Elawyers Elawyers
Washington| Change

ALAN D. JIMENEZ vs WHOLE FOODS MARKET, 07-001114 (2007)

Court: Division of Administrative Hearings, Florida Number: 07-001114 Visitors: 25
Petitioner: ALAN D. JIMENEZ
Respondent: WHOLE FOODS MARKET
Judges: ROBERT E. MEALE
Agency: Florida Commission on Human Relations
Locations: Fort Lauderdale, Florida
Filed: Mar. 08, 2007
Status: Closed
Recommended Order on Thursday, June 7, 2007.

Latest Update: Aug. 22, 2007
Summary: The issue is whether Respondent committed employment discrimination against Petitioner.Petitioner failed to prove that he was fired due to discrimination on the basis of race or national origin.
07-1114.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


ALAN J. JIMENEZ, )

)

Petitioner, )

)

vs. ) Case No. 07-1114

)

WHOLE FOODS MARKET, )

)

Respondent. )

)


RECOMMENDED ORDER


Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale,, Florida, on May 15, 2007.

APPEARANCES


For Petitioner: Alan D. Jimenez, pro se

820 Northeast 19th Terrace Fort Lauderdale, Florida 33304


For Respondent: Jon K. Stage

Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.

200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301


STATEMENT OF THE ISSUE


The issue is whether Respondent committed employment discrimination against Petitioner.

PRELIMINARY STATEMENT


By Employment Complaint of Discrimination dated August 22, 2006, Petitioner alleged that Respondent discriminated against

him in employment based on his race (South American Indian) and national origin (Hispanic) when it fired him on August 5, 2005.

By Notice of Determination: No Cause dated January 29, 2007, the Florida Commission on Human Relations determined that there is no reasonable cause to believe that an unlawful employment practice occurred.

By Petition for Relief dated February 27, 2007, Petitioner alleged that Respondent discriminated against him in employment when it fired him and replaced him with a non-Hispanic.

At the hearing, Petitioner called seven witnesses and offered into evidence one exhibit. Respondent called three witnesses and offered into evidence 14 exhibits. All exhibits were admitted.

Neither party ordered a transcript or filed a proposed


recommended order.


FINDINGS OF FACT


  1. Petitioner is a Peruvian South American Indian and Hispanic. He is also a Spanish speaker, although he speaks English fluently.

  2. Respondent owns and operates a chain of grocery stores.


    Petitioner worked at Respondent's store in Fort Lauderdale from December 1992 until he was terminated in August 2005.

    Petitioner started as a produce clerk and, at the time of his termination, he had worked his way up to produce manager. He

    had been employed as a produce manager of the Fort Lauderdale store since April 2002.

  3. Petitioner enjoyed a good reputation among his coworkers. He was fair and a good manager. He enjoyed good rapport with customers and employees. Petitioner's employment record was unblemished except for one incident prior to the subject incident. On February 17, 2005, Petitioner received an Unsatisfactory Work Warning for misuse of Respondent's email system and inappropriate communication. Petitioner was one of several employees disciplined at this time for this offense.

  4. Under well-established and uniformly enforced rules, Respondent maintained a policy of terminating any employee who received any discipline within six months after receipt of an Unsatisfactory Work Warning.

  5. On August 3, 2005--which is within six months of February 17, 2005--Petitioner was approached by an employee whom he supervised. The employee asked Petitioner for an evaluation. Petitioner complied, informing the employee that his work merited a raise, but no money was available at the time for raises.

  6. The employee took his request to Petitioner's supervisor, who conducted a meeting with the employee and Petitioner. During the meeting, she explained Respondent's policy about raises, correcting the mistaken understanding of

    Petitioner that raises were not presently available. She approved the employee for a raise. The meeting was amicable and ended in this fashion.

  7. Later in the day of the meeting, Petitioner approached the employee, playfully tapped him with a small bundle of wire wraps used to bind produce, and asked him, jokingly, why he was trying to get Petitioner into trouble. The employee felt intimidated about the incident and reported it to Respondent's supervisor.

  8. Respondent has no tolerance for workplace behavior that may be perceived as intimidating to its employees. Based on this policy, Respondent determined that it was necessary to discipline Petitioner for the incident with the employee.

  9. But for the prior incident involving the company email system, Respondent would not have terminated Petitioner. However, because the second incident occurred within six months of the earlier warning, Respondent, consistent with its policy, terminated Petitioner.

  10. There is no evidence whatsoever that Respondent terminated Petitioner due to his race or national origin. Although the reason for terminating him does not withstand much scrutiny, it is abundantly clear that the cited reason for termination does not mask an unlawful basis for termination.

    CONCLUSIONS OF LAW


  11. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569, 120.57(1), and 760.11(7), Fla. Stat. (2006).

  12. Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice to terminate an employee for reason of race or national origin.

  13. Petitioner has failed to prove that Respondent discriminated against him based on race or national origin when Respondent terminated him.

RECOMMENDATION


It is


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

DONE AND ENTERED this 7th day of June, 2007, in Tallahassee, Leon County, Florida.


S

ROBERT E. MEALE

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 7th day of June, 2007.


COPIES FURNISHED:


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

Tallahassee, Florida 32301


Alan D. Jimenez

820 Northeast 19th Terrace Fort Lauderdale, Florida 33304


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

Tallahassee, Florida 32301


Jennifer L. Price, Esquire Stearns, Weaver, Miller, Weissler

Alhadeff & Sitterson, P.A.

200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301


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: 07-001114
Issue Date Proceedings
Aug. 22, 2007 Final Order Dismissing Petition for Relief from an Unlawful Employment Practice filed.
Jun. 07, 2007 Recommended Order (hearing held May 15, 2007). CASE CLOSED.
Jun. 07, 2007 Recommended Order cover letter identifying the hearing record referred to the Agency.
Jun. 04, 2007 Notice of Ex-parte Communication.
Jun. 01, 2007 Letter to Judge Meale from A. Jimenez enclosing supportive documents to the case filed.
May 29, 2007 Notice of Ex-parte Communication.
May 29, 2007 Notice of Ex-parte Communication.
May 29, 2007 Order Granting Extension of Time.
May 25, 2007 Respondents` Exhibits (not available for viewing) filed.
May 23, 2007 Letter to Judge Meale from A. Jimenez requesting an extension of time for evidence in case filed.
May 18, 2007 Respondent Whole Foods Market`s Hearing Memorandum filed.
May 15, 2007 CASE STATUS: Hearing Held.
Apr. 06, 2007 Agency`s court reporter confirmation letter filed with the Judge.
Apr. 03, 2007 Order of Pre-hearing Instructions.
Apr. 03, 2007 Notice of Hearing (hearing set for May 15, 2007; 9:00 a.m.; Fort Lauderdale, FL).
Mar. 19, 2007 Alan Jimenez`s Response to Initial Order filed.
Mar. 15, 2007 Whole Foods Market`s Notice of Compliance with Initial Order filed.
Mar. 15, 2007 Notice of Appearance and Change of Address filed.
Mar. 15, 2007 Notice of Appearance (filed by J. Price).
Mar. 08, 2007 Employment Complaint of Discrimination fled.
Mar. 08, 2007 Notice of Determination: No Cause filed.
Mar. 08, 2007 Determination: No Cause filed.
Mar. 08, 2007 Petition for Relief filed.
Mar. 08, 2007 Transmittal of Petition filed by the Agency.
Mar. 08, 2007 Initial Order.

Orders for Case No: 07-001114
Issue Date Document Summary
Aug. 21, 2007 Agency Final Order
Jun. 07, 2007 Recommended Order Petitioner failed to prove that he was fired due to discrimination on the basis of race or national origin.
Source:  Florida - Division of Administrative Hearings

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer