STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONSTANZA D. SCOTT, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0318

) WAL-MART STORES, INC., d/b/a ) SAM'S CLUB, )

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on September 9, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Constanza D. Scott, pro se

3250 West Tennessee Street, Lot 146

Tallahassee, Florida 32304

For Respondent: Charles F. Henley, Jr., Esquire

Post Office Box 40593 Jacksonville, Florida 32203-0593

STATEMENT OF THE ISSUE

Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.

PRELIMINARY STATEMENT

This cause arose in January 1992 when petitioner, Constanza D. Scott, filed a charge of discrimination with the Florida Commission on Human Relations (Commission) alleging that respondent, Wal-Mart Stores, Inc., d/b/a Sam's Club, had violated Section 760.10, Florida Statutes, by unlawfully terminating her employment because of race. After the Commission conducted a preliminary investigation, its executive director issued a Notice of Determination: No Cause on November 20, 1992. Petitioner then filed her petition for relief on December 23, 1992. The matter was referred by the Commission to the Division of Administrative Hearings on January 21, 1993, with a request that hearing officer be assigned to conduct a formal hearing. By notice of hearing dated February 26, 1993, a final hearing was scheduled on April 2, 1993, in Tallahassee, Florida. At respondent's request, the matter was subsequently rescheduled to April 19, 1993, at the same location. Thereafter, petitioner's request to reschedule the case was granted, and the matter was heard on September 9, 1993.

At final hearing, petitioner testified on her own behalf. Respondent presented the testimony of Rhonda Baker, store general manager, and Tim Strahan, Jr., a former assistant store manager. Also, it offered respondent's exhibits

1-9. All exhibits were received in evidence.

The transcript of hearing was filed on September 29, 1993. Proposed findings of fact and conclusions of law were filed by the parties on October 19, 1993. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the entire record, the following findings of fact are determined:

1. Petitioner, Constanza D. Scott, is a black female. She began employment with respondent, Wal-Mart Stores, Inc., d/b/a Sam's Club (Wal-Mart), on July 29, 1988, in its soft lines (men and women's apparel) department. The store is located in Tallahassee, Florida. She was a full-time employee and worked forty hours per week.

   
   

2. Besides working full-time for Wal-Mart, beginning in August 1991 she worked "at least" twenty hours per week for Marriott Food Services at Florida State University, and she attended classes at an undisclosed Tallahassee college or university on Tuesdays and Thursdays from 1:30 p. m. until around 4:30 p. m.

   
   

3. Petitioner's regular hours at Wal-Mart were from 5:00 a. m. to 1:00 p. m., Monday through Friday. From at least May 1991 until October 1991, her supervisor was Scott Cosby, an assistant store manager for the merchandising department. Cosby was replaced in October 1991 by Tim Strahan, Jr., who supervised petitioner until her termination on December 21, 1991.

   
   

4. Wal-Mart refers to its procedure for handling disciplinary problems as performance coaching, and it involves a series of progressively sterner disciplinary measures taken against an employee. On the first occasion disciplinary action is warranted, the employee is given what is called verbal counseling. This type of action is not documented in writing and simply involves counseling by an employee's supervisor. If the problem persists, the employee is given a verbal warning, which is reduced to writing and placed in the personnel file of the employee. If a verbal warning does not result in the correction of the deficiencies, a written warning is issued, and the employee is required to prepare a responsive plan of action stating how the employee intends to correct the cited deficiencies. As a last resort, the employee is given a day off with pay, which is called a decision-making day, so that the employee can reflect on his or her performance and prepare a plan of action detailing how the deficiencies will be corrected. Thereafter, an employee is automatically terminated if further disciplinary action is required.

   
   

5. On May 1, 1991, petitioner's supervisor (Scott Cosby) gave her a verbal counseling for "attendance problems." In response to this counseling, petitioner stated that she was very tired from school but would improve her attendance. On May 6, 1991, she was again cited for an "ongoing attendance problem." This is memorialized by a written verbal warning contained in her personnel file. On September 21, 1991, a second verbal warning was given by Cosby, this time for petitioner working overtime when Cosby apparently felt she could complete her work within the normal forty-hour week. Petitioner explained, however, that all overtime had been approved by the store manager.

   On October 7, 1991, Cosby again gave her a verbal warning for "not keeping up with 'basics of the business' consistently." In her action plan filed in response to this criticism, petitioner stated she would "do a better job of signing, cleaning, displaying, zoning and shrink wrapping," all specific duties of her job.

   
   

6. During the week of November 11-15, 1991, petitioner was late to work every day. On one of those days, November 14, 1991, she telephoned an assistant store manager (Don Graves) and reported that her car would not start. She eventually came to work around 4:00 p. m. that afternoon. For her lack of punctuality, a written reminder was issued, which is the last step before decision-making day.

   
   

7. On November 27, 1991, petitioner telephoned her team leader, Jennifer Christie, at 5:40 a. m. to say that her alarm clock had failed to go off and she would be late. Deciding not to accept any more excuses regarding her attendance and punctuality, Strahan, her supervisor since October, gave petitioner the day off with pay so that she could contemplate her future with the store. When she returned the next day, Wal-Mart agreed to accept petitioner's suggestion that her work hours be changed on Mondays, Wednesdays, and Fridays to 7:00 a. m. to 2:00 p. m., and on Tuesdays and Thursdays to 7:00 a. m. to 12 noon. This was done in order to accommodate her other work and school activities.

   
   

8. The number of store employees at any one time is governed by the store sales. In other words, payroll (staffing) cannot exceed a percentage of current sales. In order to stay within the required percentage, a specified number of hours are allocated to each department within the store, and the department assistant manager determines how many employees can be employed within the allocated hours. When sales drop, workers are laid off, and when sales pick up again, Wal-Mart increases its work force. In December 1991, Wal-Mart was faced with a reduction in force due to declining sales. On a storewide basis, six part-time and three full-time positions were eliminated. In the soft lines department, which had four full-time and three part-time employees, a decision was made to eliminate one part-time and one full-time position in order to stay within the department's allocated hours. Strahan was charged with the responsibility of selecting the positions to be eliminated. In doing so, he was able to transfer Joyce Willis, a part-time black female employee, to the "front" since she had experience in operating a cash register. Of the four full-time employees, Jennifer Christie, the team leader and a white female, and Armie Brown, a black female, had seniority over petitioner, and neither had attendance or punctuality problems. In addition, Strahan considered both of them to be more "dependable" than petitioner. The third employee, Joe Watson, a white male, was an experienced fork lift driver for the store, and Strahan desired to retain him in that position. Although petitioner had been given some training in the operation of a fork lift, unlike Watson she had no actual on-the-job experience in that position. The only remaining full-time position was filled by petitioner, who had less flexibility in her work hours than the others due to requirements of school and her second job, and unlike the others, she had a record of disciplinary action during the preceding seven months for attendance and punctuality problems. For these reasons, Strahan selected petitioner's position as the full-time slot to be eliminated.

   
   

9. Petitioner was called to a meeting with Strahan and the team leader on December 21, 1991. At that meeting Strahan told petitioner that he was forced to eliminate her full-time position due to a reduction in force caused by declining sales. Petitioner asked "why me?" and if there were any other full- time slots in the store to which she could be transferred. When Strahan replied

   there were none, petitioner said "you're full of shit, fuck you," and walked out of the office. Had she not departed, Strahan was about to offer her a part-time position. Because petitioner left the store, however, Strahan had no choice except to terminate her employment. According to petitioner's Associate Exit Interview form, which is prepared whenever a position is eliminated or an employee leaves, petitioner remains eligible for re-employment "when vacancies occur which the store needs to fill." She was unaware of this, however, and has never made application to be rehired. This is probably because she left the store before Strahan had an opportunity to have her sign the form and give her a copy. There is no evidence that petitioner's position was ever reestablished, and if so, whether it was filled by a person outside petitioner's protected class.

   
   

10. Petitioner alleges that her position was eliminated solely because of her race. The evidence, however, belies that contention. Accordingly, it is found that petitioner's race played no role in the employment decision taken by respondent. Petitioner also contended she was a hard worker who did her assigned tasks, and she did not deserve the criticisms noted in her personnel file. For example, a minute or two after 5:00 a.m. the front door was locked and any late employees were then required to go to the back door of the store to gain entry to the premises. This added another ten or fifteen minutes for petitioner to reach her work station. Petitioner says this made it appear that she was fifteen or twenty minutes late when in fact she had been tardy by only a minute or two. Even so, by her own admission she was late on "numerous occasions," including every day during the week of November 11, 1991. She also complained that she did not get along with Cosby, a former supervisor, and denied that he twice counseled her for poor attendance in May 1991, as reflected in her personnel file. Even if petitioner's assertion is true, however, that employee left Wal-Mart in October 1991, which was before many of the relevant events occurred. While petitioner is to be highly commended for her work ethic (at least sixty hours per week plus school), the pertinent criticisms in her personnel file were substantiated and were properly taken into account by respondent in making its employment decision.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

12. Subsection 760.10(1)(a), Florida Statutes, which governs this controversy, provides in pertinent part:

    
    

    1. It is an unlawful employment practice for an employer:

       1. To discharge...any individual...because of such individuals's...race...

          
          

          The petition for relief alleges that Wal-Mart violated this statute by unlawfully terminating petitioner's position by reason of her race.

          
          

13. In order to make out a prima facie case of race discrimination in a discharge case such as this, petitioner must show that (a) she is a member of a racial minority (protected class), (b) she was qualified for her position, (c) an adverse employment decision was taken against her, and (d) the employer treated her differently from persons with equal or lesser qualifications not in the protected class, or she was replaced by someone outside the protected class.

    See, e. g., Johnson v. General Parcel Service of Florida, Inc., 14 F.A.L.R. 561,

    562 (FCHR, August 30, 1991); Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982). Once petitioner establishes a prima facie case of discrimination, respondent has the responsibility of articulating a legitimate, nondiscriminatory reason for its actions. Assuming that burden of production is satisfied, petitioner may still prevail by proving that respondent's justification was pretextual.

    
    

14. Petitioner has failed to establish a prima facie case. While she proved that she is a member of a protected class, she was qualified for the position she held in the soft lines department, and an adverse employment decision was taken against her, there is no evidence that persons outside the protected class with equal or lesser qualifications were not discharged or that she was replaced by someone outside the protected class. This conclusion is based on the established facts that only three other full-time employees were subject to possible elimination of their positions and two of them, including a black female, had more seniority and no adverse disciplinary action on their records. The third, a white male, was a fork lift driver, and petitioner had no experience working in that position.

    
    

15. Assuming arguendo that petitioner proved a prima facie case, respondent has given a legitimate, nondiscriminatory reason for its employment decision, that being a necessary reduction in work force due to a decline in sales. As noted in finding of fact 10, the selection of petitioner's position for elimination was not tainted by discriminatory animus. In response to this showing, petitioner failed to prove that respondent's justification was pretextual. Therefore, the petition for relief should be denied.

    
    

16. Finally, the undersigned has considered petitioner's contention that a pattern of discrimination existed throughout all Wal-Mart stores so as to require a conclusion that she was also the victim of discrimination. This theory was premised on the notion that a former manager of the store, who predated any of the relevant facts in this case, was terminated by Wal-Mart for discriminatory actions and was later hired by Wal-Mart at a different store. Even if these proffered facts are true, they are not deemed to be probative of the primary issue of whether petitioner's position was eliminated because of her race.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition

for relief.

DONE AND ENTERED this 28th day of October, 1993, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0318

Respondent:

1. Partially accepted in finding of fact 1.

2. Rejected as being unnecessary.

3. Partially accepted in finding of fact 8.

4-5. Partially accepted in finding of fact 4.

1. Partially accepted in findings of fact 5 and 6.

2. Partially accepted in finding of fact 7.

3. Partially accepted in finding of fact 3.

9-11. Partially accepted in finding of fact 8. 12-16. Partially accepted in finding of fact 9. 17-19. Partially accepted in finding of fact 10. 20-21. Rejected as being unnecessary.

22. Covered in preliminary statement.

Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana C. Baird, Esquire

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Constanza D. Scott

3250 West Tennessee Street, Lot 146

Tallahassee, Florida 32304

Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 93-000318

Orders for Case No: 93-000318