STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PRINCESS C. GAINEY,

Petitioner,

vs.

WINN DIXIE STORES, INC.,

Respondent.

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) Case No. 07-0796

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RECOMMENDED ORDER

This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on May 11, 2007, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Princess C. Gainey, pro se

500 Southeast 18th Street Apartment 67

Gainesville, Florida 32641

For Respondent: Tishia Green, Esquire

Constangy, Brooks & Smith, LLC Post Office Box 1840

Tampa, Florida 33601 STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful employment practice because of Petitioner's race.

PRELIMINARY STATEMENT

On April 21, 2006, Petitioner Princess C. Gainey

(Ms. Gainey) filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (Commission). The Complaint alleged discrimination based on race.

Specifically, she claimed she was demoted by Respondent Winn Dixie Stores, Inc. (Winn Dixie), because she was of the African-American race.

On January 8, 2007, the Commission entered its order finding no reasonable cause to believe that an unlawful employment practice had occurred. On February 7, 2007,

Ms. Gainey timely filed a Petition for Relief. This was duly transmitted to the Division of Administrative Hearings on February 14, 2007. The matter was set for hearing on May 11, 2007, and heard as scheduled.

At the hearing, Ms. Gainey presented the testimony of five witnesses and offered 12 exhibits. Nine of the exhibits were received into evidence. Subsequent to the hearing, she asked the Administrative Law Judge to consider several additional documents. The Administrative Law Judge did not consider them because they were not timely filed. Winn Dixie presented the testimony of three witnesses and offered four exhibits, which were received into evidence.

After the hearing, Winn Dixie timely filed its Proposed Findings of Fact and Conclusions of Law on May 25, 2007.

Ms. Gainey timely filed her Proposed Findings of Fact and Conclusions of Law on May 29, 2007.

References to statutes are to Florida Statutes (2004) unless otherwise noted.

FINDINGS OF FACT

1. Ms. Gainey is an African-American and is currently unemployed. She has a tenth-grade education and at the time of the hearing was 31 years of age.

2. Winn Dixie is a corporation engaged in the grocery business. It is headquartered in Jacksonville, Florida, and has stores throughout the southeastern United States. Winn Dixie is an employer as that term is used in Subsection 760.02(7), Florida Statutes.

3. Beginning in 1996, Ms. Gainey began employment more or less continuously in Winn Dixie stores. In 2005, she was working in Winn Dixie's Port Orange Store. She began her Winn Dixie employment by working as an overnight stocking clerk and then worked in the bakery department. In time she became a general merchandise stocking clerk. Eventually she was promoted to cashier. Subsequently, she was promoted to front-end manager and her responsibilities increased. She was also asked to be an

   in-store trainer, and she accepted this additional duty. She trained newly hired cashiers and baggers.

4. Ms. Gainey did an excellent job as front-end manager and was such a proficient in-store trainer, that she was asked on occasion to train personnel at other Winn Dixie stores. She was a popular manager. Both her peers and supervisors believed her to be a good employee. At least one Winn Dixie customer testified that at the Port Orange store she was, "Miss Winn Dixie."

5. Training at Winn Dixie had been accomplished at individual stores prior to 2005. Accordingly, there was no standardization. Management at Winn Dixie determined that training should be accomplished regionally so that uniformity could be established. Winn Dixie thereafter established a pilot program in the Jacksonville region, which included Ms. Gainey's store, that would develop specialized district trainers who would be responsible for training all new hires.

6. Winn Dixie issued a "job posting notice" dated

   
   

   March 23, 2005, through March 25, 2005, announcing the job title of "District Trainer 'New Hire Orientation & Cashier Training.'" The notice stated that the position would be responsible for conducting, "training sessions to support the delivery and dissemination of company-wide operational information,

   job-specific requirements, performance standards, human resource

   programs and policies, as well as pertinent safety program guidelines."

7. The skills set for an in-store trainer were not transferable to the district trainer position. The district trainer position being contemplated was much more demanding and required intensive training.

8. The position of district trainer would result in a promotion and an increase in salary for Ms. Gainey if she attained it. Consequently, she applied for it. Others did also. In the region in which Ms. Gainey was working, 50 people applied for 21 available positions. Ms. Gainey was selected for an interview.

9. Winn Dixie managerial employees Catherine Cole, Gary Lloyd, and Mathew Toussaint interviewed Ms. Gainey and all of the other applicants. Sixteen applicants were chosen for training as district trainers. Five were black and 11 were white or Hispanic. One person was selected from each district. Ms. Gainey was not selected.

10. Nevertheless, Ms. Cole recommended that Ms. Gainey attend training, and Ms. Cole and Mr. Toussaint overruled the recommendation of the interview board and determined she should attend training. This occurred because of the recommendation of her co-manager, who asserted that her presentation skills were "awesome" and because no one else from her district had applied.

11. Ms. Gainey was informed that she was to participate in the training. Despite Ms. Gainey's belief to the contrary, she was never given a job as district trainer. Rather, she was informed that upon successful completion of training she might be placed in that position. Regrettably, and erroneously believing she had received a promotion, Ms. Gainey bade a tearful farewell to her fellow workers. They threw a going away party for her.

12. The training commenced in Orlando, Florida, on Monday, May 9, 2005, and was scheduled for five days. During classes, Ms. Gainey did not absorb the information provided to her, gave inappropriate responses to questions, did not follow instructions, demonstrated that she could not follow along in the training book, and asked questions not related to the material. Her efforts were such as to evoke ridicule from her fellow students. Her demonstrated deficiencies resulted in a determination that she was unsuitable to be a district trainer.

13. Of the six African-Americans that underwent training, all but Ms. Gainey, were successful. Of the ten whites, all were successful. The one Hispanic was successful.

14. Ms. Gainey departed the training site convinced that she had successfully completed the course. However, a few days later she was informed by Ms. Cole, Mr. Toussaint, and John Koulouris that she had failed the course and would not be

    promoted. The decision not to promote her was solely based on her performance at the training and was not in any way based on her race. She was a valuable Winn Dixie employee and management wanted her to succeed. Winn Dixie was committed to working with her so that she could develop her skills and eventually advance. She was informed of this.

15. Ms. Gainey, upon learning of her failure, became very emotional. She was offered an opportunity to return to her old job or, should she choose, a job anywhere in the district.

    Ms. Gainey refused to return to the Port Orange store because she did not want her co-workers to learn of her failure.

16. Ms. Gainey asserted that she wanted to work in Gainesville, so she was assigned to Store 160 in Gainesville. Subsequently, she learned that Store 160 was slated to be closed, and she was allowed to return to her old store. However, she went on sick leave instead and never returned to work for Winn Dixie. She was terminated on May 13, 2006, due to her uncommunicative absence.

17. The job to which Ms. Gainey aspired was never filled.

    
    

    Winn Dixie, within a matter of months, determined that the district trainer plan was not sound and terminated the entire program.

18. Winn Dixie has a strong equal opportunity policy. No evidence was adduced during the course of the hearing that

    indicated that any action taken in regard to Ms. Gainey was based on discrimination. To the contrary, the evidence clearly demonstrated that Ms. Gainey was not placed in the position she desired because she was not qualified.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.57(1) and 760.10(7) Fla. Stat.

20. Subsection 760.10(1), Florida Statutes, states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race or sex. Because direct evidence of discrimination was conspicuous by its absence, Ms. Gainey, in order to prevail was required to prove her case by indirect evidence.

21. To prove a case by indirect evidence a charging party, Ms. Gainey in this case, must prove disparate treatment. In order to do so, the charging party generally bears the burden of proof established by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under this well established model of proof, the charging party bears the initial burden of establishing a prima facie case of discrimination.

22. If the charging party 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).

23. The employer then has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Id. Alexander v. Fulton County, Georgia, 207 F.3d 1303 (11th Cir. 2000). The charging party must then come forward with specific evidence demonstrating that the reasons given by the employer are a pretext for discrimination. "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Department of Corrections v. Chandler, supra at 1186; Alexander v. Fulton County, Georgia, supra.

24. Ms. Gainey claims she was removed from the position of district trainer because of race discrimination. To establish a prima facie case of race discrimination, she must prove that

    1. she is a member of a protected class, African-American;

       
       

    2. she was subject to an adverse employment action; (3) her employer treated similarly situated employees, who are not members of the protected class, more favorably; and (4) she was

    qualified for the job or benefit at issue. See McDonnell, supra; Gillis v. Georgia Department of Corrections, 400 F.3d 883 (11th Cir. 2005).

25. Ms. Gainey proved was that she was a member of a protected class, African-American. Giving the benefit of the doubt to Ms. Gainey, she also suffered an adverse employment action in that she did not obtain the job she sought, district trainer. As noted before, she was never given that job then relieved of it, as she asserted, and apparently believed. There was no evidence that Winn Dixie treated members not of a protected class more favorably. She was manifestly unqualified for the position of district trainer. Accordingly, she did not prove a prima facie case of racial discrimination. See Holifield v. Reno, 115 F.3d 1555, 1563 (11th Cir. 1997).

26. Even assuming that Ms. Gainey had demonstrated a prima facie case of discriminatory failure to promote, Winn Dixie demonstrated a legitimate, non-discriminatory reason for refusing to promote her to the position of district trainer. That is, she was unable to successfully complete the training that was a prerequisite for the position of district trainer.

27. Even if it were necessary to go to the next level of the McDonnell analysis, Ms. Gainey did not produce any evidence that Winn Dixie's legitimate reasons were a pretext for discrimination. Therefore, Ms. Gainey did not meet her burden

    of showing that a discriminatory reason more likely than not motivated the decisions to refuse to promote her or by showing that the proffered reason for the employment decision is not worthy of belief. Consequently, Ms. Gainey has not met her burden of showing pretext.

28. In summary, Ms. Gainey has failed to carry her burden of proof that Winn Dixie engaged in racial discrimination toward her when it declined to promote her to the position of district trainer.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 4th day of June, 2007, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 4th day of June, 2007.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Princess Catrice Gainey Post Office Box 290264 Port Orange, Florida 32129

Tishia Green, Esquire Constangy, Brooks & Smith, LLC

100 North Tampa Street, Suite 3350 Post Office Box 1840

Tampa, Florida 33601

Princess C. Gainey

500 Southeast 18th Street Apartment 67

Gainesville, Florida 32641

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 07-000796

Orders for Case No: 07-000796