STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY J. DAVIS-GAVIN,

Petitioner,

vs.

WAL-MART STORES, INC.,

Respondent.

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) Case No. 01-2204

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings held a formal hearing in this cause before Administrative Law Judge Don W. Davis in Tallahassee, Florida, on August 29, 2001.

APPEARANCES

For Petitioner: Betty J. Davis-Gavin, pro se

12573 Forest Run Drive Tallahassee, Florida 32311

For Respondent: John A. Unzicker, Jr., Esquire

Vernis & Bowling of Northwest Florida, P.A.

635 West Garden Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was subjected to a hostile work environment and subsequent termination of employment due to Petitioner's race in violation of Section 760.10(1), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Complaint against Respondent with the Florida Commission on Human Relations (FCHR) on May 19, 1997, alleging that she had been suspended from employment and eventually terminated from that employment by Respondent on the basis of Petitioner's race.

On April 27, 2001, FCHR issued its Determination: No Cause. On May 31, 2001, Petitioner filed a Petition for Relief with FCHR.

Subsequently, on or about June 1, 2001, the case was forwarded to the Division of Administrative Hearings for formal proceedings.

During the final hearing, Petitioner presented the testimony of three witnesses, including herself, and one exhibit.

Respondent presented the testimony of two witnesses and three exhibits. No transcript of the proceedings was provided.

Respondent filed a Proposed Recommended Order on September 5, 2001, which has been reviewed in the course of preparation of this Recommended Order. Petitioner did not file a proposed recommended order within the prescribed 10-day period following the final hearing and no proposed recommended order has been received on her behalf.

FINDINGS OF FACT

1. Respondent employed Petitioner in 1988. Petitioner received regular pay raises and promotions during the course of

   her employment with Respondent. On May 14, 1997, Petitioner was called to the manager's office from her work as a department manager and "back-up" customer service manager in Respondent's store located at 1212 Capital Circle, Southwest, in Tallahassee, Florida.

2. Upon arrival in the manager's office, Petitioner was questioned regarding her involvement in an incident where another associate employed by Respondent in the store had been observed and apprehended placing store merchandise in the associate's automobile which had not been paid for in the store. Upon confrontation, the associate allegedly implicated Petitioner and several other black employees in similar activities. When confronted with these allegations, Petitioner denied any involvement in any scheme where merchandise was being removed from Respondent's store without payment for the merchandise. Petitioner was sent back to her work station following this meeting. Shortly thereafter, Petitioner and other accused black employees were suspended from employment. Petitioner was admonished to cooperate with local police in the course of their investigation. Petitioner promised her cooperation.

3. On May 22, 1997, Respondent's representatives contacted the Tallahassee Police Department to report employee theft and an investigation ensued. Petitioner was never arrested and

   never questioned by law enforcement officials prior to being contacted again by Respondent's representative in June of 1997 and asked to come into the store. Upon arrival at the store, Petitioner's employment was terminated by Respondent's representative on the basis that police investigators had been unable to contact Petitioner and, therefore, she had not been cooperative with law enforcement authorities.

4. During or close to the time of Petitioner's job termination, Respondent's management at the Tallahassee store was concerned that the ratio of black employees to white employees was disproportionate in that too many blacks were employed compared to white employees. When the personnel manager in Respondent's personnel office presented the names of candidates to store managers for employment, she would be questioned as to the race of the potential employees and told that the number of black employees needed to be reduced. The personnel manager had no knowledge personal to Petitioner's situation. The personnel manager later transferred to another store and, subsequently, resigned from employment with Respondent.

5. Petitioner, a black female and member of a protected class, presented no evidence at the final hearing that she was replaced by a non-black employee or other member of an

   unprotected class. Additionally, no evidence was presented that white employees were treated differently in similar situations.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

7. Chapter 760, Florida Statutes, the "Florida Civil Rights Act of 1992," provides security from discrimination based upon race, color, religion, sex, national origin, age, handicap, or marital status.

8. The adverse effectuation of an employee’s compensation, conditions, and privileges of employment on the basis of race or sex is an unlawful employment practice.

9. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for the adverse action. If Respondent is successful and provides such a reason, the burden shifts again to Petitioner to show that the proffered reason for adverse action is pretextual. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

10. The Supreme Court of the United States has recognized that direct evidence of discrimination is extremely rare. As a consequence, the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), articulated a method by which

    complainants, such as Petitioner in this case, might establish a rebuttable presumption of discrimination. That method requires that Petitioner show (a) that she is a member of a protected class; (b) that she has been subjected to adverse employment action; (c) that she was treated differently than employees not a member of the protected class; and (d) that there is evidence of a causal connection between Petitioner's protected status and her disparate treatment.

11. While showing that Respondent has evidenced a concern that an excessive ratio of black to white employees was unwanted, Petitioner has failed to offer credible evidence that her specific termination was based on her race. While Respondent has evidenced racist preferences in employment, Petitioner has failed to show that such racism was personal to her termination. There has been no proof that Petitioner was replaced with a white employee not a member of the protected class, or that Petitioner was treated differently from white employees in similar situations.

12. It is concluded that Petitioner has not shown that Respondent's termination of her employment for failure to cooperate with the authorities was a pretext to the exercise of racism and employment discrimination.

RECOMMENDATIONS

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

RECOMMENDED:

That a Final Order be entered dismissing the Petition for Relief.

DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2001.

COPIES FURNISHED:

Betty J. Davis-Gavin 12573 Forest Run Drive

Tallahassee, Florida 32311

Azizi M. Dixon, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

J. Todd Lewis, Esquire Wal-Mart Legal Team

702 Southwest Eighth Street Bentonville, Arizona 72716

John A. Unzicker, Jr., Esquire Vernis & Bowling of Northwest

Florida, P.A.

635 West Garden Street Pensacola, Florida 32501

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-002204

Orders for Case No: 01-002204