vs.
Respondent.
) Case No. 05-3665
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, by video teleconference on February 20, 2006, with sites in Miami and in Tallahassee, Florida, and in person on March 10, 2006, in Miami, Florida.
For Petitioner: Rima C. Bardawil, Esquire
Law Office of Rima C. Bardawil, P.A. 18520 Northwest 67th Avenue, No. 207
For Respondent: Julie R. Waas, Esquire
Scott S. Allen, Esquire Jackson, Lewis, LLP
The issue presented is whether Respondent committed an unfair employment practice by terminating Petitioner's
employment based upon Petitioner's race, age, sex, ethnicity, disability, or national origin, and, if so, what relief should be afforded to Petitioner.
On March 7, 2005, Petitioner filed with the Florida Commission on Human Relations an employment charge of discrimination, alleging that Respondent had discriminated against her due to her race, age, sex, ethnicity, disability, and/or national origin. On September 2, 2005, the Commission issued its Notice of Determination: No Cause, finding that there is no reasonable cause to believe that an unlawful employment practice occurred. In response to that No Cause Determination, on October 4, 2005, Petitioner filed with the Commission her Petition for Relief. On October 6, 2005, the Commission forwarded the Petition for Relief to the Division of Administrative Hearings to conduct the evidentiary proceeding.
At the final hearing, Petitioner Rossy Gamarra-Barco testified on her own behalf and presented the testimony of Zenaida Perdomo-Leyva. Respondent Sears, Roebuck and Company presented the testimony of Zenaida Perdomo-Leyva, Michael James, and Maritza Perez. Additionally, Petitioner's Exhibit numbered
3 and Respondent's Exhibits lettered A, B, D, E, E1, and F through K were admitted in evidence.
Although both parties were afforded the opportunity to file proposed recommended orders, only the Respondent did so. That document has been considered in the entry of this Recommended Order.
Petitioner Rossy Gamarra-Barco, a female of Peruvian national origin whose primary language is Spanish, began her employment with Respondent Sears, Roebuck and Company in November 1992. She was 52 years of age when she was hired to work in the Sears store located in Westland Mall in Hialeah.
Sears is a large retailer. Its stores sell a full assortment of appliances, electronics, home improvement products, apparel, jewelry, and furniture.
Over 50 percent of the employees at the Sears Hialeah store are female, and over 80 percent are Hispanic. Sears actively recruits retirees to work in its retail stores, and several employees at the Hialeah store are over the age of 60. One female employee is in her 80s.
Sears' fair employment policies prohibit harassment and discrimination against any applicant for employment, associate, vendor, contractor or customer on the basis of race, color, religion, gender, national origin, age, disability, veteran status, pregnancy, citizenship, sexual orientation, marital status, ethnicity, or any other reason prohibited by law. The
policies also prohibit retaliation against an individual for complaining about harassing or discriminatory conduct or participating in an investigation of such complaints.
Sears informs its employees of its fair employment policies in a variety of ways. Sears posts a poster written in English and Spanish in the employee lunchroom. The poster features a toll-free number for reporting harassment or discrimination issues. The poster also contains a pocket in which are detailed, corresponding pamphlets entitled "Harassment and Discrimination in the Workplace." The pamphlet is written in English and Spanish and advises employees who believe they are being harassed or discriminated against to report the behavior to their immediate supervisor or a manager, and that if they fail to receive a satisfactory response, to report the behavior to that person's supervisor or manager or to the human resources department. The pamphlet further advises that if the employee is not comfortable complaining to any of those persons or does not receive a satisfactory response, to call the toll- free number.
Petitioner used the employee lunchroom frequently and was aware of the poster. A similar poster was posted in the human resources department which Petitioner also frequented. The posters existed throughout the twelve years Petitioner was employed at the Sears Hialeah store.
Sears' employees are also provided with an employee handbook which sets forth the Sears workplace policies, including Sears' policy prohibiting harassment and discrimination in the workplace and the Sears policy prohibiting workplace violence. Petitioner received the handbook when she was hired. She was familiar with the policies contained in the handbook and with the procedures for reporting harassment or discrimination in the workplace.
Although Petitioner testified inconsistently that she complained 3 or 4 times about the behavior of a co-worker Perfecto Blanco either to her supervisor or to his without any resolution, Petitioner admits she never complained to anyone higher up in management at the Hialeah store because she did not like to complain. Further, she admits she never complained about any type of harassment or discrimination to the human resources department and never used the toll-free number to complain.
Sears also has a Workplace Violence policy with a goal of establishing and maintaining a totally-safe workplace. The anti-violence policy prohibits, inter alia, starting or participating in a physical or verbal fight, punching, and slapping. The policy provides that an employee violating the policy will be disciplined up to and including termination without prior warning.
During the course of her employment with Sears, Petitioner had medical conditions which required accommodation by Sears. Sears did accommodate her by providing her with a sit-down job and a wheelchair to get around the store. Sears also accommodated Petitioner's work schedule so she could take time off for doctors' appointments and physical therapy.
Sears calls its employees "associates."
On March 5, 2004, Petitioner was working at her sit- down job as a loss prevention associate. She sat on a stool provided by Sears and was responsible for checking merchandise at the door, after customers had retrieved their merchandise from the merchandise pick-up area.
On that date Petitioner and Perfecto Blanco, a Hispanic male employed by Sears as a package pick-up associate, became engaged in a confrontation seemingly over who handed the customer the receipt. Blanco yelled at Petitioner not to criticize him in front of a customer. Petitioner walked out of the store, with Blanco following her. She then walked back inside, and he followed her still yelling at her. She turned and slapped his face. He grabbed her wrists and held them to keep her from slapping him again. Guillermo Almaguer, another associate, separated them.
Later that day Blanco reported the incident to Maritza Perez, another loss prevention associate, who reported
it to Zenaida Perdomo-Leyva in the human resources department. Perdomo-Leyva instructed Perez to interview Petitioner, Blanco, and any witnesses and to obtain their statements.
On that same date, Perez interviewed Petitioner who admitted that she had slapped Blanco on the right side of his face for "disrespecting" her. Blanco told Perez the same story, admitting that he yelled at Petitioner. When Petitioner wrote her statement, she changed her story, omitting the part where she struck Blanco, but asserting that "he got me out of control." Blanco's written statement given to Perez was consistent with his oral statement.
Perez forwarded the statements she took to
Zenaida Perdomo-Leyva in the human resources department. On March 8, 2004, Perdomo-Leyva interviewed Perez, Petitioner, Blanco, and witness Almaguer. She also obtained a written statement from each of them.
By the time statements were taken by the human resources department, Petitioner had further refined her story. This time she stated that she "wanted to cover his mouth and he confused it with a slap." However, witness Almaguer's statement confirmed that Petitioner hit Blanco in the face. By the time of the final hearing, Petitioner's version of the incident was that she merely raised her hand to signal Blanco to be quiet.
In accordance with Sears' standard procedures, Perdomo-Leyva translated the statements that were written in Spanish into English and forwarded her investigative file to Sears' Associates Service Center in Atlanta for review by the consultant there who would make disciplinary recommendations to the Hialeah store's general manager Michael James. James, who was in his mid-50s at the time, also reviewed the investigative file and, after consulting with the consultant at the Associates Service Center, made the final decision regarding the disciplinary action to be taken against Petitioner and against Blanco.
Based upon the information obtained in the investigation, James determined that Petitioner had violated Sears' workplace violence policy by slapping Blanco in the face. Because Sears has a "zero tolerance" policy regarding physical violence, James concluded that Petitioner's employment with Sears must be terminated. He also determined from the investigative file that Blanco was acting in self-defense when he grabbed Petitioner's hands but had violated the policy by yelling at Petitioner. He concluded that Blanco should receive a final written warning for the verbal altercation with Petitioner.
James' decisions as to the different disciplinary actions to be taken against Petitioner and Blanco were
consistent with prior and subsequent decisions. Prior to Petitioner, he had terminated a Hispanic male associate for shoving another associate into a wall and had given the other associate a warning. Subsequent to Petitioner, he has fired a manager for hitting an employee but did not fire the employee. Similarly, he has never terminated an employee for yelling at another employee or for engaging in verbal abuse.
On March 12, 2004, Petitioner was terminated from Sears for violating Sears' anti-violence policy. Blanco was given a final written warning.
At the time James terminated Petitioner's employment, he was not aware that she was from Peru. Further, he was not familiar with the word "indio." Similarly, Perdomo-Leyva who conducted the investigation on behalf of Sears and who translated the statements she obtained from Spanish to English did not know Petitioner was Peruvian rather than Cuban like Perdomo-Leyva.
At the time James terminated Petitioner's employment, he was not aware that she had Parkinson's disease or rheumatoid arthritis.
Prior to her termination, Petitioner never complained to anyone that she was being harassed or discriminated against due to her sex or any disability.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569, 120.57(1), and 760(11)(6), Fla. Stat.
Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race, sex, national origin, age, or handicap. Petitioner asserts that she was discriminated against by Sears when she was terminated for these reasons. Petitioner has failed to prove her allegations.
Petitioner bears the burden of proof established by the Supreme Court of the United States in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and in Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248 (1981). Under this well- established case law, Petitioner bears the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination. If a prima facie case is established, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. The employee then has the burden of showing that the business reason is pretextual and that a discriminatory reason more likely than not motivated the decision.
In order to establish a prima facie case, Petitioner must prove that (1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) she was treated less favorably than similarly-situated employees who were not members of her protected class. Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997). Petitioner has failed to establish a prima facie case of discrimination by failing to prove the fourth element of the analysis as to any of her allegations.
At the outset of the analysis, it is important to note Petitioner's lack of credibility due to her inconsistent and sometimes contradictory testimony and the lack of support for her allegations by her failure to offer competent evidence. Her lack of competent, credible evidence has prevented her from establishing even a prima facie case as to any basis for the alleged discriminatory action by Sears.
As to Petitioner's claim that she was treated unfairly due to her age, she has offered no evidence in support of that allegation. To the contrary, the evidence establishes that when Petitioner was hired by Sears, she was in her 50s, well into the protected class. When the store's general manager made the decision to terminate her employment, he was also in his 50s. Moreover, the evidence shows that Sears actively recruits older employees and had several employees older than Petitioner
working at the Hialeah store. Petitioner's age was simply not a factor in the termination decision.
As to Petitioner's claim that she was treated unfairly due to her sex, she has offered no evidence in support of that allegation. Her unsupported allegation that Messrs. Blanco and Hernandez are homosexuals and that, because of their supposed sexual orientation, Blanco was given preferential treatment, does not prove sex discrimination. Even if it did, neither of those gentlemen was the decision-maker regarding her termination and neither had input into the decision. Further, the evidence is uncontroverted that over 50 percent of the employees at the Sears Hialeah store were female.
As to Petitioner's claim that she was treated unfairly due to her handicap/disability, she has offered no evidence in support of that allegation. Rather, the evidence is uncontroverted that Sears accommodated Petitioner throughout her employment by adhering to her physicians' restrictions, giving her a position where she could sit down, providing her with a wheelchair to use at work, and adjusting her schedule so that she could attend doctors' appointments. The only evidence offered by Petitioner that she was not fully-accommodated as to any of her requests is her testimony that she could no longer drive at night and requested that her schedule be changed to the dayshift but that that request was refused. This testimony
makes no sense in view of her conflicting testimony that she worked Monday through Friday from 6:00 a.m. until 2:00 p.m.
As to Petitioner's claim that she was treated unfairly due to her race/national origin/ethnicity, she has offered no evidence in support of that allegation. Petitioner offered no evidence that Sears treated similarly-situated non-Hispanic or non-Peruvian employees more favorably. The evidence is uncontroverted that over 80 percent of the employees at the Hialeah store were Hispanic. Further, neither Perdomo-Leyva nor James knew that Petitioner was Peruvian when Perdomo-Leyva conducted the investigation regarding Petitioner's altercation with Blanco or when James made the decision to terminate her employment. Furthermore, the evidence established that James has terminated other Hispanic employees for violating Sears' anti-violence workplace policy.
Petitioner has failed to establish a hostile work environment claim to the extent she is asserting one. To establish a hostile work environment, the harassment must be sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive environment. Petitioner asserts that Blanco called her "india," "indio," "old lady," "shitty lady," and/or "shitty old lady." She further testified that india or indio is an insult depending upon how it is said. No evidence was offered as to the context
in which these words are alleged to have been said, when, or how many times.
Petitioner testified during her case-in-chief that she reported this language to Harold Gomez and Rudy Hernandez and testified during rebuttal only that she reported this language to Rudy Hernandez. She allegedly reported this to Hernandez 3 or 4 times. She testified that when the situation did not change, she made the decision not to report it to anyone higher up, to human resources, or the toll-free number. Even if these parts of Petitioner's testimony are taken as true, the lack of evidence as to context and time prevents a finding that the alleged behavior continued after proper reporting procedures were followed. Moreover, the evidence is insufficient to show any alleged incident was sufficiently severe or pervasive to create a hostile work environment.
Assuming arguendo that Petitioner has established a prima facie case as to any of her alleged bases of discrimination, which she has not, her claims still fail because Sears has articulated a legitimate, non-discriminatory reason for its actions, and Petitioner has failed to meet her burden of showing that the reason Sears gave is a pretext for discrimination. The evidence is convincing that Petitioner violated Sears' anti-violence policy by striking another
employee and that Sears consistently terminates any employee for such conduct.
An employer may terminate an employee for a good reason, for a bad reason, for a reason based upon erroneous information, or for no reason at all, as long as the termination was not based upon a discriminatory reason. See Dept. of
Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991), and the cases cited therein. Sears has articulated a good reason for Petitioner's termination, and Petitioner has not shown by any direct evidence, statistical evidence, or even circumstantial evidence, that the reason was discriminatory.
Even if events happened as Petitioner claims they did, the Hialeah store's general manager, who made the decision to terminate Petitioner's employment, was entitled to make his decision based upon the statements given to him. He concluded, based upon the information gathered during the investigation, that Petitioner violated Sears' anti-violence policy by slapping another employee in the face. Relying upon that information, he made the decision to terminate Petitioner and issue a final written warning to Blanco for his part in the altercation. The decision had nothing to do with Petitioner's age, sex, disability, race, and/or ethnicity/national origin.
RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the Petition for Relief filed in this cause.
DONE AND ENTERED this 21st day of July, 2006, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2006.
Rima C. Bardawil, Esquire
Law Office of Rima C. Bardawil, P.A. 18520 Northwest 67th Avenue, No. 207
Julie R. Waas, Esquire Scott S. Allen, Esquire Jackson, Lewis, LLP
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
