STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DON R. HOOD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4479

)

TERMINIX INTERNATIONAL )

COMPANY, LP, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida on April 11, 1995, before Suzanne F. Hood, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linda G. Miklowitz, Esquire

Post Office Box 14922 Tallahassee, Florida 32317-4922

For Respondent: James M. Nicholas, Esquire

Post Office Box 814 Melbourne, Florida 32902

STATEMENT OF THE ISSUE

The issue is whether Respondent retaliated against Petitioner for signing an affidavit allegedly adverse to Respondent and for testifying on behalf of another employee in a proceeding filed under Section 760.10, Florida Statutes, in violation of the Florida Civil Rights Act of 1992, as amended.

PRELIMINARY STATEMENT

In July of 1993, Petitioner Don Hood (Petitioner) filed a Charge of Discrimination pursuant to Section 760.10(7), Florida Statutes, with the Florida Commission on Human Relations (FCHR). Petitioner alleged that Respondent Terminix International Company, LP (Respondent) retaliated against him and eventually terminated his employment because he signed an affidavit allegedly adverse to Respondent and subsequently testified on behalf of another employee in a proceeding filed under Section 760.10, Florida Statutes. On July 1, 1994, the Executive Director of FCHR found no cause to believe that Respondent discriminated against Petitioner. Petitioner subsequently filed a Petition for Relief dated August 3, 1994, with FCHR. FCHR referred the Petition for Relief to the Division of Administrative Hearings for assignment of a Hearing Officer on August 11, 1994.

Hearing Officer David Maloney issued a Notice of Hearing dated September 28, 1994, setting this matter for formal hearing on March 23 and 24, 1995.

Respondent filed a Motion to Dismiss on December 19, 1994.

On March 15, 1995, Respondent filed a Motion for Continuance and a Motion to Compel and Impose Sanctions against Petitioner for failure to appear at deposition. After hearing argument of counsel, the undersigned issued an Order Granting Continuance, Compelling Petitioner's Appearance for Deposition, Requiring Exchange of Witness and Exhibit Lists, and Rescheduling Hearing.

When the formal hearing convened at 9:00 a.m. on April 11, 1995, Petitioner's counsel advised the undersigned that Petitioner was enroute to the hearing and would be present at 11:00 a.m. The undersigned heard oral argument on Respondent's Motion to Dismiss and denied same. After attending to other preliminary matters and hearing opening statements, the undersigned recessed the hearing until 11:00 a.m.

When the hearing reconvened, Petitioner's counsel advised the undersigned that Petitioner would not arrive at the hearing site until noon. The undersigned again recessed the hearing. Petitioner was present when the hearing resumed shortly after noon.

Petitioner testified on his own behalf and offered three (3) exhibits which were accepted into evidence. Respondent presented the testimony of two (2) witnesses and offered twelve (12) exhibits which were accepted into evidence.

Two (2) of Petitioner's rebuttal witnesses, Norman Arrington and Chuck Godwin, were not available to testify after Respondent rested its case.

During an afternoon recess, the undersigned understood from a conversation with office staff that Mr. Arrington had made an appearance at the Division of Administrative Hearings earlier in the day. When it became apparent that Mr.

Arrington was unavailable to testify, the undersigned stated for the record that the witness had been present but had left the building. The undersigned subsequently denied Petitioner's request to continue the hearing.

Petitioner advised the undersigned that he intended to order a transcript of the formal hearing, a copy of which would be filed with the Division of Administrative Hearings. The parties agreed to file proposed recommended orders within thirty (30) days after the filing of the transcript.

On April 12, 1995, the undersigned learned from her office staff that Norman Arrington appeared at the Division of Administrative Hearings on April 6, 1995. Mr. Arrington had questions concerning a subpoena duces tecum commanding him to appear at the final hearing of this matter on April 11, 1995.

Specifically, Mr. Arrington inquired whether the subpoena, which Petitioner allegedly served by mail, had been properly served. The undersigned's staff told Mr. Arrington that they did not think subpoenas could be served by mail, but they could not give him any advice. The undersigned's staff recommended that Mr. Arrington contact Petitioner's counsel, or his own attorney.

On or about April 19, 1995, the court reporter informed the undersigned that neither party had ordered a copy of the hearing transcript. The undersigned entered an Order directing the parties to file their proposed findings of fact and conclusions of law on or before May 3, 1995. Respondent filed its proposed recommended order on May 1, 1995.

On May 3, 1995, Petitioner filed an Advisory to Hearing Officer and Motion for Extension of Time to File Proposed Recommended Order. This motion stated that Petitioner intended to order a hearing transcript now that he had the funds to pay for it and requested an additional thirty (30) days to file a proposed recommended order. On May 8, 1995, Respondent filed an Objection to Petitioner's Motion for Extension of Time to File Recommended Order. The undersigned entered an Order dated May 9, 1995, directing Petitioner to file his proposed recommended order within ten (10) days after the filing of the transcript and giving Respondent an opportunity to file an amended proposed recommended order within the same time frame.

Petitioner filed a Motion to Enforce Subpoena and Reopen for New Evidence on May 9, 1995. This motion requested that the undersigned reopen the record and enforce a subpoena requiring Norman Arrington to testify on Petitioner's behalf. On June 2, 1995, the undersigned issued an Order: (1) directing Petitioner to seek enforcement of the subpoena in Circuit Court; (2) giving Petitioner the opportunity to depose Mr. Arrington and to file his deposition within sixty (60) days; and (3) giving the parties an opportunity to file a proposed recommended order or an amended proposed recommended order within sixty

1. days. The transcripts of the formal hearing were filed with the Division of Administrative Hearings on July 5, 1995.

   
   

   The sixtieth (60th) day from June 2, 1995, was August 1, 1995. On August 3, 1995, Petitioner filed an untimely Stipulated Motion for Extension of Time. This motion stated that counsel for Respondent was in a hurricane watch on August 1, 1995, and had been given an order to evacuate his family from their residence in Melbourne, Florida. The motion also stated that counsel for Petitioner was leaving for New York the next morning, but gave no explanation as to why she was unable to file Petitioner's proposed recommended order prior to her departure. The parties requested that they be allowed to file proposed recommended orders on August 21, 1995.

   
   

   Upon receipt of the Stipulated Motion for Extension of Time, the undersigned called Petitioner's counsel and learned from her voice-mail that she would not return to Tallahassee until August 16, 1995. The undersigned then called Respondent's counsel to discuss his reasons for requesting an extension of time. Finding no good cause to grant either party an extension of time, the undersigned entered an Order denying the parties' Stipulated Motion for Extension of Time.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is an employer as defined in the Florida Civil Rights Act of 1992, as amended.

      
      

   2. At all times material to this proceeding, Respondent employed Petitioner at Respondent's place of business located in Tallahassee, Florida.

      
      

   3. On March 29, 1990, Petitioner and Respondent's representative signed an Employment Agreement in which Petitioner agreed, inter alia, that during his employment, he would refrain from: (1) performing services for any person, during business hours, or at any other time, when said services were not authorized by Respondent; (2) soliciting work for or accepting any business from any customer of the company on behalf himself or for any others.

      
      

   4. On March 30, 1990, Petitioner and Respondent's representative signed a Sales Employee Compensation Plan in which Respondent agreed to pay Petitioner a

      starting salary of $1,200 per month as a guarantee against commission on sales for the first three months. Thereafter, Respondent's salary of $1,200 per month was to be a draw against commission on sales. Petitioner had to sell a minimum of $8,000 per month to earn his draw.

      
      

   5. Pursuant to the Sales Employee Compensation Plan, Petitioner earned a percent of sales, ranging from 10 percent to 20 percent, depending on the type of service Petitioner sold. He received commissions after the work was completed and the customer paid for the service. For example, Petitioner earned

      15 percent of the annualized value of all pest control work, termite work, or special onetime service that he sold. He earned 20 percent of the initial month's service charge on all annual pest control service that he sold provided that he performed the start-up. Respondent paid Petitioner 20 percent of the total value of all real estate inspections (certification or clearance letter) that Petitioner performed.

      
      

   6. Under the Sales Employee Compensation Plan, Petitioner elected to receive 2.5 percent of monthly net commissionable sales, or $150, whichever was greater, as a gasoline allowance and to furnish his own transportation. However, Respondent's former branch manager gave Petitioner a gasoline credit card and told Petitioner to put the gasoline allowance in his pocket. The record indicates that the former branch manager acted beyond the scope of his authority in this regard.

      
      

   7. Upon employment, Respondent's former branch manager gave Petitioner a key to the office. Petitioner also received a pest control kit with which to perform the initial pest control treatment after selling a service contract. Respondent gave Petitioner a voice-pager so that he could stay in touch with the office and respond quickly to "office" leads. No other employee had the benefit of a voice-pager.

      
      

   8. In May of 1990, Petitioner successfully completed a training course in pest control. That September, he completed a course in termite control. On or about January 14, 1991, Petitioner became qualified to prepare wood infestation reports.

      
      

   9. At all times material to this proceeding, Petitioner was allowed to sell Respondent's services in north Florida and south Georgia. There were two kinds of sales leads. Petitioner could develop his own "creative" leads and sell anywhere within the sales territory of the Tallahassee branch office. Respondent's office manager logged all incoming "phone" or "office" leads and distributed them to the salesmen based on a geographic division of the sales territory. Petitioner lived in south Georgia; therefore, the office manager gave him all "office" leads originating in Georgia and on the east side of Tallahassee. Contrary to Petitioner's testimony, neither the office manager nor any other supervisor ever discriminated against Petitioner by withholding leads from him or by taking the best leads for themselves or another salesman.

      
      

   10. On or about September 16, 1991, Petitioner sold a customer a termite protection contract instead of a termite service contract on a very expensive home without Respondent's approval. This incident resulted in the preparation of a written Disciplinary Action Report (DAR) which states that Petitioner would be terminated if he could not follow Respondent's policy governing sales of termite protection and service contracts. Respondent's testimony that he signed this DAR under the threat of violence not credible.

   11. On February 26, 1992, Petitioner signed an affidavit relating to the employment relationship between Norm Arrington and Respondent. Mr. Arrington had been a salesman for Respondent and Petitioner's coworker.

       
       

   12. On March 9, 1992, Petitioner performed a wood-destroying organism inspection on residential property in Tallahassee, Florida. Petitioner issued a Form 1145 (October '89) Wood Destroying Organisms Inspection Report without identifying visible and accessible evidence of and damage caused by subterranean termites on the exterior of the structure. The Florida Department of Agriculture fined Petitioner $300 dollars for failing to report evidence of termite damage. Respondent paid this fine on Petitioner's behalf.

       
       

   13. Petitioner failed to report to work on September 12, 1992, for a sales meeting. He claimed he had an emergency but did not call in to explain his absence. Respondent wrote a DAR dated September 14, 1992, warning Petitioner that he would be suspended without pay for three days or terminated if he repeated this type of conduct. Petitioner presented contradictory record evidence concerning his reason for missing the sales meeting: (a) family medical emergency; and (b) mechanical problem with vehicle.

       
       

   14. Until October of 1992, Petitioner was successful in meeting or exceeding his minimum quota of $8,000 in sales revenue on an averaged monthly basis. One month he earned an award for being Respondent's top salesman statewide. However, in November of 1992, Petitioner's monthly sales revenues dropped below an acceptable level for an experienced salesman. Thereafter, Petitioner was in overdraw status, averaging between $3,000 and $4,000 per month in sales. Except for the month of February, 1993, Petitioner never again met his monthly minimum quota.

       
       

   15. At all times material to this proceeding, Petitioner's father owned a construction company. Respondent occasionally hired Petitioner's father to perform termite repair work. Respondent always hired outside contractors to do repair work for customers because of the liability involved and to prevent giving the impression that Terminix, Inc. was in the construction business.

       
       

   16. Petitioner was also trained as a carpenter. Petitioner admits that, during the months of his highest sales, he solicited and received "building" leads from Respondent's customers. As a result of these leads, Petitioner performed carpentry work, such as building cabinets or repairing damaged woodwork, for Respondent's customers. Petitioner's testimony that Respondent authorized this outside employment is not persuasive.

       
       

   17. In February of 1993, Tim Carey was Respondent's sales manager. He attended an out-of-town divisional sales meeting and returned to Tallahassee with motivational material to share with his staff. In the material was a poster which stated, "If you don't know where you going . . . you'll probably end up someplace else." Mr. Carey gave a copy of the poster to all salesmen including Petitioner sometime before Petitioner gave testimony adverse to Respondent. Petitioner's testimony that Mr. Carey gave the poster to Petitioner alone as a means of retaliation is not persuasive.

       
       

   18. On March 22, 1993, Petitioner testified by deposition on behalf of Norm Arrington in an unrelated age discrimination case.

       
       

   19. Around the end of March or the first of April, 1993, Tim Carey became Respondent's sales manager-in-charge. Respondent's Tallahassee branch did not have a branch manager at that time. Mr. Carey was responsible for all

       operations under the direct supervision of Ralph Potter, Respondent's regional manager. Mr. Carey officially became branch manager before Respondent terminated Petitioner on June 30, 1993.

       
       

   20. One of Mr. Carey's first acts as sales manager-in-charge was to change the locks to the office and the pesticide storage room. Petitioner signed a statement that he received a key to the office on March 31, 1993. However, Mr. Carey did not reissue an office key to Petitioner or any other sales representatives because they, unlike route technicians, did not work after normal business hours. Petitioner's testimony that his key was taken away as a discriminatory act is not persuasive. The undersigned also rejects Petitioner's testimony that the office was locked during office hours so that he was unable to use the phone.

       
       

   21. Mr. Carey also took Petitioner's company gasoline credit card because Petitioner was not entitled to use the card and receive a gasoline allowance too. This action was to enforce company policy, and not to retaliate against Petitioner.

       
       

   22. Soon after Mr. Carey became sales manager-in-charge, he and the office manager began receiving calls from customers wanting to know when Petitioner was going to finish their carpentry work. Sales meetings were interrupted at times by calls on Petitioner's voice-pager with inquiries about unfinished jobs. On one occasion, Petitioner came to the office at noon with paint on his hands which had been clean earlier that morning. On another occasion Mr. Carey could hear saws operating in the background when Petitioner called the office during business hours. Mr. Carey gave Petitioner repeated verbal warnings not to solicit outside employment or perform outside work for Respondent's customers. After each verbal reprimand, Petitioner would promise that he would stop and that it would not happen again.

       
       

   23. Mr. Carey eventually took Petitioner's voice-pager away and replaced it with a tone beeper like the ones used by other employees. The purpose of this action was to reduce overhead expenses and alleviate problems with Petitioner abusing the privilege of having a voice-pager. Petitioner could no longer receive direct messages relating to his construction business. Petitioner's testimony that Respondent discriminated against him by taking his voice-pager is contrary to more persuasive testimony.

       
       

   24. In April or May of 1993, Petitioner performed unauthorized work for one of Respondent's customers who sent one check to pay for a termite inspection and for Petitioner's carpentry work. In order to balance the office books, Respondent deposited the customer's check and wrote a separate company check made payable to Petitioner. Respondent again warned Petitioner not to perform unauthorized work for the company's customers.

       
       

   25. On May 17, 1993, Respondent prepared another DAR reprimanding Petitioner for two incidents. The first involved Petitioner's issuance of a clearance letter for Ms. Fortune's residence even though Petitioner had identified wood rot on the premises. Petitioner claimed he knew Ms. Fortune and issued the clearance letter based on her promise that she would repair the damage. A subsequent inspection revealed that the customer had not made the repairs.

       
       

   26. The second incident covered by the May 17, 1993, DAR involved one of Respondent's national relocation customers, Prudential Relocation. Petitioner prepared a wood destroying organism report for the customer without inspecting

       the inside of the structure. Respondent was responsible for repairing wood rot damage on the house. Petitioner violated Respondent's policy regardless of whether he wrote "exterior only" on the report.

       
       

   27. Neither party signed the May 17, 1993, DAR. However, Mr. Carey discussed both incidents with Petitioner and warned him that he would be suspended or discharged if: (a) Petitioner gave a clearance letter without inspecting the interior of the structure; and (b) Petitioner issued a clearance letter on a structure with water damage.

       
       

   28. On another occasion, Petitioner informed Mr. Carey that someone had stollen his pest control kit out of the back of his truck. Petitioner filed a police report on the missing pesticide kit. Several days later, a lady, who was not Respondent's customer, reported that Petitioner left the service equipment at her home after using it to treat her residence. Respondent recovered the missing equipment and did not return it to Petitioner. From that time on, a service technician performed Petitioner's initial pesticide treatments.

       
       

   29. Petitioner's testimony that Respondent took his pest control kit as a retaliatory act is rejected. Petitioner was not allowed to use the service equipment again because: (a) He left registered material in an unsupervised location; (b) He used the equipment to service a non-customer's property; and

       (c) He could schedule the start-ups for his new customers through the office. Petitioner's testimony that Respondent took the pest control equipment away and deliberately delayed the start-up service or failed to service on Petitioner's new accounts is not persuasive.

       
       

   30. On June 8, 1993, Ralph Potter and Tim Carey had a conference with Petitioner. The result of the meeting was a DAR signed by Mr. Potter and Mr. Carey. During the conference, the parties discussed: (a) Petitioner's poor performance for the first week of June, 1993, in which he created only $90 in revenues; (b) Petitioner's poor attitude; and (c) Petitioner's work ethic. Mr. Potter advised Petitioner that he would thereafter be expected to produce $2,500 per week in sales. Petitioner was counseled not to make negative comments, not to perform outside jobs on company time, and not to solicit from or do any work for Respondent's customers. The DAR listed suspension without pay or termination as future corrective action, if required. Petitioner refused to sign the June 8, 1993, DAR.

       
       

   31. Petitioner's attitude created problems as follows: (1) Mr. Carey had to ask Petitioner to leave a sales meeting because of his negative comments; (2) Petitioner disagreed with Mr. Carey over the proper way to complete required daily written sales reports; (3) Mr. Carey had to ask Petitioner to leave the office by 9:00 a.m. for his first appointment of the day; and (4) Petitioner resented not being allowed to answer the office phone even though company policy dictated that only the office manager, sales manager, or branch manager could answer the phone.

       
       

   32. Petitioner's testimony that Respondent offered him a job which would have reduced his income significantly is rejected as contrary to more persuasive evidence. Likewise, the undersigned rejects Petitioner's testimony that Ralph Potter physically attacked Petitioner in the men's room during an out-of-town meeting.

       
       

   33. Respondent discharged Petitioner on June 30, 1993. Petitioner's termination was the result of his unsatisfactory job performance and his failure to follow his supervisors' instructions. There is no persuasive competent

       substantial evidence to indicate that Respondent retaliated against Petitioner because he participated in a discrimination suit on behalf of a co-worker. To the contrary, Petitioner's employment record presents a history of problems with his supervisors.

       
       

   34. When Tim Carey became sales manager-in-charge, he and Ralph Potter warned Petitioner repeatedly that, regardless of his past working conditions, Petitioner would be expected to follow company policies. Petitioner's refusal to heed their advice and to increase his productivity resulted in job separation.

       
       

       CONCLUSIONS OF LAW

       
       

   35. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

       
       

   36. Section 760.10 (7), Florida Statutes, provides as follows in pertinent part:

       
       

       It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

       
       

   37. It is not an unlawful employment practice to observe the terms of ". .

       . a system which measures earnings by quantity or quality of production, which is not designed, intended, or used to evade the purposes of ss. 760.01-760.10." Section 760.10 (8)(b), Florida Statutes. An employer may terminate an employee when he fails to meet bona fide requirements for a job. Id.

       
       

   38. In this case, Petitioner's sole claim is that Respondent retaliated against him for assisting his co-worker, Norman Arrington, in an unrelated discrimination suit. However, Respondent has not met the burden of proving his case by a preponderance of the evidence. McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973).

       
       

   39. In order to meet his ultimate burden of proof, Petitioner is required to first present a prima facie case that: (a) he engaged in statutorily protected expression; (b) he suffered an adverse employment action; and (c) there is a causal connection between the two. Meeks v. Computer Associates Intern, 15 F.3d 1013 (11th Cir. 1994). Petitioner participated in a statutorily protected activity when he assisted Norman Arrington in a discrimination case against Respondent. Thereafter, Petitioner suffered adverse employment action resulting in eventual job separation. Thus, the question becomes whether Petitioner proved the third element, causal connection.

       
       

   40. The courts have interpreted "the causal link requirement broadly; a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated." EEOC v. Reichhold Chem., Inc., 988 F.2d 1564, 1571-72 (11th Cir. 1993)(citing Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.), cert. denied, 474 U.S. 981(1985)). The undersigned concludes that Petitioner failed to show any causal relationship

       between his problems at work and his testimony on Mr. Arrington's behalf. Petitioner's testimony in this regard is not credible. Record evidence indicates that Petitioner's difficulty with following company policy predates his engagement in statutorily protected activity. Moreover, Petitioner's sales productivity began declining in November of 1992, before any of the alleged discriminatory acts occurred.

       
       

   41. On the other hand, Respondent presented persuasive evidence to support legitimate, nondiscriminatory reasons for each of the alleged adverse employment actions. Petitioner would not have been discharged if he had followed the reasonable instructions of his supervisors and increased his sales productivity.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Florida Commission on Human Relations enter a Final Order denying Petitioner's Petition for Relief.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of August, 1995.

SUZANNE F. HOOD, Hearing Officer Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1995.

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Petitioner's Proposed Findings of Fact

Petitioner did not file Proposed Findings of Fact.

Respondent's Proposed Findings of Fact

1-3 Accepted as modified in Findings of Fact 1-6.

4-5 Accepted as modified in Findings of Fact 9 & 14.

1. Accepted as modified in Findings of Fact 11 & 18.

2. Accepted in Findings of Fact 10, 13, 25, & 30.

3. Accepted in Findings of Fact 12 except the administrative case involved only one incident.

4. Accepted as modified in Findings of Fact 25-27.

5. Accepted in Findings of Fact 10.

6. Accepted in Findings of Fact 9 regarding leads. However, Petitioner never received a new key from Mr. Carey.

7. Accepted in Findings of Fact 28 & 29.

13-14 Accepted but unnecessary to resolution of case.

1. Accepted. See Findings of Fact 11, 33, & 34.

2. Not a finding of fact. More of a conclusion of law.

COPIES FURNISHED:

Linda G. Miklowitz, Esquire Post Office Box 14922 Tallahassee, Florida 32317-4922

James M. Nicholas, Esquire Post Office Box 814 Melbourne, Florida 32902

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149

Dana Baird General Counsel

325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-004479

Orders for Case No: 94-004479