The Issue Whether Respondent committed the violation alleged in Petitioner's Public Accommodations Complaint of Discrimination and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a black woman. On March 27, 2007, Petitioner went shopping at the Wal- Mart Supercenter located at 9300 Northwest 77th Avenue in Hialeah Gardens, Florida (Store). This was Petitioner's "favorite store." She had shopped there every other week for the previous four or five years and had had a positive "overall [shopping] experience." At no time had she ever had any problem making purchases at the Store. At around 5:00 p.m. on March 27, 2007, Petitioner entered the Store's electronics department to look for two black ink cartridges for her printer. In her cart were several items she had picked up elsewhere in the store (for which she had not yet paid). Because the cartridges she needed were located in a locked display cabinet, Petitioner went to the counter at the electronics department to ask for assistance. Maria Castillo was the cashier behind the counter. She was engaged in a "casual conversation," punctuated with laughter, with one of the Store's loss prevention officers, Jessy Fair, as she was taking care of a customer, Carlos Fojo, a non-black Hispanic off-duty lieutenant with the Hialeah Gardens Police Department. Lieutenant Fojo was paying for a DVD he intended to use as a "training video." The DVD had been in a locked display cabinet in the electronics department. A sales associate had taken the DVD out of the cabinet for Lieutenant Fojo. It was Store policy to require customers seeking to purchase items in locked display cabinets in the electronics department to immediately pay for these items at the electronics department register. Lieutenant Fojo was making his purchase in accordance with that policy. Two Store sales associates, Carlos Espino and Sigfredo Gomez, were near the counter in the electronics department when Petitioner requested assistance. In response to Petitioner's request for help, Mr. Espino and Mr. Gomez went to the locked display cabinet to get two black ink cartridges for Petitioner, with Petitioner following behind them. Ms. Castillo and Mr. Fair remained at the counter and continued their lighthearted conversation, as Ms. Castillo was finishing up with Lieutenant Fojo. Petitioner was offended by Ms. Castillo's and Mr. Fair's laughter. She thought that they were laughing at her because she was black (despite her not having any reasonable basis to support such a belief). She turned around and loudly and angrily asked Ms. Castillo and Mr. Fair what they were laughing at. After receiving no response to her inquiry, she continued on her way behind Mr. Espino and Mr. Gomez to the display cabinet containing the ink cartridges. When Mr. Espino arrived at the cabinet, he unlocked and opened the cabinet door and removed two black ink cartridges, which he handed to Mr. Gomez. Petitioner took the cartridges from Mr. Gomez and placed them in her shopping cart. Mr. Espino tried to explain to Petitioner that, in accordance with Store policy, before doing anything else, she needed to go the register in the electronics department and pay for the ink cartridges. Petitioner responded by yelling at Mr. Espino and Mr. Gomez. In a raised voice, she proclaimed that she was "no thief" and "not going to steal" the ink cartridges, and she "repeated[ly]" accused Mr. Espino and Mr. Gomez of being "racist." Instead of going directly to the register in the electronics department to pay for the cartridges (as she had been instructed to do by Mr. Espino), Petitioner took her shopping cart containing the ink cartridges and the other items she intended to purchase and "proceeded over to the CD aisle" in the electronics department. Mr. Espino "attempt[ed] to speak to her," but his efforts were thwarted by Petitioner's "screaming at [him and Mr. Gomez as to] how racist they were." Lieutenant Fojo, who had completed his DVD purchase, heard the commotion and walked over to the "CD aisle" to investigate. When he got there, he approached Petitioner and asked her, "What's the problem?" She responded, "Oh, I see you too are racist and I see where this is coming from." Lieutenant Fojo went on to tell Petitioner the same thing that Mr. Espino had: that the ink cartridges had to be taken to the register in the electronics department and paid for immediately ("just like he had paid for his [DVD]"). Petitioner was defiant. She told Lieutenant Fojo that she would eventually pay for the cartridges, but she was "still shopping." Moreover, she continued her rant that Lieutenant Fojo and the Store employees were "racist." "[C]ustomers in the area were gathering" to observe the disturbance. To avoid a further "disrupt[ion] [of] the normal business affairs of the [S]tore," Lieutenant Fojo directed Petitioner to leave and escorted her outside the Store. In taking such action, Lieutenant Fojo was acting solely in his capacity as a law enforcement officer with the Hialeah Gardens Police Department. Once outside the Store, Lieutenant Fojo left Petitioner to go to his vehicle. Petitioner telephoned the Hialeah Gardens Police Department to complain about the treatment she had just received and waited outside the Store for a police officer to arrive in response to her call. Officer Lawrence Perez of the Hialeah Gardens Police Department responded to the scene and met Petitioner outside the Store. After conducting an investigation of the matter, Officer Perez issued Petitioner a trespass warning, directing that she not return to the Store. At no time subsequent to the issuance of this trespass warning has Petitioner returned the Store (although she has shopped at other Wal-Mart stores in the area). While Petitioner has been deprived of the opportunity to shop at the Store, it has been because of action taken, not by any Store employee, but by Hialeah Gardens law enforcement personnel. Moreover, there has been no showing that Petitioner's race was a motivating factor in the taking of this action.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order dismissing Petitioner's Public Accommodations Complaint of Discrimination. DONE AND ENTERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 10th day of September, 2006.
The Issue Whether Respondent committed the violation alleged in Petitioner’s Public Accommodations Complaint of Discrimination filed by Petitioner on September 6, 2007, and if so, what relief should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Jacksonville area. She is married to Wayne Benedict and is the mother of Bryan Benedict. On July 23, 2007, Petitioner went to Wal-Mart to do the family’s grocery shopping. Her son, Bryan, and his friend, Adarious Pickens, also African-American, were with her. When she arrived at Wal-Mart, she proceeded to the deli counter, where she usually begins her shopping trip. On the day in question, the numbering system in the deli was broken. When operating, the numbering system dispenses tickets with numbers on them which determine which customers arrived first and who receives service first. At the time Petitioner approached the deli counter, three Caucasian customers were present and waiting for service. After the three Caucasian customers were served, another Caucasian customer approached the deli counter and was waited upon. Because Petitioner believed that the last Caucasian customer had been served out of turn, Petitioner left the deli area to find a manager. After learning that the manager had gone for the day, she was directed to a person who was “team lead.” She complained to the team lead who apologized to Petitioner. After speaking to the team lead, Petitioner then returned to the deli department and asked one of the deli associates, Jeanne Thornton, to identify the other deli associate. Ms. Thornton identified the other associate as “Trish.” Petitioner again left the deli area. At the time of this incident, Ms. Thornton and Trish were the only two Wal-Mart associates were working at the deli counter. Petitioner acknowledges that the deli appeared to be short-staffed, as she typically sees three or four associates working behind the deli counter. Several minutes later, Petitioner returned to the deli counter and requested service. Prior to this time, Petitioner waited for service, which was not forthcoming, but did not verbally request service. Ms. Thornton then waited on Petitioner, who left the deli area after she was given the food items she requested. Ms. Thornton noticed that Petitioner was angry and upset. The deli counter in question is at least 30 feet long. The deli contains both a cold food section and a hot food section. In addition, there is a lower shelf where items are for sale, which do not require the assistance of deli associates. On any given day, associates are assigned to work in either the hot or cold food sections. At the time Petitioner approached the deli counter, Trish was assigned to the deli’s hot food section, and Ms. Thornton was in the midst of filling a large cold food order. When a deli associate is assigned to cook food in the deli department’s hot food section, it is that person’s responsibility to perform duties related to the hot food. According to Ms. Thornton, “when the food comes up, it has to be temped, logged, and put in the hot bar.” These duties of an associate assigned to the hot food section of the deli take priority over helping customers. If the hot food is not properly temped, logged, and put in the hot bar, the hot food must be thrown away. On those occasions when the numbering system is not working, the deli associates rely on customers to tell them who should be waited on next. This is, in part, because the associates often turn their backs to the customers at the deli counter while they are cutting meat, etc. Food items sold from the deli counter are not intended for on-site consumption. Petitioner did not intend to consume the items purchased from the deli on the premises of Wal-Mart. No employee of Respondent made any racially derogatory or racially related comments to Petitioner. Other than Petitioner’s firm belief that she was overlooked in favor of Caucasian customers, no evidence was presented that the actions of Respondent’s associates were racially motivated.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim of public accommodation discrimination. DONE AND ENTERED this 19th day of November, 2008, 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 19th day of November, 2008.
The Issue The issues in this matter are whether Respondent, Walmart, violated section 760.08, Florida Statutes, by discriminating against Petitioner based on his race; and, if so, the relief to which Petitioner is entitled.
Findings Of Fact On March 6, 2017, Petitioner, who is Hispanic, visited the Walmart in his neighborhood in Tampa (store #5255) to make several purchases. Petitioner is a frequent customer of the store, shopping there every two to three days. After selecting several items and placing them in a cart, Petitioner proceeded to the self-checkout area. When he arrived at the self-checkout section, Petitioner found all the registers in use by other customers. So, he waited for an opening. As he stood with his cart, Petitioner observed a Walmart employee, Dipti Vora, stationed in the self-checkout area. Ms. Vora was working as the self-checkout “hostess” to assist and monitor the customers using the self-checkout registers. Petitioner was familiar with Ms. Vora who he had seen on previous visits. Petitioner recalled that they exchanged pleasantries while he waited for a free register. While he waited, Petitioner noticed another Walmart employee, who he later learned was Sara Revelia, walk up to Ms. Vora. As Ms. Revelia approached Ms. Vora, Petitioner saw her raise a finger to her eye, and then point her finger at him. Petitioner also observed Ms. Revelia give him a nasty look. Petitioner interpreted Ms. Revelia’s actions as instructing Ms. Vora to “keep an eye on him” because she suspected that he might steal something. Petitioner believed that Ms. Revelia, who appeared to be white, pointed at him solely because he is Hispanic. Petitioner expressed that he did not see Ms. Revelia point at any other customers. Petitioner particularly noted that Ms. Revelia did not point to any other white customers who were waiting in the self-checkout area. Petitioner was so upset by Ms. Revelia’s presumptuous gesture that he abandoned his cart in the self-checkout area and left the store without purchasing his items. Petitioner declared that he has never returned to that Walmart store and has no plans to ever shop there again. Petitioner was very embarrassed and disturbed by Ms. Revelia’s action singling him out to be watched. Petitioner is convinced that Ms. Revelia racially profiled him because he is Hispanic. Based on her demeanor, Petitioner declared that Ms. Revelia acted in a very arrogant and authoritative manner and prejudged his character. When questioned by Walmart at the final hearing, Petitioner conceded that he did not hear any words pass between Ms. Vora and Ms. Revelia. Nor did any Walmart employee (including Ms. Revelia) accuse him of stealing or instruct him to leave Walmart. However, Petitioner firmly believes that Ms. Revelia perceived him as a thief or a bad person who might not pay for the items he was carrying. Petitioner asserts that Ms. Revelia’s action was an “injustice,” and Walmart must take responsibility for its employee’s actions. Walmart denied that it failed to allow Petitioner access to its facility or services or took any actions based on his race. Walmart further asserts that at no time did it ask Petitioner to leave or refuse to sell him the items he wished to purchase. Walmart specifically refuted Petitioner’s allegation that an employee suspected that he was going to steal from the store or singled him out as a thief. Walmart presented the testimony of Ms. Vora, the employee who was assigned as the “hostess” in the self-checkout area at the time of Petitioner’s visit. Ms. Vora had worked in store #5255 for approximately 12 years. She was familiar with Petitioner and had regularly seen him shopping at that Tampa Walmart. Ms. Vora recalled the incident involving Petitioner. Ms. Vora also remembered the encounter with Ms. Revelia, the employee who allegedly pointed at Petitioner. Ms. Vora testified that while Petitioner was standing in the self-checkout area, another customer with a baby stroller was also waiting to use a register. Just at that moment, Ms. Revelia walked up to her and alerted her to watch the woman with the stroller. Ms. Vora explained that the woman had placed several items in the open compartment below the stroller seat. Ms. Revelia was cautioning her to ensure that the woman did not neglect to scan all the items she brought to the register, specifically including the items in the lower section of the stroller. Ms. Vora stated that Ms. Revelia was not pointing at Petitioner. Instead, she was signaling Ms. Vora to monitor the woman pushing the stroller, who was standing just ahead of Petitioner. Ms. Vora also recalled that, after Ms. Revelia walked away, Petitioner approached her and asked who was the employee who had just talked to her. At that time, Ms. Vora did not know Ms. Revelia’s name because she was visiting from another store. Ms. Revelia testified at the final hearing. Ms. Revelia is an Asset Protection Manager for Walmart. She principally works in a Walmart store in Largo, Florida. However, she does visit the Tampa store regularly as part of her area of assignment. Ms. Revelia explained that her job duties include overseeing inventory preparation and compliance at Walmart facilities, as well as assisting with the detection and apprehension of shoplifters. She was specifically trained on how to “shrink” financial losses at Walmart facilities due to theft. Ms. Revelia relayed that she was instructed to constantly watch for any suspicious behavior from Walmart customers. Ms. Revelia recalled working at the Walmart Petitioner visited on March 6, 2017. However, she did not remember talking to Ms. Vora, pointing at a customer, or seeing Petitioner while he waited in the self-checkout area. Instead, Ms. Revelia conveyed that she was primarily focused on helping store #5255 prepare for its annual inventory. Although she did not recall specifically pointing out a customer to Ms. Vora, Ms. Revelia described suspicious situations she frequently sees that cause her alarm. Such activity includes customers who wear heavy jackets in summer or carry open backpacks. In addition (and particularly relevant to this matter), Ms. Revelia is also cognizant of customers who bring in strollers that are equipped with a compartment or shelf under the baby seat. Ms. Revelia expounded that, in her experience as an asset manager, she has personally witnessed customers place goods and items in a stroller’s “undercart” and forget (either intentionally or unintentionally) to scan them at the self- checkout register. Despite not remembering the incident involving Petitioner, Ms. Revelia offered that, if she did walk by the self-checkout area and saw a stroller with items stored under the seat, she very well may have instructed the hostess to “keep an eye on” that customer. Conversely, Ms. Revelia denied that she would point at any Walmart customer simply because he or she was Hispanic. Neither would she automatically suspect that a customer would steal from Walmart because of their race. Ms. Revelia adamantly denied that she took any discriminatory action against Petitioner. As additional evidence that Walmart did not discriminate against Petitioner, Elsie Rodriguez, the store manager for store #5255, testified that approximately 70 percent of the customers who shop at her store are Hispanic. Furthermore, in light of the populace it serves, store #5255 specifically offers Spanish based foods and other products catering to the Latino community. Consequently, Ms. Rodriguez asserted that it would not make sense for Walmart, or any of its employees, to discriminate against its Hispanic customers. Walmart also maintains a Statement of Ethics and Discrimination, as well as a Harassment Prevention Policy, which prohibit discrimination by its employees based on race and national origin. Ms. Rodriguez also testified that store #5255 does not hold itself out as, nor does it include, a cafeteria, dining facility, or restaurant. Ms. Rodriguez explained that store #5255 is a “Neighborhood Market.” The store does not offer food principally for consumption on its premises. Neither does it contain an area where customers can sit and dine. Instead, all the facility sells is groceries. In response to the testimony from the Walmart witnesses, Petitioner insisted that the Walmart employees were not telling the truth. Petitioner vigorously maintained that Ms. Revelia was pointing at him and not another customer with a baby stroller. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Walmart discriminated against Petitioner based on his race. Accordingly, Petitioner failed to meet his burden of proving that he was denied full and equal enjoyment of goods or services in a place of public accommodation in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Walmart, is not a “place of public accommodation” under the facts of this case; and, even if it were, that Respondent did not unlawfully discriminate against Petitioner’s race. Petitioner’s Petition for Relief should be dismissed. DONE AND ENTERED this 10th day of July, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2018.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of race and sex in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. McRath is an African-American female. On August 30, 2008, around 7:30 p.m., Ms. McRath visited One Stop Food Market near her home to get a cup of coffee. She was a customer of One Stop Food Market on many occasions. One Stop Food Market was once owned by her former employer, and she was a customer during the ownership by her former employer and continued after her former employer no longer owned it. One Stop Food Market is located in the southwest area of Belle Glade, Florida, and was owned at all times material hereto, and is currently owned, by Mohammed Uddin. Mr. Uddin owns four other similar food markets in the Belle Glade area. One Stop Food Market is open to the general public. Approximately 99 percent of the customers of One Stop Food Market are African-American. Ms. McRath had seen Mr. Uddin in One Stop Food Market on several occasions. However, she was not aware that he owned it. Mr. Uddin had also seen Ms. McRath in One Stop Food Market on several occasions. On the evening of August 30, 2008, after Ms. McRath had obtained her coffee, she proceeded to the counter to pay for it. A tall, dark-haired male, with dark glasses, was behind the counter. She had not seen him at One Stop Food Market before that evening. Ms. McRath gave the man a dollar for the coffee; he took the dollar and threw the change at her, with the change hitting the floor, but not her. Ms. McRath was in a state of shock. She had never had such an incident like that happen to her at One Stop Food Market. After throwing the change, the man reached under the counter with his hand. Not knowing what he was reaching for, Ms. McRath turned to leave the store, and the man said to her, “Get your damn ass out of my store. All American Niggers are nasty, get out of my store.”1 An inference is drawn and a finding of fact is that the man who was behind the counter was an employee of One Stop Food Market. He did not testify at the hearing. Being in a state of shock, Ms. McRath departed One Stop Food Market. She has never returned to the store. Ms. McRath did not report the incident to Mr. Uddin, to any other employee of One Stop Food Market or to any law enforcement officer. However, the day after the incident, she contacted an attorney, who advised her as to what to do. Ms. McRath filed a public accommodation discrimination complaint against One Stop Food Market with the FCHR on December 2, 2008. One Stop Food Market is equipped with digital security cameras inside and outside of the store, which have audio in addition to video capabilities. The digital recordings are maintained for 15 days and then are automatically erased by the system. Because the incident was not reported, the digital recordings were automatically erased and were, therefore, not retained. Mr. Uddin was not aware of the incident. He became aware of the incident several months later only after being contacted by the FCHR, which was after December 2, 2008. Mr. Uddin questioned his employees regarding the incident, and none of the employees were aware of the incident. One of Mr. Uddin’s employees, Siragul Islam, who has known Mr. Uddin for many years, who has worked at One Stop Food Market for 12 years, and who would have been working at One Stop Food Market at the time of the incident, was not aware of the incident. Mr. Islam is unable to recall the evening of August 30, 2008, however; he does not recall any such incident having occurred. Further, he does not recall any male, who was tall and wearing dark glasses, working at One Stop Food Market on August 30, 2008. Ms. McRath’s testimony is found to be more credible than Mr. Islam’s testimony. Neither Mr. Uddin nor Mr. Islam was inside One Stop Food Market at the time of the incident.2 Ms. McRath had always been treated by Mr. Uddin with “kindness” when she visited One Stop Food Market. Ms. McRath had not been subjected to unfavorable treatment by Mr. Islam whenever she was at One Stop Food Market. On June 5, 2009, the FCHR issued a Notice of Determination [for] Cause, having determined that there was reasonable cause to believe that discrimination had occurred. Among other things, the Notice of Determination [for] Cause advised Ms. McRath that she had the option of filing a request for an administrative hearing by filing a Petition for Relief within 35 days of the Notice of Determination [for] Cause or of filing a civil action within one year of the date of the Notice of Determination [for] Cause. Ms. McRath timely filed a Petition for Relief, requesting an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that One Stop Food Market committed a discriminating public accommodation practice against Catherine McRath in violation of the Florida Civil Rights Act of 1992, as amended, and prohibiting One Stop Food Market from engaging in any further discriminatory public accommodation practice. DONE AND ENTERED this 13th day of November, 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 13th day of November, 2009.
