The Issue The issue is whether the Respondent discriminated against the Petitioner on the basis of his disability, and whether the Respondent’s discharge of the Petitioner from employment was unlawfully based upon his disability, in contravention of Section 760.10, Florida Statutes (2003), and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. Section 1201 et seq.
Findings Of Fact The Petitioner worked for the Respondent from September 17, 1999 through July 9, 2002. At the time of his termination from employment on July 9, 2002, the Petitioner worked in the Respondent’s Pensacola, Florida, Store No. 1605 under the supervision of Front End Assistant Manager Jackie Lewis and Store Co-Manager Rodney Snyder. The Petitioner’s last position with Wal-Mart was as a “People Greeter,” working eight-hour shifts. The Petitioner suffers from diabetes. On his employment application, the Petitioner indicated that he was able to work any scheduled hours and was seeking full-time employment. The Petitioner’s diabetes did not interfere with his ability to secure full-time employment. The Petitioner began his employment with the Respondent in Pensacola, Florida, Store No. 1222 as a maintenance associate, handling janitorial tasks. During the time he worked as a maintenance associate the Petitioner had his diabetes “under control.” The Petitioner completed an ADA “Job Matrix” form provided by the Respondent, on which he represented that he was able to perform all essential functions of his position without the need for any accommodation. No mention was made by the Petitioner at that time of his diabetic condition or resulting need for an accommodation. The Petitioner had “run-ins” with store management during his tenure as an employee of the Respondent. The Petitioner had a “run-in” with a Meat Department Manager over an assignment to mop-up a sugar spill, which the Petitioner refused to do. The Petitioner complained about supplies, or the lack thereof, at the store. The Petitioner admitted that there were tasks he simply refused to perform. The Petitioner had several problems with his co- workers and managers. On August 28, 2001, the Petitioner’s poor work attitude was cited on his annual performance appraisal, which was termed “below expectations.” During the course of his employment with the Respondent, the Petitioner was disciplined on several occasions through Wal-Mart’s “coaching” process. On February 17, 2001, the Petitioner received a “written coaching” for his failure to perform assigned job tasks, and he was informed that he needed to improve his job performance. Neither the annual performance rating nor the “coaching” session was caused by the Petitioner’s medical condition. On July 31, 2001, the Petitioner received a more severe form of coaching, a “Decision-Making-Day.” The coaching indicated that the Petitioner failed to complete jobs in a timely manner, questioned the authority of his managers, and had trouble following the directions of supervisors. The Petitioner was informed that if his performance did not improve he would be terminated. The Petitioner was given a day off to consider whether he wanted to continue to work for the Respondent and to prepare a performance action plan. In his performance action plan, the Petitioner indicated he would be more productive and approach his work with a more positive attitude. Following his performance action plan, the Petitioner requested and was granted a transfer to the position of "People Greeter," who works at the front of the store and welcomes customers as they enter the store. A "People Greeter" also performs certain tasks related to security. The Petitioner claimed to have given the Respondent’s personnel office a doctor’s note on June 27, 2002, indicating that the Petitioner needed a break every two hours in order to properly regulate his medication. The note made no mention of the Petitioner’s diabetic condition. The Respondent disavows any knowledge of receipt of a note concerning the Petitioner’s medical condition and need for frequent breaks. The Petitioner claimed that he was not always given the breaks he needed to regulate his medication. Given the nature of retail operations, in terms of the ebb and flow of shoppers entering the store, regular breaks are not always possible. Prior to the alleged submission of the doctor’s note on June 27, 2002, the Petitioner received coaching from his supervisors. On June 22, 2002, the Petitioner received verbal coaching from Ms. Jacqueline Lewis concerning his lack of respect for Customer Service Managers and other store management. Ms. Lewis received a statement from the Petitioner’s trainer indicating he refused to follow Wal-Mart policies for the "People Greeter" position. Ms. Lewis received written complaints from other co- workers of the Petitioner concerning his performance as a "People Greeter." All of these statements were factors in Ms. Lewis’ evaluation of the Petitioner’s performance as a "People Greeter." On the day of his termination, the Petitioner shouted 75-feet across the front of the store to the Customer Service Manager, requesting that she contact Ms. Lewis about issues taking place in the front of the store. He called a second time when his first request went unheeded. This behavior took place in front of store customers. Based upon the shouting incident, the Petitioner’s violation of policies, and the written complaints from co- workers, the Respondent terminated the Petitioner’s employment on July 9, 2002. The specific reasons given for the Petitioner’s termination were his inability to perform his job and for his not being respectful of other associates. The Petitioner believes that his co-workers and supervisors were aware of his diabetes. No co-workers or supervisors of the Petitioner testified at hearing that they were aware of the Petitioner’s diabetes. Ms. Lewis, the Front End Assistant Manager in the store, was not aware of the Petitioner’s diabetes. Ms. Carolyn Miller, the head Customer Service Manager for the store, was not aware of the Petitioner’s diabetes. Mr. Snyder, the store co-manager, was not aware of the Petitioner’s diabetes. Upon termination from employment with Wal-Mart, the Petitioner secured a Florida security guard license on his first try and obtained work as a security guard. The Petitioner was able to work a full eight-hour shift while employed by the Respondent. The Petitioner was able to perform the duties of his maintenance position when he held that job. At the time of his termination, the Petitioner was actively seeking a new position with Wal-Mart in the heating and ventilation area. When the Petitioner was unable to perform tasks associated with his employment, he attributed this to “old age,” and not his diabetes. The Petitioner planned to open his own steam cleaning and air conditioning repair business while he worked at Wal-Mart and felt physically able to do so. Since his termination from Wal-Mart, the Petitioner has secured gainful employment as a security guard at various factories, involving activities such as walking and driving trucks. The Petitioner has plans to rewire his house by himself. The Petitioner’s diabetes is kept in control by medication, and he does not require insulin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the Respondent did not discriminate against the Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of April, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 20th day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John M. Dickson 7870 Castlegate Drive Pensacola, Florida 32534-4555 Richard L. Ruth, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner has been subjected to employment discrimination by termination, allegedly based upon race, and by retaliation, for filing a charge of discrimination.
Findings Of Fact On or about November 29, 2005, the Petitioner applied for a job as a part-time sales clerk with the Respondent. The Petitioner indicated that she was available to work on Sundays, Mondays, and Wednesdays from 7:00 a.m. to 5:00 p.m. This was because she was already employed in another job. During the course of the hiring and orientation process, the Petitioner learned of the policies of the Respondent against harassment and discrimination of all types. She was instructed in those policies and acknowledged receipt of them. The Petitioner began her employment with the Respondent on December 27, 2005, as a part-time sales clerk at a convenience store (No. 31) in Milton, Florida. When she began her employment, the Store Manager was Bob Kukuk. The Assistant Managers for that store were Michael Morris and "Cynthia." There were also two other sales clerks, Cherie Dorey and Lugenia Word. Both Ms. Dorey and Ms. Word are white. Soon after the Petitioner was hired, Mr. Kukuk announced his resignation as store manager. On January 31, 2006, the Petitioner attended the new employee training session in Milton, Florida, which included training in the equal employment and non-harassment policies of the Respondent. During the question and answer session, concerning the harassment and discrimination portion of the training, the Petitioner told Training Manager, Robert Birks that she had a problem at her store involving a conflict with another employee. She felt that she was being required to do things that other employees were not required to do. Mr. Birks advised Ms. Myles that she should provide a written statement concerning her complaints to her supervisor and he provided her with pen, paper, and envelope to do so on the spot. The Petitioner wrote out a note and returned it to Mr. Birks in a sealed envelope and he gave the envelope to the District Advisor, Jamie Galloway on that same date. After reading the Petitioner's note, Ms. Galloway met with Petitioner on that same day to discuss her complaints. The Petitioner informed Ms. Galloway that Michael Morris, an Assistant Manager at her store, was telling employees that he was going to be the new store manager. The Petitioner told Ms. Galloway that she felt Morris did not like her because of her race. Ms. Galloway informed the Petitioner that, in fact, Morris would not be selected as store manager for store No. 31 and that Mr. Kukuk would be replaced with someone else other than Morris. She also informed the Petitioner that the Respondent had a zero tolerance for harassment and discrimination and that if the Petitioner had any problems with Mr. Morris that she should personally contact Ms. Galloway. In her capacity as District Advisor, Ms. Galloway supervised the day-to-day operations of a number of stores. In fact, during the above-referenced time period, Ms. Galloway was supervising her own normal district area, as well as that of another district manager who had resigned. The three sales clerks at store No. 31, Ms. Dorey, Ms. Word, and Ms. Myles were all reprimanded ("written-up") in February 2006, because of their cash registers being "short," or containing insufficient funds at the close of the business day or shift. The Petitioner was also counseled for insubordination on this occasion because she told Ms. Word, in front of customers, that she was not going to take out the trash because Mr. Morris and Ms. Dorey would be into work soon and "they never did anything anyway." Ms. Word confirmed that Ms. Myles had made that statement to the store management. Sometime in February 2006 the Petitioner expressed the desire to transfer to a store on the West side of Pensacola because she was no longer employed in her other job in the Milton area. She therefore wanted to work for Tom Thumb at a location closer to her residence. The Manager, Mr. Kukuk at that time, informed Ms. Galloway of this wish on the part of the Petitioner. Ms. Galloway contacted the District Advisor for the West side of Pensacola, Bill Jordan, to inquire whether any positions were available that would fit the Petitioner's schedule. Ms. Galloway followed up on the question with Mr. Jordan several days later, but Mr. Jordan said that he had no employment positions available at that time. The Petitioner then filed her Charge of Discrimination on February 16, 2006, (her first charge). In her Discrimination Charge the Petitioner maintains that she was constantly "getting written-up" for unnecessary matters by Mr. Morris, the Manager. In fact, however, she was written-up only once while Mr. Morris was the Assistant Manager of the store, as were Ms. Word and Ms. Dorey, the other clerks. Both Ms. Word and Ms. Dorey are white. Patricia Merritt was installed as the new store manager at store No. 31 on February 24, 2006. Ms. Merritt has worked for the Respondent for 17 years as a clerk, assistant manager, and manager. Ms. Merritt had the responsibility of managing the store, ascertaining that all duties involved in store operation were accomplished and supervising and monitoring the performance of other store employees. She imposed discipline, including termination if necessary, and also hired employees. Mr. Morris failed to appear for work, beginning the first week of March 2006. He was terminated from his employment with the Respondent on March 9, 2006. In February or early March, Ms. Merritt informed Ms. Galloway that she had overheard another employee referring to the Petitioner having filed a claim against the Respondent because of Mr. Morris. Prior to that time Ms. Merritt was unaware of any problem between Mr. Morris and the Petitioner. Between the time that Ms. Galloway met with the Petitioner on January 31, 2006, and the time she heard from store manager Merritt that the Petitioner was still having a problem with Morris in late February or early March, the Petitioner had not contacted Ms. Galloway to report any problem. After being advised of the matter by Ms. Merritt, Ms. Galloway advised Ms. Merritt to contact the Petitioner to find out her version of the events which occurred and to offer her a transfer to any one of five stores that Ms. Galloway was responsible for on the East side of Pensacola. Ms. Merritt met with the Petitioner and offered her the transfer opportunity, which the Petitioner refused at that time because she had a mediation pending. When Ms. Merritt began duties as store manager a misunderstanding occurred about the Petitioner's schedule. Ms. Merritt understood, mistakenly, that the Petitioner was available for fewer hours of work than she actually was. This resulted in the Petitioner being scheduled to work fewer hours for two or three weeks. Ms. Merritt was then informed of the Petitioner's actual scheduling availability by someone from the management office. On March 20, 2006, the Human Resource Manager, Sheila Kates, met with the Petitioner. The Petitioner complained about her reduced hours which Ms. Kates discussed with Ms. Merritt. As soon as Ms. Merritt realized that she had misunderstood the Petitioner's hours of availability she increased the Petitioner's hours on the work schedule. The Petitioner agreed that Ms. Merritt had been unaware about any problem between the Petitioner and Mr. Morris, when she reduced the Petitioner's work hours schedule because of her misunderstanding of the Petitioner's availability. Ms. Kates again offered to allow Ms. Myles to transfer to another store if she wished (apparently to help her avoid her apparent conflict with Mr. Morris), but the Petitioner again declined. Ms. Galloway, as part of her duties as District Advisor, conducted store inventory audits. She conducted a store inventory audit for Store No. 31 on May 30, 2006. During that audit she discovered that the store had a significant inventory shortage. Ms. Galloway therefore scheduled a "red flag" meeting the next day with each employee at the store, as well as meeting with them as a group to discuss inventory control. All of the employees at the store were counseled regarding the inventory shortage, including Ms. Myles and Ms. Word. Ms. Word, who is white, was issued a written reprimand on March 24th and April 24th, 2006, because of cash shortages. Ms. Word was subsequently terminated on June 16, 2006, for causing inventory shortages by allowing her friends to come in and take merchandise out of the store without paying for it, as well as for excessive gas "drive offs," or instances where people pumped gas into their vehicles and failed to pay for it. The Petitioner was given a $1.00 per hour raise by Ms. Merritt on or about April 2006. Ms. Merritt also changed the Petitioner from a part-time to a full-time employee in May 2006. This change enabled the Petitioner to become eligible for employee benefits. Ms. Merritt also, however, reprimanded the Petitioner for a cash shortage on July 14, 2006. The Petitioner admitted that her cash register was $48.00 dollars short on that day. The Petitioner complained to Ms. Galloway sometime in July of 2006 that Mr. Morris, the former store manager, and no longer an employee, had been vandalizing her car when he came to the store as a customer. Although these allegations were uncorroborated at that time, Ms. Galloway advised the Petitioner to call the police about the matter and to contact Ms. Kates directly, in the Human Resources office, if there were any more such incidents. The Petitioner filed a retaliation claim against the Respondent on August 7, 2006. Ms. Merritt had been considering the Petitioner for promotion to assistant store manager. The Petitioner completed a background check authorization for that position on September 19, 2006. Mark Slater is a Regional Manager for the Respondent. His duties include supporting the District Advisor's position, which includes recruitment, hiring and training of managers, reviewing sales trends, and reviewing any other financial trends, such as cash shortages, "drive offs" and inventory losses. In mid-October 2006, in the course of a routine review of reports from Store No. 31, Mr. Slater became aware of a possible problem regarding excessive gasoline drive offs, and an unusual purchase-to-sales ratio. Shortly after his review of those reports, Mr. Slater went to Store No. 31 to review the store's electronic journal. The electronic journal contained a record of all the store transactions. In his review of that journal, he focused on "voids," "no sales," and "drive offs," which could explain the irregularities that he had observed in his initial review. In his review of the "voids" at store No. 31 during the period in question, Mr. Slater noted quite a few voids for cigarette cartons, for large amounts, in a very short period of time. Specifically, in the course of seven minutes, he observed voids in the total amount of $406.23. He found this to be highly irregular and suspicious. Mr. Slater also looked at the drive-offs, because he had noticed some trends on that report as well. In reviewing drive-offs, he noticed that the same employee number was involved in both the voids and the drive-off transactions. Mr. Slater noted in his review that one drive-off was held on a void and then brought down as a drive-off, which appeared suspicious to him. Mr. Slater than matched up the electronic journal transactions with the security video tape that corresponded with that journal entry. In observing the video tape, Mr. Slater identified the transaction entered as a drive-off, but saw from the video tape that a customer had in fact come in and paid for the gas in question with cash. When he began his review Mr. Slater did not know which employee had the employee number that was used in association with the voids and the gasoline drive-offs. However, after he had concluded his investigation, he researched that number and found out that it was the number assigned to the Petitioner. Mr. Slater thus knew that the Petitioner had voided the drive- off transaction, as shown in the electronic journal, while the video tape showed that the Petitioner had actually served the customer who, in fact, did not drive-off without paying, but had paid $20.00 in cash for the gasoline in question. When she was asked about the security video showing the Petitioner accepting the $20.00 for the transaction which she had entered as a gas drive-off, the Petitioner responded that she did not recall it. Mr. Slater concluded that the Petitioner had not properly handled the transaction and took his findings to the Human Resources Manager, Sheila Kates. After consulting with Ms. Kates, the decision was made to terminate the Petitioner's employment. Prior to making his investigation and prior to making his conclusions, Mr. Slater was unaware of any issues between the Petitioner and Michael Morris. None of his findings and decisions regarding the situation with the Petitioner's voids and drive-offs had anything to do, in a retaliatory sense, with any issues or complaints the Petitioner might have had against Michael Morris or to the Respondent concerning Michael Morris. After being discharged for related types of conduct, neither Ms. Lugenia Word, who is white, nor the Petitioner, Ms. Myles, are eligible for re-hire by the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the charges of discrimination and retaliation at issue in their entirety. DONE AND ENTERED this 29th day of October, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 29th day of October, 2007. COPIES FURNISHED: Latarsha Myles 2103 Haynes Street, Apt. C Pensacola, Florida 30326 Cathy M. Stutin, Esquire Fisher & Philips LLP 450 East Las Olas Boulevard, Suite 800 Ft. Lauderdale, Florida 33301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Petitioner is an Hispanic male who was employed as a sales host in the pastry department of the Respondent, Les Chefs de France, a restaurant located in the French Pavilion of Epcot Center at Walt Disney World. On August 12, 1983, the Petitioner and another employee of the Respondent, Mr. Kenneth Day, a non-Hispanic, were involved in a fight in Respondent's cooler, a refrigerated room located on the Respondent's premises. Ms. Brenda Kennedy was working in the Respondent's salad department at the time and she and another employee, Charles Hammel, were present in the cooler and witnessed the fight. Mr. Day had entered the cooler to pick up some supplies and was in the process of taking a tray out of a tram or rack when the Petitioner walked into the cooler and peremptorily told Day to get out of his way. When Day requested that the Petitioner wait until he was finished, the Petitioner shoved the tray back into the tram and pushed Day towards the back of the cooler. The Petitioner then began hitting Day with his fists. Francois Fourreau, the executive chef for the Respondent, heard a noise in the cooler at that point, looked through the window and saw Day holding the Petitioner and the Petitioner throwing punches at Day. Fourreau entered the cooler, separated the two men and directed them to leave the place of employment immediately. The Petitioner reported to the Walt Disney World infirmary and told the nurse to examine him, that he had been assaulted by another employee. A medical record prepared by that nurse indicated that the Petitioner suffered a laceration on his right hand and abrasions on his left arm. (Petitioner's composite exhibit 1 in evidence). Walt Disney World security was notified of the incident. Written statements regarding their versions of the incident were prepared by the Petitioner, Kenneth Day, Brenda Kennedy, and Francois Fourreau. Copies of them were provided to Bernie Juban, the Respondent's general manager. (See Respondent's exhibits 1 and 3 in evidence). On August 13, 1983, John Thall, who was the -assistant manager of food and beverages for the Respondent, met with Juban to discuss the incident. After reviewing the written statements, the two men decided that both Petitioner and Mr. Day should be terminated from employment in accordance with the established, consistent company policy which prohibited fighting on the job. The Petitioner was notified of this decision by a letter signed by Juban dated August 15, 1983. Day received a similar termination letter. The Petitioner acknowledges the existence of the company policy which provides that fighting may result in termination of all parties involved. This policy is contained in the employee policy handbook, which was in existence at the time of the incident and was given to all employees, including the Petitioner, at the time of their hire (Respondent's exhibit 2 in evidence). No employee who instigated or actively participated in an altercation during restaurant hours has been allowed to continue in the employ of the Respondent according to this policy which was shown to be consistently enforced. A previous incident had occurred between Mr. Fourreau and Eduardo Davilla, in which Davilla began punching Fourreau, his supervisor, in a disagreement over a work assignment. This altercation resulted in Davilla's termination, although Fourreau was not disciplined. Petitioner references this as an instance of Hispanics being discriminated against by the Respondent in favor of French Nationals employed by the Respondent. In that instance, however, Fourreau did not instigate nor actively participate in the altercation and thus the policy was not applicable to him. He simply put his arm in front of his face to protect himself. Mr. Thall had witnessed this incident, intervened in it, and stopped it by restraining Mr. Davilla from behind. This incident is further explained in Respondent's exhibit 5 in evidence. Prior to August 12, 1983, Mr. Day had threatened or in some other manner had an altercation with a supervisor, Christine Grassiot. Mr. Day was not disciplined by the Respondent for that incident. After the Respondent received the notice regarding the alleged discrimination in the instant case, Ms. Grassiot prepared a statement indicating that Mr. Day was only trying to irritate her at the time and that the episode was a totally personal matter between the two of them. The Respondent had no prior knowledge of this incident until the Petitioner alleged it in this cause as a basis for trying to show selective enforcement of the above policy. Prior to August 12, 1983, Day also reportedly had a disagreement of some sort with another employee of the Respondent, Kiki Babalagua, apparently involving him bumping into her with a "sheet pan" in the restaurant. Ms. Babalagua informed Brenda Kennedy of the incident and Day explained to Kennedy that he had accidentally bumped into her and apologized for it. In any event, this was not a fight or altercation as contemplated by the above-mentioned policy. Both Kennedy and Fourreau established that Ms. Babalagua was a difficult employee in terms of her personal relations with others and was "hard to get along with." She was later transferred to another location at her own request because she wanted to broaden her knowledge of the restaurant business and learn to work with pastries. Prior to August 12, 1983, Jean Luc Nichols, an employee of the Respondent working in a test kitchen at Disney Central Foods, was transferred by the Respondent at the personal request of a Walt Disney World manager, Mr. John Cardone, apparently to avoid a personality conflict. There is no evidence to show that Ms. Nichols was transferred because of a fight or other altercation. Finally, Petitioner acknowledges that the phrase "les imigres" translates in English as "the immigrants" and is not a standard cultural slur in the French language. Additionally, the testimony of Mr. Fourreau refuted Petitioner's allegation that this phrase had assumed a particular derogatory or discriminatory meaning among employees and staff at the restaurant.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the arguments of the parties, it is, therefore RECOMMENDED that the petition for relief filed by the Petitioner, Leonardo A. Zapata, be DISMISSED. DONE and ORDERED, this 25th day of July, 1986 in Tallahassee, Florida. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1986. APPENDIX Petitioner's Proposed Findings of Fact Paragraph I : accepted, but not material to resolution of the material issues presented. : rejected as irrelevant. : rejected as contrary to the preponderant evidence. (d): rejected as irrelevant. : accepted, but irrelevant. : rejected as contrary to the preponderant evidence. (a): rejected as constituting argument and not supported by the evidence. (b): rejected as constituting argument and discussion of evidence and testimony. (a): rejected as immaterial.- (b): accepted but immaterial in the full context of the witness's testimony. (c): (same as (b). : rejected as not supported by record evidence. (a): accepted, but not supportive of Petitioner's position. : rejected as contrary to the greater weight of the evidence. : (same as (b)) (a): rejected as not supported by the greater weight of the evidence. : accepted, but irrelevant to resolution of the material issues presented. : accepted, but immaterial. (d): accepted, but immaterial. (e): accepted but not dispositive in itself. (f): rejected as to its purported import; merely argument. : rejected as not supported by preponderant testimony and evidence. : accepted, but immaterial to resolution of the issues at bar. : (same as (g) above.) Respondent's Proposed Findings of Fact Paragraph 1. - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted Copies furnished: Leonardo A. Zapata Post Office Box 1934 Kissimmee, Florida 32742 Susan K. McKenna, Esquire Post Office Box 60 Orlando, Florida 32802 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue Whether Petitioner, Michele Edwards, was subject to an unlawful employment practice by Respondent, Publix Supermarket, based on her race, 1 All statutory references are to Florida Statutes (2019), unless otherwise noted. color, sex, and national origin, as well as by retaliation, in violation of the Florida Civil Rights Act.
Findings Of Fact Publix is a supermarket chain and food retailer with over 800 locations in the State of Florida. Publix hired Petitioner on September 23, 2014. Petitioner resigned on January 11, 2019. Petitioner spent all but the last month of her Publix career working at Store No. 1215, located in Venice, Florida. Petitioner is of East Indian (Asian) descent. She also has a dark complexion. Publix initially hired Petitioner as a part-time cashier working up to 35 hours a week. As a part-time cashier, Petitioner asserts that she delivered premier customer service. Publix does not dispute that Petitioner consistently provided quality services to its customers. After serving as a cashier for approximately six months, Petitioner’s responsibilities expanded to include working a few hours a week at the “Apron’s” station. The Apron’s is a small kiosk, with a counter, situated inside the store. There, a Meals Clerk cooks, prepares, and presents dining 2 By requesting a deadline for filing post-hearing submissions beyond ten days after the final hearing, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). 3 Petitioner also filed a number of post-hearing exhibits, which were not accepted into evidence and were not considered when drafting the Recommended Order. The undersigned’s factual findings are based solely on the evidence and testimony admitted during the final hearing. and meal samples for Publix customers. The Apron’s for Store No. 1215 is equipped with two refrigerated cases, a microwave, and an oven. Petitioner started working at the Apron’s by filling in for and supporting the Apron’s full-time Meals Clerk, Eileen Williford. Only one Publix associate worked at the Apron’s at a time. Therefore, Ms. Williford and Petitioner never occupied the Apron’s during the same hours. Because Apron’s associates never worked at the same time, they communicated with each other through handwritten notes left between shifts. These notes typically concerned the preparation of Apron’s recipes, as well as the Apron’s station’s food supplies, organization, and the condition of the Apron’s appliances and cutlery. As described by Petitioner, the note taking/leaving system with Ms. Williford did not go well. At the final hearing, Petitioner presented photocopies of a number of handwritten notes she received during her time in the Apron’s. Petitioner did not care for the context or implications from several of Ms. Williford’s messages. Between October 2017 and April 2018, Ms. Williford commented on the lack of cleanliness of the microwave and oven due to Petitioner’s alleged inattentiveness, as well as on Petitioner’s inferior cooking and preparation techniques. Ms. Williford also instructed Petitioner how to set up the kiosk. Petitioner found Ms. Williford’s notes condescending and rude. They made her feel “belittled” and “like an idiot.” Petitioner further believed that Ms. Williford falsely accused her of leaving the Apron’s in a messy condition. (Petitioner also left notes for Ms. Williford complaining that she found the Apron’s in an ill-kept condition when she assumed her shift.) The notes Ms. Williford and Petitioner exchanged did not relate to Petitioner’s race, color, or national origin. Towards the end of 2017, Petitioner informed Wayne Bargdill, the Store Manager for Publix Store No. 1215, of the communication issues she was experiencing with Ms. Williford. Mr. Bargdill became the Store Manager of Store No. 1215 around April 2016. He remained the Store Manager until Petitioner departed the store in December 2018. Petitioner reported to Mr. Bargdill that she did not appreciate Ms. Williford’s “unwelcomed” comments. Petitioner further expressed that the note-leaving process was very stressful, and she did not wish to continue the practice. Petitioner also placed the blame on Ms. Williford for leaving the Apron’s space in a disorderly condition. Following Petitioner’s complaints, Mr. Bargdill recognized that Petitioner and Ms. Williford were not getting along. Mr. Bargdill characterized the dispute as two employees “bickering” about the cleanliness of appliances and dishes. To address the situation, Mr. Bargdill expressly directed Petitioner and Ms. Williford to cease all note passing. In addition to the note issues, Petitioner alleged that between October 2016 and March 2018, she heard Ms. Williford direct several offensive statements at Publix customers. Petitioner accused Ms. Williford of referring to one Middle Eastern customer as a “Dot-head,” and that another customer “reeked of curry.” Petitioner further testified that she had heard from another person in the store (but did not witness) that Ms. Williford told an Asian customer that the Apron’s “is not a buffet.” At the final hearing, Petitioner claimed that Ms. Williford made at least five such comments about Publix’s customers. On April 25, 2018, Petitioner met with Mr. Bargdill to discuss Ms. Williford’s insulting comments about Indian and Asian customers. Petitioner expressed that she found these remarks offensive because of her own Asian background. Mr. Bargdill confronted Ms. Williford about Petitioner’s allegations. Ms. Williford denied making any such disparaging statements to or about Publix customers. Nevertheless, Mr. Bargdill took the opportunity to instruct Ms. Williford not to make any comments that could be interpreted as racially derogatory or inflammatory. Mr. Bargdill also located and spoke to Vickie Va, an alleged target of one of Ms. Williford’s comments. He apologized for any untoward treatment by store employees. Petitioner called Ms. Va to testify at the final hearing. Ms. Va, however, hastily and repeatedly voiced that she “did not recall” hearing any such statements. Also during the April 25, 2018, meeting, Mr. Bargdill took the opportunity to speak with Petitioner about her interest in promotion opportunities. At that time, Mr. Bargdill believed that the store’s Deli Department offered Petitioner the best chance to obtain full-time employment. Therefore, Mr. Bargdill suggested that Petitioner consider transferring to a current opening in the Deli. Mr. Bargdill explained to Petitioner that the transition into a full-time job with Publix would require her to submit a Registration of Interest form (“ROI”). In April 2018, Petitioner was still classified as a part-time cashier. Consequently, Petitioner had to transfer into a full-time position, in order to work a full-time schedule. At the final hearing, Mr. Bargdill relayed that completing the ROI process takes approximately four weeks. After the associate fills in the ROI, the store manager (Mr. Bargdill) forwards it to the store’s district manager and requests a change in the associate’s job classification. Once the ROI is approved, the associate is authorized to move to a full-time position. Petitioner, however, was reluctant to accept Mr. Bargdill’s proposal. She was uncertain that she wanted to take on a full-time schedule. Consequently, Petitioner told Mr. Bargdill that she was not interested in pursuing the Deli position at that time. On the other hand, Petitioner expressed that she enjoyed working in Apron’s and would consider becoming a full-time Apron’s Meals Clerk. Mr. Bargdill informed her, however, that Store No. 1215 did not have an opening for another full-time Apron’s employee. Nevertheless, following her discussion with Mr. Bargdill, Petitioner decided to complete an ROI for a Deli Clerk position. She filled out an ROI during the April 25, 2018, meeting. Mr. Bargdill subsequently forwarded her ROI to the district manager. Petitioner’s ROI became effective on May 26, 2018, at which point Mr. Bargdill was able to formally offer Petitioner a path to full-time employment in the Deli Department. On April 11, 2018, while Petitioner struggled in working with Ms. Williford, Petitioner also received her Associate Performance Evaluation for the period of October 2017 through February 2018. (Publix prepares an evaluation for each associate every six months.) Petitioner’s Performance Evaluation scored her on 13 factors. Her supervisor also commented on each score. In the Publix evaluation rating scheme, Role Model is the top level, followed by Exceeds Expectations, Meets Expectations/Successful, Needs Improvement, and then Unacceptable. For this evaluation, Petitioner graded out as Exceeds Expectations. Petitioner was disappointed that she did not receive the top rating of Role Model, which she scored in her previous Performance Evaluation. Petitioner’s supervisor, Desmond James, completed her evaluation. At Petitioner’s request, Mr. Bargdill and Mr. James met with her to review her evaluation. During their meeting, Petitioner expressed that that she disagreed with two comments that Mr. James wrote regarding her performance. Petitioner objected to the sentence in the “Associate Relations” factor that she should “[w]ork on dealing with conflict calmly, directly, and effectively.” Petitioner was also bothered by a line Mr. James included in the “Work Space Organization” factor which stated, “just make sure there is no room for other [sic] to have to pick up left over slack [at the Apron’s counter].” Petitioner believed that these statements made her look like a bad employee and implied that she needed to work on handling confrontation in a more effective manner. After hearing her objections, Mr. Bargdill agreed to amend Petitioner’s Performance Evaluation by marking through the line “just make sure there is no room for other [sic] to have to pick up left over slack.” Mr. Bargdill wrote next to it, “This last line should not have been put in the evaluation.” Petitioner then requested that Mr. Bargdill submit her amended Performance Evaluation to Publix corporate to be included in her official record. Mr. Bargdill responded that, because his strikethrough did not change her overall rating of Exceeds Expectations, he was not inclined to forward the revised evaluation to Publix corporate. Instead, he intended to maintain her Performance Evaluation in her “local” personnel records at Store No. 1215. Petitioner was not satisfied with Mr. Bargdill’s decision. Despite her reduced rating, however, at the bottom of her evaluation she wrote, “thank you for everything!” Petitioner explained that she wanted Publix to know that she was grateful for her employment opportunity. Based on her Exceeds Expectations rating, Petitioner received a $.25 increase in her hourly wage to $12.25 an hour. Her raise became effective on March 24, 2018. Also during that time, on or about April 20, 2018, Petitioner emailed a formal complaint alleging “Racial Harassment and Discrimination” at the hands of Ms. Williford and two other Publix associates, to Neil Vafeas, a Publix Retail Associate Specialist. In his role, Mr. Vafeas serves as a human resources investigator or specialist. He is the human resources contact person for Publix’s territory from Bradenton to North Fort Myers, which includes Store No. 1215. As part of his responsibilities, Mr. Vafeas serves as the contact person for Publix associates should they ever feel mistreated, harassed, discriminated against, or have concerns or questions related to their employment. Petitioner followed her email with a phone call to Mr. Vafeas on or about April 23, 2018. During her call, Petitioner reported the offensive statements she heard from Ms. Williford. Petitioner specifically told Mr. Vafeas that Ms. Williford call a customer a "Dot head" and declared that another customer "reeked of curry." Petitioner also conveyed her displeasure with her 2018 Performance Evaluation. Mr. Vafeas was very concerned with Petitioner’s complaints. After receiving Petitioner’s phone call, Mr. Vafeas contacted Mr. Bargdill. Mr. Vafeas instructed Mr. Bargdill to speak with Ms. Williford regarding Petitioner’s complaints, and then set up a separate, in person, meeting between Mr. Bargdill, himself, and Petitioner. On May 17, 2018, Petitioner met with Mr. Bargdill and Mr. Vafeas. At the final hearing, Mr. Vafeas explained that his primary goal entering the meeting was to discuss: 1) Petitioner’s complaints about her Performance Evaluation from April 2018; 2) Petitioner’s conflict with Ms. Williford, and 3) full-time job opportunities available for Petitioner at Publix. In addition to these issues, Mr. Vafeas recalled that during their meeting, Petitioner raised further concerns, including disparaging comments Petitioner heard Ms. Williford make about Publix customers, and a comment another Publix employee made about Petitioner’s dog. Regarding Petitioner’s Performance Evaluation, Mr. Vafeas remembered that Petitioner believed that she was being held accountable for Ms. Williford’s messes at the Apron’s. Mr. Vafeas testified, however, that Petitioner’s evaluation scores were very close to those she received in her prior evaluation in November 2017. (In her November 2017 evaluation, Petitioner earned the top “Role Model” rating by one point.) Mr. Vafeas further reflected that Petitioner’s April 2018 evaluation scores were justified, and no score appeared improper. Mr. Vafeas also explained that Petitioner’s rating of Exceeds Expectations (as opposed to Role Model) did not impact her current or prospective rate of pay. Regarding the exchanging of notes at the Apron’s, Mr. Vafeas got the impression that Mr. Bargdill’s decision to cease all note passing resolved the matter. He also understood that Mr. Bargdill had counseled Ms. Williford about her alleged use of offensive language. Mr. Vafeas urged Petitioner to report any further conflicts to Mr. Bargdill. Finally, Mr. Vafeas recounted that the three discussed, at length, the full-time openings available at Store No. 1215. Petitioner repeated her desire to remain an Apron’s Meals Clerk. However, because the store did not have a full-time opening in that position, Mr. Vafeas and Mr. Bargdill informed Petitioner that they could look at other stores for a position as a full-time Apron’s specialist. If they found an opening, Petitioner could request a transfer. Mr. Vafeas and Mr. Bargdill reiterated to Petitioner that the best full- time opportunity at Store No. 1215 was in the Deli Department. Petitioner remained noncommittal. She was concerned about the time commitment required to work a full-time schedule. Therefore, they concluded the meeting by leaving Petitioner to consider her next move. Petitioner remained in her part-time cashier/Apron’s position. At the same time that Petitioner was pondering her future with Publix, another associate at Store No. 1215, Debbie Bartels, a white female, approached Mr. Bargdill inquiring about full-time positions. Mr. Bargdill offered Ms. Bartels the same guidance and opportunity that he provided to Petitioner, that a full-time job was open in the Deli Department. Ms. Bartels jumped on the offer and quickly completed an ROI. In June 2018, Ms. Bartels began receiving the required training to transfer to a full-time Deli position. From June through August 2018, Ms. Bartels slowly accrued more training hours in the Deli. In September 2018, she officially became a part-time Deli clerk. Ms. Bartels transitioned to a full-time Deli associate on December 8, 2018. Also in June 2018, about a week after Ms. Bartels began training as a Deli Clerk, Petitioner informed Mr. Bargdill that she had decided to accept the opportunity to work in the Deli. Because Petitioner’s ROI was approved on May 26, 2018, Mr. Bargdill promptly arranged for Petitioner to receive the training required to assume a full-time Deli position. Mr. Bargdill explained that the Deli is the most demanding department in the store because of the large volume of responsibilities that must be managed on a day-to-day basis. Consequently, Publix requires Deli Clerks to undergo extensive training. Once an associate completes the training, if they are productive and handle the Deli environment well, Publix will look to promote them to a full-time Deli Clerk. Training for the Deli Department required Petitioner (and Ms. Bartels) to complete a computer-based course to learn Deli procedures. She was also scheduled time to familiarize herself with the different Deli sections and services. This training included slicing cheeses and meats, as well as working in the sub shop, the kitchen, and the back of the Deli. Over the summer of 2018, Petitioner continued her assignment as a part-time cashier, while also working several hours a week in the Deli Department to gain experience. Finally, on August 11, 2018, Petitioner officially moved into a part-time Deli position. Based on the progress of her training, Petitioner was scheduled to become a full-time Deli Clerk in December 2018 (the same schedule as Ms. Bartels). In October 2018, Petitioner received another six-month Associate Performance Evaluation covering the period of April 1 through September 30, 2018. Petitioner’s rating category, which included her time as a Deli Clerk in training, dropped from Exceeds Expectations to Meets Expectations/Successful. Petitioner’s inexperience working in the Deli was reflected in the “Tracking & Balancing Inventory” and “Merchandizing” factors, with explanations that Petitioner “[s]hows only a basic or limited understanding of tools and sometimes cannot apply information to work activities. Still in training.” Petitioner was given a 3 out of 9 rating in this factor. For the “Associate Relations” factor, the evaluation recorded that Petitioner was “[f]riendly and considerate of other associates. Gets along with most associates. Shows willingness to assist others in accomplishing work and serving customers when needed.” Petitioner received a 5 out of 9 rating in this factor. Even with a Meets Expectations/Successful rating, Petitioner received a pay raise of $.50 an hour up to $12.75. Her raise became effective on October 20, 2018. In September 2018, Mr. Bargdill became aware of a conflict in the Deli Department between Petitioner and Lisa Stewart, another Deli associate. Ms. Stewart had worked in the Deli for approximately three years prior to Petitioner’s transition. She had been assigned to help train Petitioner on Deli procedures. Petitioner complained to Mr. Bargdill that Ms. Stewart had bullied her and refused to train her. At the final hearing, Mr. Bargdill confessed that Ms. Stewart can be “difficult” to work with. It became clear to him that Petitioner and Ms. Stewart had a tense working relationship that had created issues during Petitioner’s training. He counselled both Petitioner and Ms. Stewart about their personality conflict, and he removed Ms. Stewart as Petitioner’s Deli trainer. On November 20, 2018, however, another conflict erupted between Petitioner and Ms. Stewart. This time, Petitioner alleged that Ms. Stewart pushed her. Petitioner immediately reported the encounter to Mr. Bargdill. She explained to him that that morning, she had heard Ms. Stewart loudly complain about the smell in the Deli. Petitioner believed that Ms. Stewart’s comment was specifically aimed at her. The two women exchanged words. Shortly thereafter, Petitioner claimed that Ms. Stewart pushed her aside as she walked past. Mr. Bargdill promptly investigated the incident. He found both women visibly upset, as if they had just endured a heated encounter. He confronted Ms. Stewart and counseled her regarding Petitioner’s accusations. Then, to defuse the situation, Mr. Bargdill sent both Petitioner and Ms. Stewart home for the rest of the day. At that point, Mr. Bargdill considered the situation resolved. Petitioner, however, was not ready to let the matter go. She felt that Mr. Bargdill treated her unfairly because Ms. Stewart had started the dispute. On her way home, Petitioner called the Sarasota County Sheriff’s Office and reported that Ms. Stewart had committed a battery. The next day when Ms. Stewart returned to work, Mr. Bargdill called her into his office. He informed her that a sheriff’s officer had appeared at the store to investigate the incident. (Ultimately, the sheriff’s officer concluded that, “There is not [sic] probable cause a battery occurred” because Petitioner “did not have any injuries to show a battery occurred.”) Afterwards, Mr. Bargdill took steps to avoid any future issues between Ms. Stewart and Petitioner. He allowed Petitioner to remain in the Deli Department, but he moved Ms. Stewart and stationed her in the Apron’s. Ms. Stewart never returned to the Deli while Petitioner remained at the store. Neither did she have any further encounters with Petitioner. According to Ms. Stewart, who testified at the final hearing, it was Petitioner who initiated the confrontation by approaching her and declaring that Ms. Stewart had insulted her. Ms. Stewart denied making any offensive statements to Petitioner. She also denied making any physical contact with Petitioner. While Mr. Bargdill may have resolved the issue between Petitioner and Ms. Stewart, the situation appears symptomatic of a larger conflict between Petitioner and the rest of the Deli staff. At the final hearing, Mr. Bargdill testified that the Deli Department maintained a very collegial working environment prior to Petitioner’s arrival. However, following her transfer, the entire demeanor of the Deli changed. Mr. Bargdill recounted that morale in the Deli slowly deteriorated in October and November 2018. During this time, he testified that he received a number of complaints from Deli associates about Petitioner’s conduct. Mr. Bargdill stated that as many as seven Deli associates approached him bemoaning Petitioner’s behavior. Specifically, Mr. Bargdill described the following: Tracey Ranallo complained to him that Petitioner was treating associates rudely and brought down the overall morale of the Deli. Ms. Bartels relayed to him that Petitioner was inquiring about other associates’ personal information and was looking into their backgrounds. Ms. Bartels also declared that Petitioner called her a derogatory name, bullied her, and made her cry. Anna Forino also informed him that Petitioner was asking for background information on other associates. Ms. Forino further asserted that Petitioner made her fear for her safety. On November 29, 2018, Ms. Forino made a formal discrimination and harassment complaint against Petitioner, which Mr. Bargdill forwarded to Mr. Vafeas. Tony Howard submitted a written complaint describing the overall dynamic of the Deli Department. Mr. Howard felt that Petitioner was rude to fellow associates. He also alleged that Petitioner called an associate (Ms. Bartels) a derogatory name. Mr. Howard further chronicled another incident from November 2018, when Petitioner overheard two Deli Clerks discussing a movie that depicted the violent death of a woman. Petitioner apparently envisioned herself as the subject of the discussion, and then complained to Publix management that she feared for her personal safety. Mr. Howard also contacted Mr. Vafeas around November 29, 2018, about Petitioner’s behavior. Mr. Howard represented that he was complaining on behalf of the entire Deli Department. Mr. Bargdill investigated each complaint. Mr. Bargdill ultimately determined that the morale in the Deli had fallen “unbelievably” off track, and the Deli associates were no longer working as a harmonious team. When Petitioner was scheduled, the other Deli associates felt like they were “walking on pins and needles,” and they did not trust her. Based on his investigation, Mr. Bargdill believed that he had verified that Petitioner was asking other Deli associates for their personal information, which made them feel tense and uncomfortable. In addition, he found that several employees (Ms. Stewart and Ms. Bartels) credibly stated that Petitioner had made offensive comments while working in the Deli. Mr. Bargdill concluded that Petitioner was the source of the conflict in the Deli Department. At the final hearing, he testified that he never received these types of complaints in the Deli prior to Petitioner’s time there. Mr. Vafeas testified that he also received complaints about Petitioner’s behavior in November 2018. Although not produced at the final hearing, Mr. Vafeas credibly attested that he received written statements from two of Petitioner’s co-workers. Mr. Vafeas confirmed that Mr. Howard contacted him about Petitioner. After reading Mr. Howard’s complaint, Mr. Vafeas was concerned that Petitioner was making the Deli environment confrontational and a hostile place to work. Mr. Vafeas further relayed that Ms. Forino reported to him that Petitioner felt that people of different sizes and colors were repulsive. In addition, she repeated what she told Mr. Bargdill, that Petitioner was gathering information to conduct background checks on Deli associates. Mr. Vafeas concluded that Store No. 1215 Deli associates felt that Petitioner was mean to them, and that some were afraid for their safety. Mr. Vafeas spoke to Mr. Bargdill about the complaints. Thereafter, in early December 2018, Mr. Vafeas, Mr. Bargdill, and the Deli Manager, Bruce Fowler, prepared a Counseling Statement for Petitioner summarizing the complaints from Petitioner’s co-workers. The Counseling Statement recorded that “multiple [Deli] associates have lodged complaints with management and HR regarding [Petitioner].” The Counseling Statement further reported that Publix management had received information that Petitioner “called an associate a bitch,” “twists the truth in order to get associates in trouble,” and made derisive comments about “people of different sizes and color.” In addition, the Counseling Statement stated that Petitioner was “rude,” “cause[d] unnecessary conflict,” and that her “daily interaction with her coworkers has caused them to feel uncomfortable and has disrupted the harmony and positive work environment which the Deli enjoyed prior to her arrival.” The Counseling Statement included an “Improvement Required” section which stated that Petitioner “must treat all of her coworkers with dignity and respect and avoid creating unnecessary or destructive conflict.” The document also warned Petitioner in the “Failure to Improve” section that if she “continues to create unnecessary or destructive conflict and treat coworkers improperly it will result in disciplinary action up to an including suspension or discharge.” On December 13, 2018, Mr. Bargdill met with Petitioner and read to her the allegations contained in the Counseling Statement. Mr. Bargdill hoped that the counseling session would help Petitioner build and maintain positive working relationships with her Publix co-workers going forward. At the final hearing, Petitioner vehemently denied any of the wrongful conduct alleged in the Counseling Statement. Petitioner also strongly objected to, and disavowed, the implication that she was a racist. Petitioner further declared that the Counseling Statement was based on unverified statements, and the complaints from other Deli associates were “fabricated nonsense.” Petitioner also expressed that she was devastated when she received the Counseling Statement. She declared that the statement caused her “emotional damage” and “ruined her life.” Petitioner believed that the Counseling Statement would create a black mark on her record that would have a disastrous impact on all her future employment opportunities. Prior to serving Petitioner with the Counseling Statement, Mr. Vafeas and Mr. Bargdill discussed the best way to handle the numerous complaints from the other Publix associates. Mr. Vafeas was concerned that the conflict could not be remedied if Petitioner remained at Store No. 1215. Therefore, he determined that the most appropriate response to relieve the tension in the Deli Department was to transfer Petitioner to another Publix store. Mr. Bargdill agreed. Neither Mr. Vafeas nor Mr. Bargdill believed that Petitioner would change her behavior, and they felt that the situation had escalated beyond the point where the conflict could be eliminated. They also thought that a move would provide Petitioner the opportunity for a fresh, hopefully successful, start, and allow her to form positive relationships with new co-workers. On December 13, 2018, Publix transferred Petitioner from Store No. 1215 to Store No. 384. Store No. 384 is located three to four miles from Store No. 1215. Petitioner was given the same position (part-time Deli associate) with no loss of work hours (34 to 35 hours a week), pay ($12.75 an hour), benefits, promotion opportunities, or status. Petitioner firmly objected to the transfer. She did not want to leave Store No. 1215. Petitioner claimed that she had to drive farther to work. At the final hearing, however, Petitioner relayed that her home is actually closer to Store No. 384. Petitioner worked approximately 35 hours (a part-time schedule) during her first week at Store No. 384. Mr. Bargdill did not have any involvement with Petitioner’s career after she was transferred out of Store No. 1215. On January 11, 2019, Petitioner resigned from Publix to take another job. Petitioner explained that in November 2018, she applied for a job with another local business. Petitioner testified that part of her motivation to seek new employment was that she believed her days at Publix were numbered following her November 2018 confrontation with Ms. Stewart. Petitioner interviewed for her new job on December 6, 2018. She received a job offer on January 10, 2019, and resigned from Publix the next day. Petitioner expressed that she makes more money in her new place of employment. Based on her testimony at the final hearing, Petitioner raises several causes of action in her discrimination complaint. First, Petitioner contends that Publix, through Mr. Bargdill, discriminated against her, based on her protected class, when she expressed an interest in working full-time. The testimony establishes that Mr. Bargdill offered Petitioner a full-time position in the Deli Department during their meeting on April 25, 2018. Petitioner alleges that Mr. Bargdill rescinded this offer in May or June 2018, and instead filled the position with a white employee (Ms. Bartels). Petitioner further complains that Mr. Bargdill “looked the other way” when Ms. Williford, Ms. Stewart, and other co-workers abused and harassed her. (Ms. Williford and Ms. Stewart are also white.) Petitioner also asserts that Mr. Bargdill retaliated against her based on her pursuit of a charge of discrimination with the Commission. On August 6, 2018, in light of Mr. Bargdill’s invitation to Ms. Bartels to transfer to the Deli the previous June, Petitioner filed a formal Employment Complaint of Discrimination with the Commission. In her complaint, Petitioner charged that she was “a dark skinned, East Indian, and Asian, female” who had been “discriminated against based on race, color, national origin, sex, and retaliation.” Petitioner claims that, following her Complaint of Discrimination, Publix took several adverse employment actions against her. These actions included, 1) her Performance Evaluation issued on October 11, 2018, in which she was rated as Meets Expectations/Successful, instead of Role Model or Exceeds Expectations, 2) the Counseling Statement in December 2018, and 3) the decision to transfer her to another Publix store. Finally, Petitioner alleges that Publix created a hostile work environment. Petitioner charges that Publix management did not sufficiently address or prevent the disparaging comments and harassment aimed at her by other associates. Petitioner also complains that the Store No. 1215 management allowed her Publix co-workers to learn about her personal affairs without her consent. Petitioner is particularly upset that Publix personnel may have heard about her discrimination complaint to the human resources department, as well as her complaint about being pushed to the Sarasota County Sheriff’s Office. In response to Petitioner’s claims of discrimination, Mr. Bargdill persuasively testified that he never rescinded his offer for Petitioner to transfer to a full-time Deli position. On the contrary, Mr. Bargdill convincingly attested that the Deli position remained open until Petitioner requested the job in June 2018. Mr. Bargdill further credibly refuted Petitioner’s accusation that he selected Ms. Bartels for the Deli instead of Petitioner, or that Ms. Bartels filled the only Deli opening. Mr. Bargdill cogently explained that Ms. Bartels applied for the Deli position at the same time as Petitioner, and both women were equally allowed to transfer into the Deli Department at the time each accepted the offer. Further, Mr. Bargdill credibly voiced that after Petitioner left his store’s Deli Department, the working environment changed for the better. As he described it, he observed the Deli associates laughing and helping each other, and the camaraderie noticeably improved. Eileen Williford testified at the final hearing and described her time working at the Apron’s with Petitioner. Ms. Williford readily acknowledged that she did not care for Petitioner. She stated that their conflict centered on the Apron’s cleanliness. Ms. Williford asserted that daily she would receive “petty” notes from Petitioner regarding the condition of the Apron’s station, its appliances, and supplies. Ms. Williford was also aware that Petitioner reported her to Mr. Bargdill. She recounted that she refused to speak with Mr. Bargdill about Petitioner’s complaints because she found the situation too stressful. Ms. Williford agreed that all note passing ceased between her and Petitioner after Mr. Bargdill intervened. She denied that Publix (Mr. Bargdill) ever formally disciplined her regarding the incident. Regarding Petitioner’s other complaints, Ms. Williford denied telling a Publix customer that the Apron’s “is not a buffet.” She further disputed that she voiced that a customer “reeked of curry.” Finally, Ms. Williford denied that she ever made any statement to Petitioner regarding her race, national origin, gender, or the color of her skin. To support her case, Petitioner called several witnesses. Her first witness, Philippe Canlers, testified that during his time with Publix, he also had a personality conflict with Ms. Williford. Mr. Canlers described Ms. Williford as a “bully” who intimidated her co-workers. He relayed that Ms. Williford visited him occasionally while he worked at the Apron’s or in the meat department, and she would give him a “rough time.” He was also familiar with her habit of leaving “nasty” notes. Mr. Canlers stated that he talked to the store managers about Ms. Williford’s offensive conduct. But, he never saw Publix address any of his complaints. He felt that management was just willing to accept her behavior. Mr. Canlers also described an incident in May 2018 when a store manager announced that a Publix Regional Director was coming to investigate Petitioner’s complaint about Ms. Williford. Mr. Canlers declared that this manager publicly discussed the existence of this investigation in the presence of Publix employees and customers. Mr. Canlers expressed that he believed that Petitioner’s complaint was her “personal affair” and should not have been disclosed to people who did not need to know. Danielle Goldman worked with Petitioner at Publix. They became friends. Ms. Goldman heard Christina Zito, a Store No. 1215 customer service manager, imply that Petitioner had a drinking problem. Ms. Goldman was also aware that Petitioner had an issue with Ms. Stewart when she worked in the Deli Department. Petitioner called Ms. Zito to the final hearing to address her role in Petitioner’s ill-treatment. Ms. Zito transferred to Store No. 1215 in May 2018. She supervised Petitioner when Petitioner worked as a part-time cashier. Ms. Zito testified that she initially found Petitioner very talkative and “bubbly.” However, she soon noticed a change in her attitude. Petitioner gradually became less approachable. Ms. Zito learned of the incident between Petitioner and Ms. Stewart in November 2018 when she participated in the follow-up meetings between Mr. Bargdill and both Petitioner and Ms. Stewart. Ms. Zito explained that Mr. Bargdill met first with Ms. Stewart, during which he informed her of Petitioner’s assault accusation. Upon hearing the allegation, Ms. Zito recounted that Ms. Stewart became visibly upset. Ms. Stewart adamantly denied that she pushed Petitioner. Ms. Zito also provided a statement to the sheriff who investigated Petitioner’s complaint. The sheriff recorded in the Incident Report that Ms. Zito advised that Petitioner “has a history of falsely accusing co-workers of things that did not happen, and does not get along with most other employees.” Ms. Zito explained that she made the statement because she was aware of Petitioner’s past dispute with an Apron’s employee, as well as her ongoing issues with Deli associates and cashiers. Finally, Ms. Zito discussed the conversation with Ms. Goldman during which she mentioned Petitioner’s possible issue with drinking. Ms. Zito admitted that she commented on Petitioner’s use of alcohol. However, Ms. Zito expressed that she simply wanted to make sure Petitioner was doing alright. (At the final hearing, Petitioner steadfastly declared that she does not drink.) Desmond James served as Petitioner’s team leader and department manager in the Customer Service Department in the spring of 2018. He also supervised the Apron’s team. In addition, Mr. James authored Petitioner’s April 2018 Associate Performance Evaluation. At the final hearing, Mr. James did not recall meeting with Petitioner and Mr. Bargdill to review the evaluation. Neither did he remember ever discussing in front of a Publix customer Petitioner’s personal information or discussing the fact that Petitioner had submitted a complaint to the Publix human resources department. On the other hand, Mr. James confirmed that Ms. Williford did leave the Apron’s counter and sink in a messy condition. Finally, Petitioner called Brooke Treat with whom she had a good working relationship at Publix. Ms. Treat testified about a time when she overheard Ms. Williford announce that Petitioner did not clean the dishes at the Apron’s. Ms. Treat recounted that Petitioner calmly handled the situation. Ms. Treat was also aware of the incident that occurred on November 20, 2018, between Petitioner and Ms. Stewart. Ms. Treat was not in the store at the time. However, she communicated (texted) with Petitioner just after Petitioner was sent home. Ms. Treat recalled that Petitioner was shaken up by the episode. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Publix discriminated against Petitioner based on her race, age, national origin, or sex, or in retaliation for her complaint of discrimination. Accordingly, Petitioner failed to meet her burden of proving that Publix committed an unlawful employment action against her 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 Petitioner, Michele J. Edwards, did not prove that Respondent, Publix, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 24th day of March, 2020, 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 24th day of March, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) John Bateman, Esquire Publix Supermarket, Inc. Post Office Box 407 Lakeland, Florida 33802 Michele Judith Edwards 3131 Galiot Road Venice, Florida 34293 (eServed) Christine E. Howard, Esquire Fisher & Phillips LLP Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Brett Purcell Owens, Esquire Fisher & Phillips, LLP Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent discriminated against Petitioner because of a handicap.
Findings Of Fact Sometime in July 2002, Petitioner was hired by Respondent as a Store Clerk (now known as a Sales Associate) at Store No. 3727 in Panama City, Florida. On March 1, 2003, Petitioner was promoted to Lead Sales Associate. Sometime around December 2005, Petitioner was diagnosed with absolute glaucoma and cataracts. As a result of her deteriorating eyesight, Petitioner asked the Store’s Manager, Michaelene Mellor, to be reassigned to her earlier Sales Associate position. Although there was some conflict in the evidence on whether Petitioner was reassigned as a “store stocker,” the better evidence demonstrated that Dollar General did not have a formal position known as a “store stocker.” Dollar General did have a position known as a “Sales Associate.” The Sales Associate position consisted of a variety of duties. Essential to the position were the following: assist in setting and maintaining planograms and programs; build merchandise displays; operate a cash register; itemize and total a customer’s purchase; collect payment from a customer and make change; operate a handheld scanner; and assist with ordering merchandise and maintaining inventory in the store. Planograms are shelving strips that contain shelf tags. They are the method that employees use to place merchandise in the store and on the shelves. They also help in inventory control. Petitioner was reassigned by Ms. Mellor. Her primary duties were to stock the store by using the planograms and shelf tags. Ms. Mellor advised the District Manager about the reassignment. However, she did not inform the District Manager that Petitioner would primarily be limited to stocking the store. Under Ms. Mellor’s tenure as Store Manager, Store 3727 was not properly managed. The store was dirty, had incorrect or out-of-date signage, incomplete or nonexistent planograms, merchandise on the floor and blocking the aisles, and a high incidence of inventory loss. Because of these problems, Ms. Mellor was terminated in October 2006. That same month, Thomas Rector became the Store Manager. His goal was to bring the store into compliance with Dollar General’s operation policies and to reduce the store’s inventory loss. At the time Mr. Rector took over Store 3727, the store had 4 positions and 7 employees allotted to it. The positions were Store Manager, Assistant Store Manager, Lead Sales Associate and Sales Associate. Each store was allotted a specific number of labor hours, excluding the hours worked by the manager, to cover the hours the store is open for business. Because Store 3727 had only 7 employees, only two or three employees worked during any given shift. With so few employees to cover each shift, it was essential that all employees be able to perform all the duties of the position that they filled. In this case, it was essential that Petitioner be able to read a scanner, run the cash register, make change, read a planogram, read a shelf tag, locate merchandise and stock merchandise. For the next several months, Mr. Rector observed that Petitioner could not clock herself in or out of work. More importantly, he observed that Petitioner had difficulties in stocking merchandise in the proper place. He observed that other employees had to sometimes help Petitioner with stocking. Improperly stocked items caused inventory control problems, increased the labor hours used by the store because time was required to correctly place store items and could result in lost revenue due to improper pricing. He also observed that she had trouble reading the scanner, the planograms and shelf tags. Based on his observations, Mr. Rector concluded that Petitioner could not fulfill the duties of a Sales Associate. He contacted the District Manager, Joe Peebles, and advised him that Petitioner could not perform the duties of a Sales Associate. On June 6, 2007, Mr. Peebles met with Petitioner. He read her the list of duties that a Sales Associate must perform and asked her if she felt she could perform those duties. Those duties are outlined above. Petitioner admitted she had difficulty with reading a planogram and operating a cash register. Likewise at the hearing, Petitioner admitted and demonstrated that she could not accurately read a planogram or shelf tag. She admitted she could not build a merchandise display, could not operate a cash register and could not make change for a customer. The evidence was clear that Petitioner could not perform the essential functions of a Sales Associate. Eventually, Petitioner was placed on leave and was told that, if her vision did not improve, she would be terminated. At no time did Petitioner ask for or identify any reasonable accommodation that could be made by Respondent to enable her to perform her duties as a Sales Associate and the evidence did not reveal that any such accommodations existed or were available. Ultimately, Petitioner was terminated because she could not perform the duties of a Sales Associate. The evidence did not demonstrate that her termination was discriminatory or the reasons given for her termination were pretextual. Finally, the evidence did not demonstrate that Petitioner’s vision impairment could be reasonably accommodated. Given these facts, Petitioner’s Petition for Relief should be dismissed.
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 dismissing the Petition for Relief. DONE AND ENTERED this 9th day of January, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 9th day of January, 2009. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jean Marie Downing, Esquire 221 Thomas Drive Panama City Beach, Florida 32408 Alva L. Cross, Esquire 2300 SunTrust Financial Centre 401 East Jackson Street Tampa, Florida 33602
Findings Of Fact On February 21, 1975, H. R. Hall was working as an undercover detective for the Jacksonville Vice Squad. During the evening of that date Detective Hall entered the Silver Dollar Bar and Package Store, sat in a booth and ordered a beer. Sarah Lynn Swain, LuAnn Marie Docker and Lee Ann Remm, on the evening of February 21, 1975, were dressed as topless dancers and performed as topless dancers in the Silver Dollar Bar and Package Store. The three foregoing persons were agents, servants or employees of the Respondent. While seated in a booth Detective Hall observed Sarah Lynn Swain dancing topless between the legs of a male customer, who was fondling her buttocks while she placed her breast in the customer's mouth. Also while seated in the booth, Detective Hall observed LuAnn Marie Dockery dancing topless for a male customer and allowing the customer to fondle her buttocks. While in the Silver Dollar Bar and Package Store on February 21, 1975, Lee Ann Remm performed a topless dance for Detective Hall and while so dancing straddled his leg and undulated back and forth. Further, she attempted to place her breast in Detective Hall's mouth. Detective Hall paid her $2.00 to dance for him, but did not discuss with her, nor request the privilege of touching her. The Respondent is the holder of Beverage License No. 26-1334,4-COP and the licensed premises are the Silver Dollar Bar and Package Store.
The Issue The dispositive issue presented is whether Respondent, Publix Super Markets, Inc. (“Publix” or “Respondent”), is a “public accommodation” as defined by section 760.02(11), and is therefore subject to the terms of the FCRA. Having concluded that the Publix location where the alleged discriminatory action took place is not a “public accommodation” as defined by section 760.02(11), it is unnecessary to determine whether the alleged discriminatory action indeed took place.
Findings Of Fact On October 12, 2018, Petitioner visited Respondent’s Store No. 0795, located on Main Street in Gainesville, Florida. The store Petitioner visited is a grocery store. Petitioner was at Respondent’s grocery store to buy her son lunch. She planned to take the items she purchased to her son’s school. Typically, when she goes to Respondent’s grocery store, she buys groceries to take back to her house or to her son’s school. Petitioner has known Margaret Nugent for over 10 years. In the past Ms. Nugent has upset Petitioner. Ms. Nugent uses a motorized red chair to traverse Respondent’s premises. Petitioner walked in Respondent’s entrance to get her son lunch for school. As Petitioner entered the store, she saw Ms. Nugent, and said “Hi, Ms. Nugent, Ms. Nugent.” Petitioner continued picking up the items that she was purchasing for her son, and then walked to Respondent’s checkout. Donna, the cashier, waited on Petitioner. Petitioner acknowledged that Donna did everything in the checkout process correctly. While Petitioner was waiting to buy her items, Ms. Nugent pulled to the back of the checkout and said “You want to know a secret?” Petitioner said no, and then Ms. Nugent said, “The next time you call my name out like this, I’m gonna cut your throat and kill you.” Ms. Nugent then took off in her motorized chair. Hearing this exchange, Donna contacted Mr. Cherena, the customer service manager, and asked him to come to the register. Petitioner told Mr. Cherena what Ms. Nugent had said to her. Mr. Cherena thanked Petitioner for letting him know and told her they would keep an eye out. Petitioner was able to purchase all of the items that she wanted from Respondent’s store. Mr. Cherena walked Petitioner to an exit of the store and pointed to the other exit because Ms. Nugent was utilizing the same to exit the store. Petitioner did not ask Mr. Cherena to do anything in response to what Ms. Nugent said to her. Petitioner knew she could call 911 if she wanted to, and in fact, she did so upon exiting the store. The police then arrived at the store and the investigating officer discussed the matter with Petitioner. Petitioner believes Ms. Nugent thought she was a threat because Petitioner was visiting a mutual friend and Ms. Nugent thought that Petitioner was selling their friend prescription pain pills. Petitioner is alleging she was discriminated against based on her race (Black) because Respondent failed to call the police. Petitioner did not have any indication that Ms. Nugent was going to threaten her. Petitioner also admits that Respondent would not have had any idea that Ms. Nugent would threaten Petitioner on October 12, 2018. Petitioner is not aware of any other customers in the past being threatened at the store. Petitioner admits that no one at the store made any remarks or slurs regarding her race. Frank Ammirati is the assistant store manager at Publix Store 0795. Publix Store 0795 is a grocery store that is principally engaged in selling packaged food, consumer goods, and other items for consumption and use at off-site locations not located on the premises of the store. Publix Store 0795 does not have any designated areas for customers to consume food on the premises. Likewise, there are no restaurants, lunchrooms, cafeterias, cafés, or designated tables at the store for customers to consume food that they have purchased at the store.
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, Publix Super Markets, Inc. (Store No. 0795) is not a place of “public accommodation” under the facts of this case. Accordingly, the Petition for Relief filed in this matter should be dismissed. DONE AND ENTERED this 27th day of January, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 27th day of January, 2020.
