vs.
Respondent.
) Case No. 07-1255
Pursuant to notice this matter came on for formal administrative proceeding and hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted July 25, 2007, in Pensacola, Florida. The appearances were as follows:
2103 Haynes Street, Apt. C Pensacola, Florida 30326
Respondent: Cathy M. Stutin, Esquire
450 East Las Olas Boulevard, Suite 800 Ft. Lauderdale, Florida 33301
Whether the Petitioner has been subjected to employment discrimination by termination, allegedly based upon race, and by retaliation, for filing a charge of discrimination.
This cause arose when the Petitioner, Latarsha Myles, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) against the Respondent, Tom Thumb Food Stores, Inc. The Petitioner alleges that she was discriminated against by being terminated from her employment with the Respondent based upon her race (African-American). The Petitioner has also filed a second charge alleging discrimination based upon retaliation for filing her original charge of discrimination.
The FCHR issued No Cause Determinations as to both charges on March 2, 2007.
The Petitioner elected to proceed with her right to a formal proceeding after entry of the No Cause Determinations by the FCHR. Accordingly, in due course, the matters were transferred to the Division of Administrative Hearings and the undersigned Administrative Law Judge. The Petitioner were filed as two cases, with the above case number, but tried jointly.
Both are resolved with this Recommended Order.
The cause came on for hearing as noticed on July 25, 2007.
The Petitioner presented her own testimony and two exhibits, which were accepted into evidence as corroborative hearsay only. The Respondent presented the testimony of Robert Birks, its training manager; Jamie Galloway, its district adviser; Pat Merritt, a store manager; and Mark Slater, a regional manager.
The Respondent had 30 exhibits admitted into evidence.
Upon conclusion of the proceeding a transcript thereof was ordered. The parties requested an extended briefing schedule and one extension of that was granted upon motion by the Respondent. Proposed Recommended Orders have been timely submitted and have been considered in the rendition of this
Recommended Order.
On or about November 29, 2005, the Petitioner applied for a job as a part-time sales clerk with the Respondent. The Petitioner indicated that she was available to work on Sundays, Mondays, and Wednesdays from 7:00 a.m. to 5:00 p.m. This was because she was already employed in another job. During the course of the hiring and orientation process, the Petitioner learned of the policies of the Respondent against harassment and discrimination of all types. She was instructed in those policies and acknowledged receipt of them.
The Petitioner began her employment with the Respondent on December 27, 2005, as a part-time sales clerk at a convenience store (No. 31) in Milton, Florida. When she began her employment, the Store Manager was Bob Kukuk. The Assistant Managers for that store were Michael Morris and "Cynthia."
There were also two other sales clerks, Cherie Dorey and Lugenia Word. Both Ms. Dorey and Ms. Word are white. Soon after the
Petitioner was hired, Mr. Kukuk announced his resignation as store manager.
On January 31, 2006, the Petitioner attended the new employee training session in Milton, Florida, which included training in the equal employment and non-harassment policies of the Respondent. During the question and answer session, concerning the harassment and discrimination portion of the training, the Petitioner told Training Manager, Robert Birks that she had a problem at her store involving a conflict with another employee. She felt that she was being required to do things that other employees were not required to do. Mr. Birks advised Ms. Myles that she should provide a written statement concerning her complaints to her supervisor and he provided her with pen, paper, and envelope to do so on the spot. The Petitioner wrote out a note and returned it to Mr. Birks in a sealed envelope and he gave the envelope to the District Advisor, Jamie Galloway on that same date.
After reading the Petitioner's note, Ms. Galloway met with Petitioner on that same day to discuss her complaints. The Petitioner informed Ms. Galloway that Michael Morris, an Assistant Manager at her store, was telling employees that he was going to be the new store manager. The Petitioner told
Ms. Galloway that she felt Morris did not like her because of her race. Ms. Galloway informed the Petitioner that, in fact,
Morris would not be selected as store manager for store No. 31 and that Mr. Kukuk would be replaced with someone else other than Morris. She also informed the Petitioner that the Respondent had a zero tolerance for harassment and discrimination and that if the Petitioner had any problems with Mr. Morris that she should personally contact Ms. Galloway.
In her capacity as District Advisor, Ms. Galloway supervised the day-to-day operations of a number of stores. In fact, during the above-referenced time period, Ms. Galloway was supervising her own normal district area, as well as that of another district manager who had resigned.
The three sales clerks at store No. 31, Ms. Dorey, Ms. Word, and Ms. Myles were all reprimanded ("written-up") in
February 2006, because of their cash registers being "short," or containing insufficient funds at the close of the business day or shift. The Petitioner was also counseled for insubordination on this occasion because she told Ms. Word, in front of customers, that she was not going to take out the trash because Mr. Morris and Ms. Dorey would be into work soon and "they never did anything anyway." Ms. Word confirmed that Ms. Myles had made that statement to the store management.
Sometime in February 2006 the Petitioner expressed the desire to transfer to a store on the West side of Pensacola because she was no longer employed in her other job in the
Milton area. She therefore wanted to work for Tom Thumb at a location closer to her residence. The Manager, Mr. Kukuk at that time, informed Ms. Galloway of this wish on the part of the Petitioner. Ms. Galloway contacted the District Advisor for the West side of Pensacola, Bill Jordan, to inquire whether any positions were available that would fit the Petitioner's schedule. Ms. Galloway followed up on the question with
Mr. Jordan several days later, but Mr. Jordan said that he had no employment positions available at that time.
The Petitioner then filed her Charge of Discrimination on February 16, 2006, (her first charge). In her Discrimination Charge the Petitioner maintains that she was constantly "getting written-up" for unnecessary matters by Mr. Morris, the Manager. In fact, however, she was written-up only once while Mr. Morris was the Assistant Manager of the store, as were Ms. Word and Ms. Dorey, the other clerks. Both Ms. Word and Ms. Dorey are white.
Patricia Merritt was installed as the new store manager at store No. 31 on February 24, 2006. Ms. Merritt has worked for the Respondent for 17 years as a clerk, assistant manager, and manager. Ms. Merritt had the responsibility of managing the store, ascertaining that all duties involved in store operation were accomplished and supervising and monitoring the performance
of other store employees. She imposed discipline, including termination if necessary, and also hired employees.
Mr. Morris failed to appear for work, beginning the first week of March 2006. He was terminated from his employment with the Respondent on March 9, 2006. In February or early March, Ms. Merritt informed Ms. Galloway that she had overheard another employee referring to the Petitioner having filed a claim against the Respondent because of Mr. Morris. Prior to that time Ms. Merritt was unaware of any problem between Mr. Morris and the Petitioner.
Between the time that Ms. Galloway met with the Petitioner on January 31, 2006, and the time she heard from store manager Merritt that the Petitioner was still having a problem with Morris in late February or early March, the Petitioner had not contacted Ms. Galloway to report any problem. After being advised of the matter by Ms. Merritt, Ms. Galloway advised Ms. Merritt to contact the Petitioner to find out her version of the events which occurred and to offer her a transfer to any one of five stores that Ms. Galloway was responsible for on the East side of Pensacola. Ms. Merritt met with the Petitioner and offered her the transfer opportunity, which the Petitioner refused at that time because she had a mediation pending.
When Ms. Merritt began duties as store manager a misunderstanding occurred about the Petitioner's schedule. Ms. Merritt understood, mistakenly, that the Petitioner was available for fewer hours of work than she actually was. This resulted in the Petitioner being scheduled to work fewer hours for two or three weeks. Ms. Merritt was then informed of the
Petitioner's actual scheduling availability by someone from the management office. On March 20, 2006, the Human Resource Manager, Sheila Kates, met with the Petitioner. The Petitioner complained about her reduced hours which Ms. Kates discussed with Ms. Merritt. As soon as Ms. Merritt realized that she had misunderstood the Petitioner's hours of availability she increased the Petitioner's hours on the work schedule. The Petitioner agreed that Ms. Merritt had been unaware about any problem between the Petitioner and Mr. Morris, when she reduced the Petitioner's work hours schedule because of her misunderstanding of the Petitioner's availability. Ms. Kates again offered to allow Ms. Myles to transfer to another store if she wished (apparently to help her avoid her apparent conflict with Mr. Morris), but the Petitioner again declined.
Ms. Galloway, as part of her duties as District Advisor, conducted store inventory audits. She conducted a store inventory audit for Store No. 31 on May 30, 2006. During that audit she discovered that the store had a significant
inventory shortage. Ms. Galloway therefore scheduled a "red flag" meeting the next day with each employee at the store, as well as meeting with them as a group to discuss inventory control. All of the employees at the store were counseled regarding the inventory shortage, including Ms. Myles and
Ms. Word.
Ms. Word, who is white, was issued a written reprimand on March 24th and April 24th, 2006, because of cash shortages. Ms. Word was subsequently terminated on June 16, 2006, for causing inventory shortages by allowing her friends to come in and take merchandise out of the store without paying for it, as well as for excessive gas "drive offs," or instances where people pumped gas into their vehicles and failed to pay for it.
The Petitioner was given a $1.00 per hour raise by Ms. Merritt on or about April 2006. Ms. Merritt also changed the Petitioner from a part-time to a full-time employee in May 2006. This change enabled the Petitioner to become eligible for employee benefits.
Ms. Merritt also, however, reprimanded the Petitioner for a cash shortage on July 14, 2006. The Petitioner admitted that her cash register was $48.00 dollars short on that day.
The Petitioner complained to Ms. Galloway sometime in July of 2006 that Mr. Morris, the former store manager, and no longer an employee, had been vandalizing her car when he came to
the store as a customer. Although these allegations were uncorroborated at that time, Ms. Galloway advised the Petitioner to call the police about the matter and to contact Ms. Kates directly, in the Human Resources office, if there were any more such incidents.
The Petitioner filed a retaliation claim against the Respondent on August 7, 2006. Ms. Merritt had been considering the Petitioner for promotion to assistant store manager. The Petitioner completed a background check authorization for that position on September 19, 2006.
Mark Slater is a Regional Manager for the Respondent.
His duties include supporting the District Advisor's position, which includes recruitment, hiring and training of managers, reviewing sales trends, and reviewing any other financial trends, such as cash shortages, "drive offs" and inventory losses.
In mid-October 2006, in the course of a routine review of reports from Store No. 31, Mr. Slater became aware of a possible problem regarding excessive gasoline drive offs, and an unusual purchase-to-sales ratio. Shortly after his review of those reports, Mr. Slater went to Store No. 31 to review the store's electronic journal. The electronic journal contained a record of all the store transactions. In his review of that journal, he focused on "voids," "no sales," and "drive offs,"
which could explain the irregularities that he had observed in his initial review.
In his review of the "voids" at store No. 31 during the period in question, Mr. Slater noted quite a few voids for cigarette cartons, for large amounts, in a very short period of time. Specifically, in the course of seven minutes, he observed voids in the total amount of $406.23. He found this to be highly irregular and suspicious.
Mr. Slater also looked at the drive-offs, because he had noticed some trends on that report as well. In reviewing drive-offs, he noticed that the same employee number was involved in both the voids and the drive-off transactions.
Mr. Slater noted in his review that one drive-off was held on a void and then brought down as a drive-off, which appeared suspicious to him. Mr. Slater than matched up the electronic journal transactions with the security video tape that corresponded with that journal entry. In observing the video tape, Mr. Slater identified the transaction entered as a drive-off, but saw from the video tape that a customer had in fact come in and paid for the gas in question with cash.
When he began his review Mr. Slater did not know which employee had the employee number that was used in association with the voids and the gasoline drive-offs. However, after he had concluded his investigation, he researched that number and
found out that it was the number assigned to the Petitioner. Mr. Slater thus knew that the Petitioner had voided the drive- off transaction, as shown in the electronic journal, while the video tape showed that the Petitioner had actually served the customer who, in fact, did not drive-off without paying, but had paid $20.00 in cash for the gasoline in question.
When she was asked about the security video showing the Petitioner accepting the $20.00 for the transaction which she had entered as a gas drive-off, the Petitioner responded that she did not recall it.
Mr. Slater concluded that the Petitioner had not properly handled the transaction and took his findings to the Human Resources Manager, Sheila Kates. After consulting with Ms. Kates, the decision was made to terminate the Petitioner's employment.
Prior to making his investigation and prior to making his conclusions, Mr. Slater was unaware of any issues between the Petitioner and Michael Morris. None of his findings and decisions regarding the situation with the Petitioner's voids and drive-offs had anything to do, in a retaliatory sense, with any issues or complaints the Petitioner might have had against Michael Morris or to the Respondent concerning Michael Morris.
After being discharged for related types of conduct, neither Ms. Lugenia Word, who is white, nor the Petitioner, Ms. Myles, are eligible for re-hire by the Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).
This action has arisen under Section 760.10, Florida Statutes (2006), the so called Florida Civil Rights Act of 1992 (FCRA).
The FCRA is modeled after the Federal anti- discrimination statutes (Title VII), therefore Federal case law may be looked to or as persuasive or controlling authority regarding petitions arising under the FCRA. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
Discrimination cases are analyzed under the standard established by the United States Supreme Court in the decision of McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973). This standard requires that the Petitioner initially establish a prima facie case of discrimination. The Petitioner's prima
facie case of racial discrimination is established if the Petitioner is able to show that she: (1) belongs to a protected
minority; (2) that she was subjected to an adverse employment action; (3) that her employer treated similarly situated employees of other races more favorably than it did the Petitioner; and (4) that she was qualified to do her job. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997); McDonnell-Douglas Corporation, supra at 802.
The Petitioner has not established a prima facie case of discrimination, principally because she did not establish that similarly-situated individuals of other races were treated more favorably than she. In this particular, both the Petitioner and a white employee, Ms. Word, were similarly disciplined, that is they were terminated. The conduct for which they were terminated involved similar issues of allowing unauthorized persons to take inventory of the Respondent without paying for it and showing cash sales as a void entry on the cash register and converting the actual cash payment for the sale from the customer to personal use. Thus, both Ms. Word and the Petitioner are similarly situated employees in terms of the conduct engaged in and the discipline meted out, termination. The preponderant, persuasive evidence establishes that both the Petitioner and Ms. Word were treated similarly in terms of the discipline meted out. Because the Petitioner is African- American and Ms. Word is white the Petitioner failed to show that similarly-situated individuals of other races were treated
more favorably than she. Thus her prima facie case fails for this reason. Moreover, a cogent argument can be made that she failed to establish that she was qualified to perform her job as another element of her prima facie case, in a retrospective sense, in that, by committing conduct of this nature, which was proven, she certainly would not be a qualified employee, although it is true that during the course of her duties she apparently performed at least adequately, until her wrongful conduct was discovered.
Assuming arguendo that her prima facie case of discrimination had been established, the burden of going forward with evidence would have shifted to the Respondent, to articulate some evidence of a legitimate, non-discriminatory reason for the employment action taken. McDonnell-Douglas
Corp., supra at 802-03; Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). The burden on the employer Respondent is "exceedingly light" in this regard. The Respondent's burden would be satisfied if it produced evidence which, if taken as true, would permit a conclusion that there was a non-discriminatory reason for the adverse action. See Meeks v. Computer Associates Intl., 15 F.3d 1013, 1019 (11th Cir. 1994); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). The Respondent need not persuade the court that it was actually motivated by the proffered reasons for the employment
action taken, it is sufficient if the evidence raises a genuine issue of fact as to whether the action was based upon discriminatory motives. See Chapman v. A1 Transport, 229 F.3d 1012, 1024 (11th Cir. 2000); Combs, supra at 1528.
The Respondent met its burden of providing persuasive, preponderant evidence that the Petitioner was disciplined and later terminated for a legitimate, non-discriminatory business reason involving the misconduct referenced in the above findings of fact. Moreover, it established that the scheduled hours reduction for a brief period, for two or three weeks, was not intentional on the part of the Respondent and had no discriminatory motive underlying it. The hours reduction was rather due to a misunderstanding by the manager and not because of a discriminatory or even a disciplinary motive.
Since the Respondent satisfied its burden of going forward with evidence of a non-discriminatory reason for the termination, it became incumbent upon the Petitioner to prove, by preponderant evidence, that the reasons offered by the Respondent were pretextual in nature. Silvera v. Orange County School Board, 244 F.3d 1253, 1258 (11th Cir. 2001).
The Petitioner failed to establish pretext through persuasive evidence which would demonstrate that the employer's decision herein was based upon discrimination. Holifield, supra at 1565. (The inquiry into pretext centers upon the employer's
beliefs and not the employee's own perceptions of his performance.)
The Petitioner thus failed to comply with her ultimate burden of showing discriminatory intent on the Respondent's part. "The ultimate question is whether the employer intentionally discriminated, and proof that the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct. In other words, 'it is not enough . .
. to disbelieve the employer, the fact finder must believe the plaintiff's explanation of intentional discrimination.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146-47 (2000) (quoting St. Mary's Honor Center, 509 U.S. at 524).
The Petitioner failed to offer credible evidence to prove that the explanations put forth by the Respondent concerning its employment actions, were a pretext for racial discrimination. In fact, the Petitioner did not come forward with any credible testimony or evidence demonstrating pretext or otherwise showing discrimination. The Petitioner was thus not subjected to any unlawful employment practice or action based upon her race and the Respondent in this regard did not violate the FCRA.
In order to establish her prima facie case or retaliation, the Petitioner was required to prove that she was
engaged in a statutorily protected activity; that the Respondent took an adverse employment action against her; and that a causal link exists between the protected activity and the adverse employment action. Maniccia v. Brown, 171 F.3d 1364, 1369 (11th Cir. 1999); Little v. United Techs., 103 F.3d 956, 959 (11th
Cir. 1997); Goldsmith v. City of Atmore, 996 F.2d 1155, 1163
(11th Cir. 1993).
The same burden-shifting analysis that applies to discrimination claims in chief, also applies to derivative claims of retaliation. See Holifield, supra. (Citing EEOC v.
Reichhold Chemicals, Inc., 998 F.2d 1564, 1571-72 (11th Cir.
1993).
The Petitioner clearly engaged in a statutorily protected activity by filing a Charge of Discrimination and Retaliation with the FCHR. The Petitioner, however, failed to establish a causal link between that activity and any adverse employment action, in light of the above Findings of Fact. The Petitioner therefore failed to prove a prima facie case of retaliation. Even assuming she had proven a prima facie case of retaliation, the Petitioner failed to establish that the Respondent's legitimate, non-discriminatory business reason for the employment action taken was pretextual for what amounted to retaliation. In summary, the Respondent did not unlawfully retaliate against the Petitioner.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the charges of discrimination and retaliation at issue in their entirety.
DONE AND ENTERED this 29th day of October, 2007, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2007.
2103 Haynes Street, Apt. C Pensacola, Florida 30326
Cathy M. Stutin, Esquire Fisher & Philips LLP
450 East Las Olas Boulevard, Suite 800 Ft. Lauderdale, Florida 33301
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.
