STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATASHA TULLOCH, )

)

Petitioner, )

)

vs. ) Case No. 00-4935

)

WAL-MART SUPER CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 26 and 27, 2001, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Natasha Tulloch, pro se

2425 Mission Road, Apartment 904

Tallahassee, Florida 32304

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

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 26, 2000.

PRELIMINARY STATEMENT

On March 26, 2000, Petitioner, Natasha Tulloch, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) which alleged that Respondent, Wal-Mart Super Center (Wal-Mart) had violated Section 760.10, Florida Statutes, by discriminating against her on the basis of her sex (gender).

The allegations were investigated by FCHR and on

October 26, 2000, FCHR issued its determination of "no cause." A Petition for Relief was filed by Petitioner on or about

November 30, 2000. FCHR transmitted the Charge of Discrimination and the Petition for Relief to the Division of Administrative Hearings on or about December 8, 2000. The Division of Administrative Hearings issued its Initial Order on December 11, 2000, which included the notice that a party "may appear personally or be represented by an attorney or other qualified representative. . .". The Order also advised the parties that "requests for continuances must be made at least five days prior to the date of the hearing, except in cases of extreme emergency, and will be granted only by order of the judge for good cause shown." A Notice of Hearing was issued on December 29, 2000, which noticed the case for final hearing on February 26 and 27, 2001.

At the commencement of the hearing, Petitioner requested a continuance to obtain legal counsel. Respondent objected on the

basis of untimeliness and that Respondent's witnesses, some of whom traveled from out-of-town, were all assembled and ready. After hearing arguments of the parties, the request for continuance was denied.

At the hearing, Petitioner testified on her own behalf and offered the testimony of Wendy Rhodes, Patricia Allen, Katrina Touchtone, Traci Dickerson, Gale Rambaran, Kareem Reed, and Mike Odum. Petitioner also offered into evidence Exhibits 1 through

12 which, except for Exhibit 7, were admitted into evidence.

Petitioner's Exhibit 7 was proffered. Respondent offered the testimony of Brenda Meyers, George Wilkins, Lisa Green, Mitchell Day, and Todd Peterson. Joint Exhibit 1 was offered by the parties and was received into evidence.

There is no transcript of the hearing. Proposed Recommended Orders were filed by Petitioner and Respondent on March 27 and 23, 2001, respectively, and have been considered by the undersigned in the preparation of this Recommended Order.1

FINDINGS OF FACTS

1. Petitioner first interviewed for the position of Assistant Manager Trainee with Respondent on March 17, 1999. Her first interview was with Traci Dickerson, Assistant Manager for Operations. Ms. Dickerson was impressed with Petitioner's presentation and recommended that she be interviewed a second time by Mitchell Day, District Manager. After the interview,

   Petitioner was offered a position as Assistant Manager Trainee to begin work at Wal-Mart Super Center on Apalachee Parkway in Tallahassee, Florida, on May 10, 1999.

2. The Assistant Manager training program is a seventeen- week program conducted at selected Wal-Mart stores throughout the country. The Wal-Mart store in question in the present case is one of just a few stores in Florida that were utilized for this training program. Ms. Dickerson was the person responsible for administering the program in the store in question during the relevant time frame.

3. Another Assistant Manager Trainee, Sean Mitchell, began the training program on the same date as Petitioner. Mark Whitmore, another Assistant Manager Trainee, began the training program sometime prior to Petitioner. Mr. Whitmore was a long- time employee of Wal-Mart who transferred from management in the home office into the retail sales side of the business. Because of his prior experience with Wal-Mart, his training program was handled differently from the training administered to Petitioner in that it was accelerated. Mr. Mitchell's training was the same type as Petitioner's although each trainee may have been given various assignments on different days and in different sequence.

4. Sometime during the training process, certain members of management with Respondent became concerned about

   Petitioner's attitude toward the training program, her willingness to take constructive criticism, and her communication/people skills.

5. Sometime around the second week of Petitioner's employment with Respondent, she was observed by Assistant Manager Wendy Rhodes, to be engaged in a conversation with Sean Mitchell during working hours. It appeared to Ms. Rhodes that the two individuals were socializing rather than working.

   Mr. Rhodes approached the two and instructed them to begin the workday. Later, Ms. Dickerson, in her role as the Program Supervisor, provided constructive criticism to Petitioner that she should concentrate on her work and not socialize during work hours.

6. On or about May 29, 1999, while Petitioner was working in lay-away, she was asked to come to the front of the store to assist Brenda Meyers, a front-end manager, because of an increase of customers at the various cash registers. As an Assistant Manager Trainee, Petitioner was expected to "pitch in" and assist throughout the store where needed. Petitioner responded to Ms. Meyers' request by indicating that she was intending to go on her break and refused to come and assist at that time. Because of Petitioner's refusal, George Wilkins (a co-manager and directly below the store manager in the chain of command of the store) took a turn working at a cash register.

   Every manager at Wal-Mart is expected to be a team player and assist when the need arises.

7. Mr. Wilkins arranged to meet with Petitioner to discuss the incident and general concerns he had as result of feedback he received from other members of management about her unwillingness to do certain tasks, and to give counseling advice on how to conduct herself as an Assistant Manager. Petitioner immediately became defensive and asserted that because she had a bachelor's degree, she did not have to "take this." Mr. Wilkins attempted to explain to Petitioner that her degree was important, but her attitude toward her work and her willingness to do her fair share were more important. Petitioner was not receptive to Mr. Wilkins' efforts to provide constructive criticism.

8. Sometime in late-July 1999, Petitioner traveled with Mike Odum, an Assistant Manager and Lisa Green, who at the time was Personnel Manager at the store in question, to Georgia to attend a new store opening. On the return trip, Petitioner became upset because she was concerned that the group would not return to Tallahassee in time for her to pick up her child from daycare. She confronted Mr. Odum, very upset about the possibility of returning to Tallahassee after 5:00 p.m. However, he returned to Tallahassee prior to the time that Petitioner needed to be back in Tallahassee.

9. On or about August 20, 1999, Petitioner was assigned to the 2:00 p.m. to 11:00 p.m. shift to assist the Customer Service Manager (CSM) in closing the store. The function of the "closing CSM" is important, and Petitioner was needed to assist in that regard. Because the store manager and other members of management were out of town at a meeting, Mr. Odum was in charge of the store. Instead of coming in at 2:00 p.m., Petitioner arrived at the store at 9:00 a.m. She clocked in on the time clock and proceeded to the break room where she warmed her meal and sat down to eat. After she completed her meal, she proceeded to the front of the store to assist the Customer Service Manager.

10. Not long after Petitioner arrived at the store and assumed her position, she was called to the Manager's office to discuss her work schedule for the day. At that time, Mike Odum and Traci Dickerson (Ms. Dickerson participated by phone) reminded Petitioner that her scheduled shift was from 2:00 p.m. to 11:00 p.m. The importance of this was that if she had worked too many hours without prior approval, she would have been in an unauthorized overtime situation. Additionally, it is important to have a "closing CSM" at the appropriate time. Petitioner left work to return in the afternoon as originally scheduled.

11. Petitioner returned to work in the afternoon. She reported to the front temporarily but became frustrated with one

    of the assistant managers. Feeling that what she was doing was a waste of time, she proceeded to the training room where she reviewed her training materials. She was paged to the front of the store on numerous occasions but did not respond to the calls. Mike Odum went to the training room and told Petitioner to come to the front of the store to assist. Petitioner refused and stated that she would remain in the back of the store and continue reading her manual. When Petitioner refused, Mr. Odum instructed Petitioner to clock out and to come back when the District Manager would be available for a conference.

    Petitioner left the store shortly thereafter.

    
    

12. Petitioner arranged to meet with Mitchell Day, the District Manager who oversees nine stores and approximately 4,800 employees, on August 25, 1999. Mr. Day understood the meeting to be for the purpose of resolving concerns about the issues involving Petitioner and giving Petitioner an opportunity to express her concerns. Management saw this meeting as an opportunity to "get everything out on the table" so that Petitioner could continue with her training program. Accordingly, Mr. Day scheduled the meeting with Todd Peterson, Store Manager; Mike Odum; George Wilkins and Traci Dickerson. All of these individuals expressed concern about Petitioner's performance, her attitude toward the training program, her

    willingness to accept constructive criticism, as well as their willingness to assist her in completing the training program.

13. There is no evidence that Mr. Day or any other member of management intended that the meeting be conducted for the purpose of terminating Petitioner.

14. Petitioner entered the room and walked past other members of management and approached Mr. Day in a confrontational manner. She was upset at the presence of the various members of management. Despite being asked to be seated, she refused to sit down and begin the meeting. Every participant in the meeting who testified at hearing gave consistent testimony that she raised her voice to an inappropriate level, was hostile and explosive. All recalled her using profanity, with the exception of Mr. Day who did not specifically recall her use of profanity. Every person in the room was stunned at her demeanor, in particular that it was addressed to an upper level management person. Based upon the unprofessionalism of this outburst, Mr. Day advised her that her employment was terminated. The formal reason given for her termination was insubordination.

15. There is nothing in the evidence presented at final hearing to indicate that any of the actions taken by Respondent or members of Respondent's management were based on Petitioner's gender or on any other form of discrimination.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

17. Section 760.10(1)(a), Florida Statutes, states that it is an unlawful employment practice for an employer to discharge or otherwise to discriminate against an individual because of the individual's sex.

18. FCHR and the Florida courts interpreting the Florida Civil Rights Act of 1992 have determined that federal discrimination law should be used as guidance when construing provisions of the Act. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Cooper v. Lakeland Regional

    Medical Center, 16 FALR 567, 574 (FCHR 1993).

    
    

19. In order to make out a prima facie case of gender discrimination under Section 760.10(1)(a), Florida Statutes, Petitioner must show that she is a member of a protected class (gender), that she was fully qualified for the job for which she applied, that she was rejected in spite of her qualifications (subject to adverse employment decision), and that employees who are not a member of the protected class performed their duties in a similar fashion but were not terminated. See McDonnell Douglas Corp., v. Green, 411 U.S. 792 (1973).

20. Here, Petitioner has arguably met her burden of proving a prima facie case of gender discrimination because she is a member of a protected class (gender); she met the minimum qualifications for the position (this is presumed because Respondent offered her the position of Assistant Manager Trainee); she was subject to an adverse employment decision (termination); and persons outside the protected class were not terminated.

21. When the charging party, i.e., the Petitioner, is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. See Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA

    1991)(court discusses shifting burdens of proof in discrimination cases). The employer has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. The employer need not persuade the finder of fact that the employee's performance justified termination, but only that the decision was non-discriminatory. Alexander v. Fulton County, GA, 207 F. 3rd 1303 (11th Cir. 2000). Respondent has met this burden.

    Respondent has adequately articulated a legitimate, non- discriminatory explanation for terminating Petitioner's employment.

22. Once the employer articulates a legitimate non- discriminatory explanation for a termination, the burden shifts back to the charging party that the explanation given by the employer was a pretext for intentional discrimination. Department of Corrections v. Chandler, supra; Alexander v.

    Fulton County, GA, supra. Petitioner has not met that burden.

    
    

23. At hearing, Petitioner also raised the issue of discrimination on the basis of race. However, the Charge of Discrimination filed on March 26, 2000, which was investigated by FCHR and forwarded to DOAH, was based solely on sex (gender) discrimination. The Division of Administrative Hearings has no jurisdiction to hear allegations of discriminatory conduct which FCHR has not investigated or made a determination as to

reasonable cause.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Florida Commission for Human Relations enter a final order denying and dismissing the Petition for Relief.

DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 27th day of April, 2001.

ENDNOTE

1/ At the same time Petitioner filed her Proposed Recommended Order, Petitioner also filed several documents which appear to be a copy of FCHR's file regarding this matter. Many of the documents are duplicative of documents or orders from the Division's file. However, these documents are considered late filed exhibits and have not been addressed in the preparation of this Recommended Order.

COPIES FURNISHED:

Natasha Tullock

2425 Mission Road, Apartment 904

Tallahassee, Florida 32304

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

Florida, P.A.

635 West Garden Street Pensacola, Florida 32501

Azizi Coleman, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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: 00-004935

Orders for Case No: 00-004935