STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAY F. KELLEY,

Petitioner,

vs.

WATERWISE, INC.,

Respondent.

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) Case No. 06-0954

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RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this case on June 15, 2006, in Leesburg, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kay F. Kelley, pro se

Post Office Box 559

Center Hill, Florida 33514

For Respondent: Timothy Shea, Esquire

800 North Ferncreek Avenue, Suite 9

Orlando, Florida 32803 STATEMENT OF THE ISSUE

Whether Respondent Employer is guilty of an unlawful employment practice by discrimination against Respondent on the basis of her age and gender (female).

PRELIMINARY STATEMENT

On August 31, 2005, Petitioner filed a Charge of Discrimination, based on her gender (female) and age, with the Florida Commission on Human Relations (FCHR).

On February 9, 2006, FCHR entered its Determination: No Cause.

Petitioner timely filed her Petition for Relief. On or about March 21, 2006, the Petition for Relief was referred to the Division of Administrative Hearings for a disputed-fact hearing.

At the disputed-fact hearing on June 15, 2006, Petitioner testified on her own behalf and had four exhibits admitted in evidence. Respondent presented the testimony of Jack A. Barber and had four exhibits admitted in evidence.

No transcript was provided.

Each party timely filed a Proposed Recommended Order. Both have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is female.

   
   

2. Petitioner initiated her retirement from Respondent employer in February 2005 at age 65.

3. No evidence was presented at the disputed-fact hearing to establish the number of persons employed by Respondent at any

   material period of time. However, because Respondent has acknowledged in its Proposed Findings of Fact that Petitioner is an "aggrieved person," as that term is defined in Section 760.02(10), Florida Statutes, and has further acknowledged that at all times material to this cause, Respondent was an "employer" as that term is defined in Section 760.02(7), Florida Statutes, and Respondent is hereby found to be a statutory employer under Chapter 760, Florida Statutes.

4. Petitioner began part-time employment as an Order Entry/Mail Clerk with Respondent in July 1983. At the same time, and dating from May 30, 1983, Petitioner was also employed part-time with Sears, Roebuck and Company (Sears).

5. In 1984, Petitioner accepted full-time commission sales employment with Sears and continued to work part-time for Respondent Employer. She worked full-time for Sears and part- time for Respondent until July 1996.

6. Between 1983 and 1996, Jack Barber, president and CEO of Respondent Employer, repeatedly asked Petitioner to come to work full-time for Respondent. In July of 1996, Petitioner accepted full-time employment as Chief Finance Officer/Human Relations Director of Respondent Employer. At the time of her transition to her new, full-time position with Respondent, Petitioner was doing accounts receivable, accounts payable, payroll, and general ledger bookkeeping.

7. Petitioner was qualified for all positions she held while employed by Respondent. At all times material, Petitioner was an exemplary employee.

8. Petitioner testified that, as an inducement to give up her full-time Sears employment with its vested pension and excellent pay and benefits, Mr. Barber "guaranteed [her] in writing a five percent yearly increase in salary with no end date."

9. It was Petitioner's position that between July 1996 and February 2005, when she retired, Respondent had a written employment contract with her, which contract had been negotiated in July of 1996, and that this contract provided for Petitioner to receive a raise equivalent to five percent of her base pay; one week of vacation in 1996; three weeks of vacation in 1997 and 1998; three days compensatory time (personal holidays) in 1996; six days of compensatory time (personal holidays) in 1997 and 100 percent medical insurance. The document she represented as her contract of employment was admitted in evidence as Petitioner's Exhibit One.

10. Petitioner's Exhibit One is not dated. It also states no ending date and does not contain the signature of either Petitioner or Mr. Barber. It resembles arithmetic computations without setting out in sentences either Petitioner's or Respondent's obligations one to the other. It only lists the

    years 1996, 1997, 1998, and 1999, with regard to salary; only

    
    

    1996, 1997 and 1998, as to vacation; and only 1996 and 1997 as to "comp. time." It bears the expression: "$150,000.00 + - 5 yrs." Furthermore, Petitioner testified that the exhibit does not encompass the whole of the parties' oral understanding at that point-in-time, because she believes that Mr. Barber also orally assured her that the five percent annual salary increases would continue as long as she was employed by Respondent, that vacation time and personal holiday time would accrue annually based upon Petitioner's original date of hire in 1983; and that Respondent company would institute a retirement plan in the near future.

11. Mr. Barber testified that he had intended his notes and computations in 1996 on Petitioner's Exhibit One to only show that he anticipated if Petitioner came to work for Respondent in 1996: that he would guarantee Petitioner a term of employment up to at least five years; that there would be at least three years (1997, 1998, and 1999) with a five percent increase for her each year; and that, based on the foregoing prognosis, Petitioner could expect to earn at least $150,000.00 over a five-year period. Mr. Barber never intended Petitioner's Exhibit One to be a contract of employment.

12. Petitioner candidly admitted that Respondent granted her five percent pay increases in January 1997, 1998, and 1999.

13. Petitioner calculated that, without bonuses, she was paid half of $27,300.00 in 1996 because she started in July;

    $28,665.00 in 1997; $30,097.60 in 1998; and $31,720.00 in 1999.

    
    

14. Petitioner accepted Respondent's figures that her

    
    

    annual W-2 compensation 1999	(including	bonuses) was as follows: $33,635
    2000		$31,720
    2001		$32,830
    2002		$33,015
    2003		$32,330
    2004		$31,720

    
    

15. Therefore, Petitioner's income without bonuses from Respondent for her first five years of employment (1996-2000) may have been less than $150,000.00.

16. It was Petitioner's further position that the Respondent Employer had "contracts" similar to Petitioner's Exhibit One with other employees, specifically Greg Barber and Rob Humphrey (both younger male employees), which were honored by Respondent and that Petitioner's "contract" was not honored by Respondent. Petitioner claimed that Jack Barber's honoring the younger men's contracts, and not hers, constituted the acts of age and gender discrimination she complains of here.

17. No contract between Respondent Employer and Greg Barber was presented for comparison with Petitioner's Exhibit

    One.

    
    

18. No contract between Respondent employer and Rob

    
    

    Humphrey was presented for comparison with Petitioner's Exhibit One.

19. Petitioner maintained that she "performed many of the same duties as Barber and Humphrey who were younger than she was at all times material and that she received less compensation."

20. Greg Barber is the son of President/CEO Jack Barber.

    
    

    Since March 1985, Greg Barber has been the company's general manager and sales manager. Greg Barber also acts as co-CEO with his father. At all times material, he received a base salary plus commission based on total company sales. Greg Barber's responsibilities also included overseeing order entry personnel, accounts receivable/payable personnel, purchasing/inventory control personnel, mailroom personnel, shipping/warehouse personnel, service department personnel, and the receptionist.

    He also answered customer service calls and took phone orders.

    
    

21. Rob Humphrey is the salesman responsible for Respondent's United States and Canadian sales. At all times material, he was paid a base salary plus commission based on Respondent's sales in the United States and Canada. Mr. Humphrey's responsibilities included training and overseeing a

    staff of two or three phone order entry/customer service personnel while also taking phone orders himself.

22. At all times material, Petitioner was a salaried, non- commission employee.

23. Petitioner claims that she performed many duties outside her job description. Specifically, she contends that she assisted both Rob Humphrey and Greg Barber in doing their jobs. Specifically, she described sharing responsibility with Greg Barber for making decisions regarding copy writing, marketing, in-putting of advertising materials, and direct marketing mailings. No witness corroborated Petitioner's assessment of her assistance to Greg Barber or Rob Humphrey, but at most, Petitioner only irregularly assisted these commissioned salesmen with their clerical or office tasks. She did not sell product.

24. Despite Petitioner's contention that she performed some of the same services that Greg Barber and Ron Humphrey performed, it appears that the majority of the services she performed for Respondent were very different from theirs. It further appears that Humphrey and Barber performed services that were different from each other. Greg Barber had far more authority and responsibility than either Mr. Humphrey or Petitioner, and because of his position, Greg Barber received a commission out of Rob Humphrey's commission. In other words, as

    Mr. Humphrey's sales manager, Greg Barber received a percentage commission of all sales by whomever the sale was made and this increased Greg Barber's overall income. Likewise,

    Mr. Humphrey's responsibilities, particularly the necessity for him to deal with Canadian sales and marketing problems, varied greatly from Petitioner's responsibilities, which were primarily clerical or financial and home office based, and differed from Greg Barber's responsibilities, which were concentrated on home office management and sales in the United States.

25. Petitioner maintained that other employees received raises when she did not. However, Respondent demonstrated that the annual base wage for Petitioner from 1999 through and including 2004, was $31,720.00; for Mr. Humphrey was $13,000.00; and for Mr. Barber was $47,840.00. Respondent further demonstrated that the base wages for all three employees remained constant from 1999 through 2004, and that Messrs. Barber and Humphrey, the commissioned employees, had fluctuations in their total gross wages during the five years from 1999 through 2004, due to fluctuations in the company sales and their resultant commissions.

26. Rob Humphrey's W-2 compensation was below Petitioner's W-2 compensation from 1999 to 2001 and slightly exceeded hers from 2002 through 2004. Greg Barber's W-2 compensation exceeded Petitioner's W-2 compensation consistently from 1999 through

    2004. Respondent demonstrated that in the year 2003, Respondent company suffered substantial losses, which affected the salesmen's commissions, and thus their overall income, but Petitioner's and everyone else's base wages remained the same, regardless of business conditions.

27. How bonuses were calculated is unclear from the evidence, but in 1999, Petitioner's bonus was higher than either Mr. Humphrey's or Greg Barber's bonus. In 2000, no one got a bonus. In 2001, Greg Barber's bonus was $2,360.00;

    Mr. Humphrey's bonus was $540.00; and Petitioner's bonus was

    
    

    $1,110.00. In 2002, Greg Barber's bonus was $2,500.00;

    
    

    Mr. Humphrey's bonus was $665.00; and Petitioner's bonus was

    
    

    $1,295.00. No one received a bonus from 2003-2004.

    
    

28. One of Petitioner's responsibilities while employed by Respondent was to assist Greg and Jack Barber in writing an employee handbook. This handbook clearly states that all of Respondent's employees are "at will" employees. That means that no guarantee of continued employment existed for any employee. Petitioner acknowledged that she had read that part of the handbook.

29. The handbook also provides a reasonable procedure for someone, who believes that he or she is being discriminated against, to report that allegedly discriminatory treatment. Petitioner acknowledged that she never complained of sex

    discrimination or age discrimination while employed by Respondent. Petitioner also was aware she could file an Equal Employment Opportunity Commission complaint. She never did this either.

30. Petitioner did complain to Jack Barber that her job was of greater importance than that of Greg Barber or Rob Humphrey, and she did repeatedly lodge her concerns with Jack Barber that her pay in comparison to theirs was inappropriate. Although denied by Mr. Barber, Petitioner is more credible that she asked for a five percent increase each year. In response to one of her complaints, Jack Barber "evened out" a bonus for her.

31. In early 2005, Petitioner again approached Jack Barber regarding what she considered to be her "promised five percent annual increases." Petitioner and Jack Barber met several times during the months of April and May 2005. When their negotiations were not fruitful, Petitioner gave notice of retirement and left Respondent's employ on June 3, 2005, at age

1. It had been her prior intent to continue working full-time for Respondent through the end of the year 2005. She hoped to continue working for Respondent part-time for several years beyond 2005.

   1. Petitioner testified that all employees received a retirement plan in 2001, but that she was not granted the promised yearly five percent increase in January 2000 and was

      not provided any reason or explanation for the decline in her base pay after that. She calculated that if the five percent per year increase had been given her, she would have received an additional $63,798.47, provided she had worked to the end of 2005, as she had intended.

      CONCLUSIONS OF LAW

      
      

   2. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1), 120.569, and 760.11, Florida Statutes.

   3. Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to

      discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges or employment because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

      
      

   4. The FCHR and Florida courts have determined the federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

   5. The United States Supreme Court in McDonnell-Douglas

      
      

      Corporation v. Green, 411 U.S. 792 (1973) and Texas Department

      of Community Affairs v. Burdine, 450 U.S. 248 (1981), established the analysis to be used in cases alleging discrimination under Title VII, which is persuasive in cases such as this one. That analysis is reiterated and defined in the case of St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

   6. Pursuant to those cases, Petitioner has the burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. If a prima facie case is established by Petitioner, Respondent must articulate a legitimate, non- discriminatory reason for the action taken against Petitioner. If Respondent does so, the burden then shifts to the Petitioner to go forward with evidence to demonstrate that the Respondent's proffered reason is merely a pretext for unlawful discrimination.

   7. In order to establish a prima facie case, Petitioner must establish that she is a member of a protected class; that she is qualified for the position in question; that she was subject to an adverse employment decision; that she was treated less favorably than similarly situated persons outside her protected class; and that there is some causal connection between her membership in the protected class and the adverse employment decision made. See Canino v. United States EEOC, 707

      F.2d 468 (11th Cir. 1983); and Smith v. Georgia, 684 F.2d 729

      
      

      (11th Cir. 1982).

      
      

   8. Petitioner failed to articulate any adverse employment action to which she has been subjected by Respondent, except for the delay from 1996 until 2001 in Respondent's establishing a retirement plan which actually affected all employees, and Respondent's failure to provide Petitioner with five percent annual pay increases for 2000, 2001, 2003, 2004, and 2005, which she considered "contractual."

   9. She has claimed that she was not given raises while the younger male employees, Greg Barber and Rob Humphrey, were given raises. Petitioner seeks $63,798.47 in wages she believes she should have been paid pursuant to her "contract" with Respondent (Petitioner's Exhibit One).

   10. The evidence and/or admissions of Respondent permit the legal conclusion that Petitioner is female, and as such, she is part of a protected class; that she is also part of a protected class due to her age; and that Respondent is a "employer," pursuant to Chapter 760, Florida Statutes.

   11. It is clear from the testimony of Mr. Barber and Petitioner that they never had a full meeting of the minds on their so-called "employment contract." It is essential to the creation of a contract that there be a mutual or reciprocal assent to a certain and definite proposition. See Hewitt v.

       Price, 222 So. 2d 247 (Fla. 3rd DCA 1969); Goff v. Indian Lake Estates, Inc., 178 So. 2d 910 (Fla. 2nd DCA 1965); Fincher V.

       Belk-Sawyer, Co., 127 So. 2d 130 (Fla. 3rd DCA 1961); Mann v. Thompson, 100 So. 2d 634 (Fla. 1st DCA 1958). Without a meeting of the minds of the parties on an essential element, there can be no enforceable contract. Goff v. Indian Lakes Estates, Inc., supra, Hettenbaugh v. Keyes-Ozon-Fincher Ins., Inc., 147 So. 2d

       328 (Fla. 3rd DCA 1962). In order to form a contract, the parties must have a definite and distinct understanding, common to both and without doubt or difference, or there is no assent and therefore no contract. O'Neill v. Corporate Trustees, Inc.,

       376 F.2d 818 (5th Cir. 1967); Minsky's Follies of Fla., Inc., v.

       
       

       Seenes, 206 F.2d 1 (5th Cir. 1953). It is necessary that there be a meeting of the minds as to all essential terms of the contract, without which there can be no enforceable contract.

       Ball v. Yates, 29 So. 2d 729 (1946); Metropolitan Dade County v. Estate of Hernandez, 591 So. 2d 1124 (Fla. 3rd DCA 1992); Zell v. Cobb, 566 So. 2d 806 (Fla. 3rd DCA 1990); 777 Flagler Co., v.

       Amerifirst Bank, 559 So. 2d 1210 (Fla. 4th DCA 1990)

       
       

   12. Viewed most favorably toward Petitioner, the evidence only establishes that Respondent did not honor Petitioner's understanding of their agreement. Respondent did employ Petitioner for more than five years, and there was no indication Respondent would terminate such a fine employee as Petitioner,

       but Petitioner unilaterally terminated her own employment by retirement. If Mr. Jack Barber's notation "$150,000.00 + - 5 yrs.", constituted a promise to pay Petitioner $150,000.00 in the first three years or five years of her employment or to pay that amount at all is up to an Article V Court.

   13. Only the issue of an unlawful employment action vel

non, pursuant to Chapter 760, Florida Statutes, can be determined in this forum, and no nexus between Respondent's failure to fulfill Petitioner's expectations under the so-called "contract" and age or gender animus or discrimination has been demonstrated. The contracts of Greg Barber and Rob Humphrey are not in evidence for comparison, but neither Greg Barber nor

Rob Humphrey is an appropriate comparator for Petitioner, inasmuch as Petitioner's responsibilities and method of compensation were different than those for either Greg Barber or Rob Humphrey. Petitioner did not establish that either

Rob Humphery or Greg Barber were performing work substantially similar in skill, effort, responsibility, or working conditions to her own. At most, the credible material evidence shows that Respondent was consistent in its treatment of Petitioner as compared to Greg Barber and Rob Humphrey.

RECOMMENDATION

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

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

DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. 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 2nd day of August, 2006.

COPIES FURNISHED:

Kay F. Kelley

Post Office Box 559

Center Hill, Florida 33514

Timothy Shea, Esquire

800 North Ferncreek Avenue, Suite 9

Orlando, Florida 32803

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

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: 06-000954

Orders for Case No: 06-000954