of work per week.

He also explained that part - time employees willing to work weekends are

more likely to get their desired number of hou rs:

Q: Can you tell me what you recall about the first

conversation you had with her?

A: Basically she questioned the fact that she wasnÔt

getting the hours, wasnÔt getting her four day

shifts. And I explained to her that Ï that just

because you put you r availability to that doesnÔt

mean youÔre going to get those hours. And that if

she opened up her availability, sheÔs be able to get

the hours. But, with her not able to work the

weekends, [there] most likely werenÔt going to be

the hours there for her to get her hours every week.

Q: Okay, a nd did you explain to her that full time

associatesÔ hours were awarded first?

A: I believe so. Because she asked why she used to

get her hours and she doesnÔt any more.

* * *

Q: Did you explain to her how the sched ules were

generated and that you donÔt have any Ï that youÔre

not the person doing that?

A: Yes, we did. Or yes, I did.

Q: Okay. Did you explain to her that the busiest

days are over the weekend [and] thatÔs why

associates are going to get scheduled more likely on

that time period?

A: Absolutely.

Q: Okay. Did you explain to her that she could be a

part - time associate without limiting the number of

days she was willing to work?

A: Yes.

Q: Okay. And did you suggest to her that if she

wanted to work mor e hours, she should open up

that availability and be Ï and be available to work

more?

A: Absolutely.

13. Ms. McKever asserts that this meeting resulted in her receiving her

desired level of work for the next two to four weeks. However, she soon

resume d receiving substantially less than 32 hours of work per week.

14. Ms. McKever resigned from Wal - Mart in January of 2020 and is now

receiving social security disability benefits.

15. The greater weight of the evidence does not establish that

Ms. McKev er received less than her desired number of work hours because

she requested part - time status. Instead, the greater weight of the evidence

demonstrates that Ms. McKever received less than 32 hours of work per week

primarily because she made herself unavail able to work weekends. Also, the

greater weight of the evidence does not demonstrate that Wal - Mart treated

nondisabled employees more favorably than disabled employees.

C ONCLUSIONS OF L AW

16. DOAH has jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57, Florida Statutes (2020) , 5

and Florida Administrative Code Rule 60Y - 4.016(1).

17. The State of Florida, under the legislative scheme contained in

sections 760.01 through 760.11, Florida Statutes, known as the Florida Civil

Rights Act of 1992 (Ñthe FCRAÒ), incorporates and adopts the legal principles

and precedents established in the federal anti - discrimination laws

specifically set forth under Title VII of the Civil Rights Act of 1964, as

amended. 42 U.S.C. § 2000e, et. seq.

18. Section 760.10 prohibits discrimination Ñagainst any individual with

respect to compensation, terms, conditions, or privileges of employment,

because of such individualÔs race, color, religion, sex, national origin, age,

han dicap, or marital status.Ò £ 760.10(1)(a), Fla. Stat.

19. Florida courts and the Commission have determined that federal

discrimination law should be used as guidance when construing the FCRA.

See Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fl a. 3d DCA

2009); Brand v. Fla. Power Corp. , 633 So. 2d 504, 509 (Fla. 1 st DCA 1994).

20. With regard to the instant case, Ms. McKever has the burden of

proving by a preponderance of the evidence that Wal - Mart committed an

unlawful employment practice. See EEOC v. JoeÔs Stone Crabs, Inc. , 296 F.3d

1265, 1273 (11 th Cir. 2002)(noting that a claimant bears the ultimate burden

of persuading the trier of fact that the employer intentionally discriminated

against the employees); § 120.57(1)(j), Fla. Stat.

21. Ms . McKever alleges that Wal - Mart retaliated against her by not

assigning her 32 hours of work per week once she became part - time, and/or

subjected her to disparate treatment because other part - time employees

5 Unless stated otherwise, all statutory references shall be to the 2020 version of the Florida

Statutes.

received 32 hours of work per week. Each claim wi ll be separately analyzed

below. 6

The Greater Weight of the Evidence Does Not Establish that Wal - Mart

Retaliated Against Ms. McKever or Subjected Her to Disparate Treatment.

22. An employee can establish that she suffered retaliation under the

FCRA by pro ving that: (1) she engaged in an activity protected by the FCRA 7 ;

(2) she suffered an adverse employment action; and that (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); Russell v. KSL Hotel Corp. , 887 So. 2d 372, 379 (Fla.

3d DCA 2004).

6 Wal - Mart argued for the first time in its Proposed Recommended Order that Ms. McKeverÔs

claim was untimely and should thus be dismissed because her complaints to management

about her hours ended in late 2017 and her Complaint of Discrimination was filed on

September 30 , 2019. See £ 760.11(1), Fla. Stat. (providing that Ñ[a]ny person aggrieved by a

violation of ss. 760.01 - 760.10 may file a complaint with [the Commission] within 365 days of

the alleged violation . . .Ò). In support thereof, Wal - Mart asserts that Ms. McKeverÔs Ñtwo

requests to increase her hours are discrete instances of discriminatio n, not a continuing

violation.Ò The undersigned finds that Ms. McKeverÔs claim was timely. The testimony

presented during the final hearing indicated that the hours assigned to Wal - Mart employees

vary weekly based on several different factors assessed by t he automated system.

Accordingly, assigning Ms. McKever less than 32 hours a week was a repeated and

continuing act rather than a one - time decision. See generally Calloway v. Partners NatÔl

Health Plans , 986 F.2d 446, 448 (11th Cir. 1993)(explaining that Ñ [i]n determining whether a

discriminatory employment practice constitutes a continuing violation, this Circuit

distinguishes between Óthe present consequence of a one - time violation, which does not

extend the limitations period, and the continuation of the violation into the present, which

does.ÔÒ).

7 With regard to the first criterion, a protected activity includes requesting a reasonable

accommodation provided that the employee was actually handicapped or had a good faith,

objectively reasona ble belief that she was handicapped. See Tabatchnik v. ContÔl Airlines , 262

Fed. Appx. 674, 677 (5th Cir. 2008)(stating that "[b]ecause Tabatchnik has not shown that he

had a good faith belief that he was disabled or perceived as disabled, his request for an

accommodation cannot be considered protected by the ADA."); Williams v. Philadelphia

Hous. Auth. Police DepÔt , 380 F.3d 751, 759 (3d Cir. 2004)(stating that "[u]nlike a claim for

discrimination under the ADA, an ADA retaliation claim based upon an emplo yee having

requested an accommodation does not require that a plaintiff show that he or she is 'disabled'

within the meaning of the ADA . . . Thus, as opposed to showing disability, a plaintiff need

only show that she had a reasonable, good faith belief th at she was entitled to request the

reasonable accommodation she requested.")(citation omitted).

23. In order to establish a prima facie case for discrimination based on

disparate treatment, Petitioner must show that (a) she belongs to a protected

class; (b) she was subject ed to an adverse employment action; (c) her

employer treated similarly - situated employees outside her protected class

more favorably; and (d) she was qualified to do the job. See Holifield v. Reno ,

115 F.3d 1555, 1562 (11th Cir. 1997).

24. There appears to be no dispute that Ms. McKever engaged in a

protected activity by requesting part - time status and that she belongs to a

protected class due to her asthma. Even if it were assumed that her assigned

hours amounted to an adverse em ployment action, the greater weight of the

evidence does not establish that: (a) there was a causal connection between

her request for part - time status and the number of hours she was assigned;

or that (b) Wal - Mart treated nondisabled employees more favora bly. Instead,

the greater weight of the evidence demonstrated that Ms. McKeverÔs

unavailability for weekend work was the primary reason she was not being

assigned 32 hours of work per week .

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order dismissing Vanessa McKeverÔs Petition for Relief from an

unlawful employment practice.

D ONE A ND E NTERED this 8 th day of June, 2021 , in Tallahassee, Leon

County, Florida.

S

G. W. C HISENHALL

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

this 8 th day of June, 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Vanessa Yvette McKever

Florida Commission on Human Relations 9268 Hawkeye Drive

Room 110 Jacksonville, Florida 32221

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020 Nicole B. Dunlap, Esquire

Littler Mendelson, PC

Julie Wilson, Esquire 111 North Orange Avenue

Wal - Mart Stores East, LP Orlando, Florida 32 801

8th Floor

2301 McGee Street Cheyanne Costilla, General Counsel

Kansas City, Missouri 64108 Florida Commission on Human Relations

Room 110

Kimberly Doud, Esquire 4075 Esplanade Way

Littler Mendelson Tallahassee, Florida 32399 - 7020

Suite 1750

111 North Orange Avenue

Orlando, Florida 32801

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

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

case.