STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY L. COHEN,

Petitioner,

vs.

CULLIGAN’S OF FLORIDA,

Respondent.

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) Case No. 03-1661

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RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) conducted the final hearing in this case on July 9, 2003, in Gainesville, Florida.

APPEARANCES

For Petitioner: Gregory L. Cohen, pro se

1446 Northeast 21st Avenue Gainesville, Florida 32609

For Respondent: Donald C. Works, III, Esquire

Keith L. Hammon, Esquire Jackson Lewis, LLP

390 North Orange Avenue, Suite 1285 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was subjected to discrimination in his employment by Respondent due to Petitioner's race in violation of Section 760.10(1).

PRELIMINARY STATEMENT

Petitioner filed a Complaint against Respondent with the Florida Commission on Human Relations (FCHR) on August 27, 2002, alleging race discrimination.

On or about April 7, 2003, the FCHR issued its Determination: No Cause.

On or about May 5, 2003, Petitioner filed a Petition for Relief with the FCHR. Subsequently, on or about May 8, 2003, the case was forwarded to DOAH for formal proceedings.

During the final hearing, Petitioner presented the testimony of one witness, himself. Petitioner also presented one composite exhibit. Respondent presented the testimony of two witnesses and

11 exhibits. The transcript of the proceedings was filed with DOAH on July 23, 2003.

Both Petitioner and Respondent filed Proposed Recommended Orders which have been reviewed and considered in the preparation of this Recommended Order.

All citations are to Florida Statutes (2002) unless otherwise

indicated.

FINDINGS OF FACT

1. Petitioner, who is black, was a Bottled Water Sales Representative for Respondent, who is in the water industry. Petitioner was hired by Respondent's employee Carl Wagoner in October of 2000.

2. Petitioner initially reported to Wagoner when he began working for Respondent. Petitioner then reported to Respondent's employee Joe Stanvich beginning at some point in 2001 until April or May of 2002. Petitioner then again reported to Wagoner for the remainder of Petitioner's employment.

3. Wagoner was the Bottled Water Sales Manager for Respondent’s Palatka, Gainesville, and Lake City locations.

4. The commission for a residential sale of bottled water was $48.00, and the commission for a commercial sale was $58.00. Eight dollars ($8.00) of every commission was withheld by Respondent and placed into a “charge back” account. If a customer cancelled their service within six (6) months of the sale, the Sales Representative was required to return the entire

   $48.00 or $58.00 commission to Respondent. Rather than have employees pull the money out of their pockets, Respondent deducted the commission from the charge back account.

5. Wagoner oversaw the charge back accounts of the Bottled Water Sales Representatives in Gainesville, Palatka, and Lake City.

6. Petitioner's testimony that he had learned from another employee in another sales district that the employee was receiving money from the charge back account via Wagoner is not credited. Wagoner was not the supervisor of the employee

   located in Respondent's Ocala, Florida facility and had no control over that employee's charge back account.

7. No Sales Representative under Wagoner’s supervision – white or black – ever received any money from his charge back account. Cancellations of contracts obviated the need for any refund to any sales person and usually inured to the benefit of the employee in that deductions for cancellations from the charge back account exceeded the amount that was owed by the sales person for the previously advanced commissions. No further repayments were required by employees on defunct contracts. Respondent has now discontinued the practice of a charge back account.

8. As established by Wagoner's testimony, a salesperson’s race played absolutely no role in the administration of the charge back account.

9. Petitioner was employed as a Bottled Water Sales Representative. Respondent has another position called “Household Sales Representative.” Household Sales Representatives sell equipment such as water softeners and home filtration systems.

10. During Petitioner’s initial interview, Wagoner told him that the Bottled Water Sales position was an entry-level position. Petitioner indicated that was satisfactory to him.

11. Household Sales Representatives make sales by performing demonstrations in potential customers’ homes. These demonstrations are typically conducted during the evening hours and on weekends. Consequently, a Household Sales Representative is not permitted to have other employment. Respondent maintains a written list of responsibilities and duties of the Household Sales Representatives, which expressly states that Household Sales Representatives are to devote all their time and energy to Respondent. No moonlighting is tolerated.

12. Petitioner is unaware of any Household Sales Representative who held a job with another employer at the time.

13. In addition to working for Respondent, Petitioner worked full time for the University of Florida. His hours of employment at the University were typically 3:00 p.m. to 1:00

    a.m. four days a week, Sunday through Wednesday. He also took a class at Santa Fe Community College.

14. Petitioner did not seek to become a Household Sales Representative and did not formally or informally apply for the position at any time before or during his employment with Respondent. Instead, Petitioner sought to sell the systems that the Household Sales Representatives sold. Respondent viewed such activity as a prohibition of the policy of not permitting Bottled Water Sales Representatives to sell household equipment.

15. As established by testimony of Respondent’s Senior Manager of Human Resources, Debbie Ordosch, several years ago Respondent’s salespeople were permitted to sell both household equipment and bottled water. The salespeople primarily focused on selling the softeners and household filtration systems, which had higher commissions. Respondent felt that the bottled water sales were being ignored. The company then began hiring sales people to sell strictly bottled water.

16. When Petitioner communicated with Ordosch and told her that he wasn’t being allowed to sell household equipment, Ordosch expressed her concern that Petitioner’s work schedule with the University of Florida would curtail his ability to set appointments. Ordosch subsequently explained to Petitioner that Respondent had performance standards to which all employees must be held in order to be fair. Petitioner agreed that was the right thing to do. Petitioner’s race was not a factor in connection with the Household Sales issue. Respondent’s practices applied to all employees, regardless of race.

17. Petitioner said that Respondent should make an exception for him and bend the rules a bit.

18. Household Sales Representatives undergo extensive training, including a test to gain a Respondent's "Culligan" license, learning about water analysis and the company’s equipment, on-site training with the Household Sales Manager,

    and attending a week-long “boot camp.” As a prerequisite to beginning this training, Petitioner was informed by Ordosch that he needed to speak with the manager for those positions.

    Petitioner did not follow up on this suggestion.

    
    

19. Respondent held regularly scheduled safety and sales meetings with mandatory attendance required of all Bottled Water Sales Representatives. Petitioner began missing these mandatory sales and safety meetings in June 2002, and does not dispute that he received advance notice of the meetings. He did, however, offer varying excuses for failing to attend the meetings, including that his “official work day” began at 8:00 and he was not “paid to be there at 7:30”; that Respondent’s attendance policy applied only to the “work day,” and did not specifically include meetings; or that he was en route to meeting a customer.

20. Petitioner did not have Wagoner’s permission to miss these meetings. His absence at a required meeting on June 6, 2002, earned him a verbal warning from Wagoner for missing the meeting.

21. Absence from a mandatory sales meeting on July 8, 2002, resulted in Wagoner's presenting Petitioner with a written Performance Incident Report. Absence from another mandatory meeting on July 11, 2002, resulted in Wagoner presenting Petitioner with a second written Performance Incident Report for

    missing the meeting. When Petitioner missed another mandatory meeting on August 8, 2002, he received a third written Performance Incident Report and was suspended for one week. He was warned that he would be terminated if he missed another mandatory meeting.

22. Petitioner was aware that Respondent had a published attendance policy which required an employee to call his supervisor an hour before the scheduled workday in the event of any potential absence.

23. Petitioner missed another mandatory meeting on September 19, 2002. He was en route to Lake City for an appointment with a potential customer. Petitioner's position, as established by his testimony at the final hearing, was that it was “down to crunch time” and Wagoner “could just fire me.”

24. After the meeting, Wagoner telephoned Petitioner and requested to meet with him that afternoon. Petitioner knew that the purpose of the meeting was to terminate him, and Petitioner did not meet with Wagoner that afternoon.

25. Respondent terminated Petitioner and sent him a written memorandum dated September 19, 2002, which stated in part, “Due to your refusal to meet with me as requested I am forwarding this to you via Certified Mail. As you are aware, all employees are required to attend mandatory sales meetings. In addition, you have also missed mandatory safety meetings as

    well. . . . Once again, you have missed another mandatory meeting, which took place today, September 19, 2002. Based on your unwillingness to follow Branch Policy and expectations as it pertains to mandatory meetings either Sales or Safety, your employment with Culligan Water is hereby terminated effective September 19, 2002.”

26. Upon receiving this memorandum, Petitioner called Wagoner a “fucking idiot,” told co-workers that he would kill Wagoner if he were to walk in, and Petitioner then handwrote on the memorandum “You were given a call before the meeting about me going to the EEOC office you idiot.”

27. The memorandum has a space for Petitioner's signature to be affixed and Petitioner wrote, “I will not sign something that’s not the complete truth.” Above the line for Wagoner’s signature, Petitioner wrote, “Idiot.” He then faxed the memorandum to Wagoner with a fax cover sheet that was addressed to “Idiot” and that read, “Did you think I would sign this bullshit.”

28. Wagoner has disciplined other white Bottled Water Sales Representatives for missing mandatory meetings in fulfillment of Respondent's policy. Petitioner’s race did not play any role in the decision to terminate him.

29. Petitioner was not replaced after he was terminated.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

31. Chapter 760, Florida Statutes, the "Florida Civil Rights Act of 1992," provides security from discrimination based upon race, color, religion, sex, national origin, age, handicap, or marital status.

32. The adverse effectuation of an employee’s compensation, conditions, and privileges of employment on the basis of race is an unlawful employment practice.

33. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for the adverse action. If Respondent is successful and provides such a reason, the burden shifts again to Petitioner to show that the proffered reason for adverse action is pre-textual. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

34. In the instant case, Petitioner has failed to establish a prima facie case of discrimination against employees by supervisors of Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for Relief.

DONE AND ENTERED this 20th day of August, 2003, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 August, 2003.

COPIES FURNISHED:

Gregory L. Cohen

1446 Northeast 21st Avenue Gainesville, Florida 32609

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

Tallahassee, Florida 32301

Keith L. Hammon, Esquire Jackson Lewis, LLP

390 North Orange Avenue, Suite 1285 Orlando, Florida 32801

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

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-001661

Orders for Case No: 03-001661