vs.
Respondent.
) Case No. 03-0048
Notice was provided, and a formal hearing was held on June 18, 2003, in Deland, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.
For Respondent: Peter R. Corbin, Esquire
Whether Respondent Wal-Mart Stores, Inc. (Wal-Mart) engaged in an unlawful employment practice with respect to Petitioner Roberta Trevarthen (Ms. Trevarthen).
Ms. Trevarthen filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission), on September 11, 2000. She stated that, but for her sex she would not have been terminated as a loss prevention specialist with Wal-Mart, on August 3, 1999, and she claimed that, she was treated less favorably than similarly situated males. On November 27, 2002, the Commission filed a "Determination: No Cause" finding that there was no reasonable cause to believe that an unlawful employment practice had occurred.
Subsequently, Ms. Trevarthen filed a Petition for Relief with the Commission. Thereafter the Commission forwarded the Petition to the Division of Administrative Hearings for adjudication and the matter was filed on January 8, 2003.
The matter was set for hearing on April 23, 2003. Pursuant to a request for a continuance filed by Ms. Trevarthen, the case was re-set for June 18, 2003, and heard as re-scheduled.
Petitioner offered one document that was received into evidence. Petitioner presented the testimony of Eddie Gregory, James William Barlow, and testified in her own behalf. Wal-Mart offered 20 documents that were received into evidence.
Respondent presented the testimony of Peter Greer and, without objection, filed the transcript of Robert Mulak subsequent to
the hearing, for consideration as if he had testified at the hearing.
A Transcript was filed September 2, 2003. Respondent timely filed a Proposed Recommended Order on September 12, 2003, which was considered in the preparation of this Recommended Order. Petitioner did not file a proposed recommended order.
Citations are to Florida Statutes (1999) unless otherwise noted.
Roberta Trevarthen is a female who worked for Wal-Mart for two and one-half years until she was terminated August 3, 1999. Ms. Trevarthen has had a long career as a loss prevention specialist and was functioning in that capacity for Wal-Mart during times pertinent to this case. A loss prevention specialist uses surreptitious observation techniques to stop theft that might be committed by customers or employees or both.
Wal-Mart is a retail outlet having stores across the United States. One of the stores Wal-Mart owns and operates is located in Port Orange, Florida.
The Florida Commission on Human Relations administers the Florida Civil Rights Act of 1992.
Ms. Trevarthen was on duty as a loss prevention specialist in the Port Orange, Wal-Mart store on August 2, 1999. On that day she spotted a man whom she believed was acting
suspicious and who might be planning to shoplift. He was a dirty white male who appeared to be a transient.
Ms. Trevarthen observed the suspect go in and out of the store on three occasions and then observed him re-enter the store. She followed him to the electronics section and observed him pick up an item in a Blistex container. Thereafter James W. Barlow (Mr. Barlow), another loss prevention specialist working in the store joined her. Ms. Trevarthen suggested that they looked suspicious huddled together so she asked Mr. Barlow to move away.
Ms. Trevarthen then observed the suspect enter the fitting room with the object in his hands concealed by a pair of men's trousers. When the suspect left the fitting room he put the trousers on a display stand. Ms. Trevarthen asked
Mr. Barlow to check the fitting room and he found no merchandise there.
Ms. Trevarthen watched the suspect walk toward the grocery section and believed that he had an unnatural bulge in his trousers. Then she observed him walk past the cash register section and observed him exit the front door. Ms. Trevarthen did not continuously observe the suspect from the time she first suspected he had lifted merchandise, until when he departed the store.
Once the suspect exited the store, Ms. Trevarthen, Mr. Barlow, and a stocker named Eddie Gregory, stopped the suspect, and required him to accompany them to the Security Office. No merchandise was found on his person. The suspect said that he had left the merchandise he had picked up on a counter by the fitting room. The two loss prevention specialists went with him to that area and there found a comb and mirror set.
Pursuant to Wal-Mart procedures, a loss prevention specialist must satisfy five elements before deciding to stop a shoplifting suspect. The specialist must see the person take merchandise from its resting place in the store; must observe the person conceal the merchandise; must maintain observation of the person at all times prior to the stop; must observe the person fail to pay for the merchandise; and must allow the person to exit the vestibule before effecting the stop.
Ms. Trevarthen failed to comply with the element requiring constant observation of the suspect and thus, in loss prevention parlance, made a "bad stop," which means the stop failed to produce evidence sufficient to prosecute the suspect as a thief. Although Mr. Barlow is a co-equal loss prevention specialist, and he helped stop the suspect, it was
Ms. Trevarthen who initiated the operation, made the decision to stop the suspect, and actually effected the stop. Therefore, in
accordance with Wal-Mart policy, the responsibility for the bad stop rested entirely on her.
The loss prevention specialist who makes a stop is responsible for making the report concerning it, whether it is a good stop or a bad stop. If a bad stop is made, the loss prevention specialist is required to notify the store manager and the district loss prevention supervisor. When these events occurred, Robert Mulak (Mr. Mulak) was the store manager and Peter Greer (Mr. Greer), was the district loss prevention supervisor.
Ms. Trevarthen did not immediately tell Mr. Mulak or Mr. Greer about the bad stop. Mr. Greer learned of it the next day when Mr. Barlow informed him telephonically.
Ms. Trevarthen was the recipient of acceptable performance reviews on May 8, 1998, and January 18, 1999. She was given a "Coaching for Improvement Form" on April 11, 1998, by Joe T. Moore, who is currently the store manager, and again on November 24, 1998, by Mr. Greer. These forms are given subsequent to counseling sessions.
Bad stops precipitated these "Coaching for Improvement Forms." The first coaching was nothing more than a counseling session. The subsequent coaching was termed a "decision-making" session and was a serious event. During this session she was advised that another bad stop could result in her termination.
A "decision-making" session, recorded on a "Coaching for Improvement Form," leaves an employee with no doubt that his or her job is in jeopardy.
Generally speaking, Ms. Trevarthen's peers and superiors seemed to have a higher opinion of her performance than the performance and counseling reports indicate. She made
200 successful stops in one year, which was considered to be exceptional by her supervisor.
Nevertheless, Ms. Trevarthen violated loss prevention doctrine when she stopped the suspect on August 2, 1999, because she did not observe the suspect from the time he was thought to have concealed merchandise until the time he was stopped. Moreover, she compounded the situation by failing to report it to the store manager and to Mr. Greer, the district loss prevention supervisor. This latter failing was an unforgivable breach and resulted in her termination by Mr. Greer on August 3, 1999.
Providing guidance to Mr. Greer, with regard to his decision to terminate Ms. Trevarthen, was a Wal-Mart document addressing loss prevention that was titled, Reasons for Immediate Dismissal. One of the reasons permitting immediate dismissal is set forth as follows: "Any breach of Company policy where the In-Store Loss Prevention Associate is in direct violation of Company policy rules, procedures, directives,
safety procedures, or regulations which relate to a breakdown of integrity, job performance or the ability to perform his/her duties will be cause for immediate termination from employment."
Mr. Barlow did not experience any disciplinary action as a result of this stop because it was not his stop and it was not his duty to report it. Mr. Barlow explained to Mr. Greer that he delayed reporting the incident because he wanted to give Ms. Trevarthen the opportunity to decide on her own to report it. Mr. Barlow perceived that Ms. Trevarthen was afraid to report it because she feared disciplinary action.
Ms. Trevarthen was told by Mr. Greer on one occasion, "You are a gal, whip these guys' butts." She also once heard someone say, "Hush up, there's a broad here." On one occasion she had, in her own words, "kiddingly" been called a "girl." Her testimony indicated that she was in no way offended by the manner in which these words were used.
The only evidence Ms. Trevarthen could produce which may have tended to prove that she was the victim of discrimination were the foregoing statements. The first statement appears to have been an attempt to motivate her to greater production. The second indicates that something was being said that was, in someone's opinion, inappropriate for a lady to hear. The references to her being a girl appear to have been made in jest.
Mr. Barlow has known Ms. Trevarthen for several years, and had worked with her for more than a year, and he never heard her complain about gender discrimination until the inception of this case. Mr. Greer stated that he harbored no prejudice toward women employees and stated that, "He was only interested in people who got the job done." He further related that he wanted people working for him who made him look like a good manager.
Wal-Mart has a policy against discrimination. This is explained to employees in the Associate Handbook which has a section titled, "Respect for the Individual." In this section are the words, "It is the policy of Wal-Mart to provide recruitment, hiring, training, promotion, and other conditions of employment without regard to race, color, age, gender, religion, disability, national origin, or veteran status."
At the time of her discharge Ms. Trevarthen was being paid $10.47 per hour and was working 40 hours per week. Immediately subsequent to termination she was unemployed for as long as four months. She lost her investigative license because she was not working in the loss prevention field. After about a year she obtained a job working with abused children and was paid $9.20 per hour for 32 hours per week. After six months she began working 40 hours per week. After a year her wage was increased to $9.32 per hour. After a year and one-half her wage
was increased to $9.52 per hour. In April of 2003, her wage was increased to $10.05 per hour.
At Wal-Mart she had a 401(k) plan that Wal-Mart supplemented with $20 per week, and insurance benefits. Wal- Mart also provided health insurance. No 401(k) plan is offered at her current place of employment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57(1) and 760.11(4)(b) and (6) (2002).
The Florida Civil Rights Act of 1992, as amended, found at Sections 760.01-760.11 and Section 509.092, was patterned after Title VII of the Civil Rights Acts of 1964 and 1991, Title 42 U.S. Code, Section 2000, et seq., as well as the Age Discrimination in Employment Act of 1967 (ADEA), Title 29
U.S. Code, Section 623. Federal case law interpreting Title VII and the ADEA is applicable to cases arising under the Florida Act. See Florida Department of Community Affairs v. Brant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
Section 760.10 provides in part as follows:
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to
discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
* * *
It is apparent, therefore, that Section 760.10 provides that it is an unlawful employment practice to discharge someone on account of his or her sex.
In a case of alleged discrimination, the employee must first establish that an unlawful employment practice has occurred by proving by a preponderance of the evidence a prima
facie case of discrimination. A plaintiff establishes a prima facie case of discrimination under Title VII by showing: (1) she belongs to a minority; (2) she was subjected to an adverse job action; (3) her employer treated similarly situated employees outside her classification more favorably; and (4) she was qualified to do the job. Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination. Holifield v.
Reno, 115 F.3d 1555 (11th Cir. 1997).
Ms. Trevarthen demonstrated that she was a member of a protected class because she was a woman. She was subject to an adverse job action because she was terminated. She was clearly qualified to accomplish the tasks assigned to her as a loss
prevention specialist. However, she failed to prove similarly situated employees outside her classification were treated more favorably.
With regard to this latter point, she attempted to prove that Mr. Barlow made the stop in question and that
Mr. Barlow failed to report the bad stop. The facts adduced at the hearing, however, proved by a preponderance of the evidence that Ms. Trevarthen made the determination that a stop was appropriate, supervised the stop, and physically made the stop herself. Furthermore, it was Mr. Barlow who informed management of the stop, even though it was Ms. Trevarthen's duty to do so.
In this case no proof was elucidated which would tend to show that there was any connection between Ms. Trevarthen's sex and her discharge. She complained that she had been referred to as a "broad" and a "girl" but there was no indication that these references were made by persons in authority, with the exception of the exhortations of Mr. Greer that show to the male loss prevention specialists what a capable employee she was. The alleged biases of other staff members are not relevant. "The biases of one who neither makes nor influences the challenged personnel decision are not probative in an employment discrimination case." Medina-Munoz v. R.J.
Reynolds Tobacco Co., 896 F.2d 5 (1st Cir. 1990).
The facts adduced by Ms. Trevarthen fell woefully short of proving a prima facie case. However, assuming arguendo
that a prima facie case was proven, the evidence failed to prove discrimination occurred.
If the employee succeeds in proving a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge of the employee. Should the employer meet this burden, the employee must then prove by a preponderance of evidence that the legitimate reasons offered were a pretext for the employment action and that, therefore, the real reason was grounded in discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The employer in this case, demonstrated a legitimate, nondiscriminatory reason for discharging Ms. Trevarthen. She had been warned on November 24, 1998, that an additional bad stop might result in her termination. Slightly more than eight months later she made another bad stop. Ms. Trevarthen compounded her mistake by failing to report it and subsequently lying about it. These failings resulted in her dismissal.
No evidence whatsoever was produced that would tend to show that Wal-Mart's actions were a pretext for discriminatory acts.
Ms. Trevarthen's Charge of Discrimination and Petition for Relief.
DONE AND ENTERED this 22nd day of September, 2003, in Tallahassee, Leon County, Florida.
HARRY L. HOOPER
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2003.
Peter R. Corbin, Esquire Ford & Harrison, LLP
121 West Forsyth Street, Suite 1000 Post Office Box 41566 Jacksonville, Florida 32202
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Cecil Howard, General Counsel 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.
