and 509.092, Florida Statutes,1/ by discriminating against and discharging Gary E. Boyd (Petitioner) based upon his age.
On June 22, 2017, Petitioner filed an Employment Complaint of Discrimination (Complaint) with the Florida Commission on Human Relations (Commission or FCHR). The Commission investigated the Complaint, which was assigned FCHR
No. 201701339. Following completion of its investigation, the Commission’s executive director issued a “Determination:
No Reasonable Cause,” dated May 18, 2018, finding that “no reasonable cause exists to believe that an unlawful employment practice occurred.” That same day, the Commission sent Petitioner a “Notice of Determination: No Reasonable Cause” (Notice) on the Complaint, which advised him of his right to file a Petition for Relief for an administrative proceeding on his Complaint within 35 days of the Notice, or a civil action within one year from the Notice. Petitioner timely filed a Petition for Relief with the Commission reiterating the allegations of his Complaint.
On June 27, 2018, the Commission filed a Transmittal of Petition with DOAH for assignment of an administrative law judge to conduct an administrative hearing on the Petition for Relief. The case was assigned to the undersigned and the final hearing was originally scheduled for August 27, 2018, was rescheduled for October 2, 2018, and was convened on that date.
At the final hearing, Petitioner testified on his own behalf and offered 16 exhibits, which were received into evidence as Petitioner’s P-A, P-K through P-O, P-Q through P-S, P-U, P-V, P-X through P-Z, and P-BB through P-DD. Mac Papers presented the testimony of two witnesses and offered six exhibits, which were received into evidence as Respondent’s Exhibits R-1 through R-6. The parties offered 15 joint exhibits, which were received into evidence as Joint Exhibits 1 through 15.
The proceedings were recorded and a transcript was ordered. The parties were given 30 days from the filing of the transcript to submit their proposed recommended orders. The one-volume Transcript of the hearing, separated into three binders, was filed on November 2, 2018. At Petitioner’s request, an Order Granting Extension of Time was entered, extending the date for filing the parties’ proposed recommended orders until
December 21, 2018. Mac Papers timely filed its Proposed Recommended Order on December 21, 2018. Thereafter, on
December 26, 2018, Petitioner filed a Proposed Recommended Order together with Petitioner’s Motion to Accept Petitioner’s [late- filed] Proposed Recommended Order. An Order Accepting Petitioner’s Late-Filed Proposed Recommended Order was entered on December 28, 2018. Both parties’ Proposed Recommended Orders have been considered in the preparation of this Recommended Order.
Mac Papers is a Florida corporation in the business of distributing paper and print, packaging, facility supplies, and office products. Mac Papers serves customers in nine states throughout the Southeast, including large commercial printers and businesses using large quantities of paper products or envelopes.
Mac Papers is an employer subject to Florida Civil Rights Act of 1992.
Petitioner is a former sales representative of Mac Papers.
Petitioner was employed by Mac Papers from June 24, 1987 to June 7, 2017, approximately 30 years. Petitioner was born on January 19, 1950, and was 67 years old when his employment was terminated with Mac Papers.
For all material times, Petitioner was a 100 percent commissioned sales representative, meaning he was paid a commission percentage on product sold. Petitioner was not paid a salary or hourly wage.
Since at least 2011, Ryan Chapman, general manager of Mac Papers’ Orlando branch, was Petitioner’s direct manager.
Dave Milleman, Mac Papers’ former senior regional vice president, was Ryan Chapman’s direct manager.
In the calendar year of 2011, Petitioner earned compensation equal to about $94,098.
In the calendar year of 2012, Petitioner earned compensation equal to about $97,990.
In the calendar year of 2013, Petitioner earned compensation equal to about $79,649.
In the calendar year of 2014, Petitioner earned compensation equal to about $73,287.
In the calendar year of 2015, Petitioner earned compensation equal to about $65,020.
In the calendar year of 2016, Petitioner earned compensation equal to about $58,178.
The parties stipulated that Petitioner’s compensation, for 2017, projected over 12 months, would equal about $112,000.
Petitioner was paid a $1,000 bonus for being Mac Papers’ Southeast division’s monthly sales contest winner in August 2016.
Petitioner was paid a $1,000 bonus for being Mac Papers’ Southeast division’s monthly sales contest winner in March 2017.
On April 9, 2017, a Sunday evening, Petitioner was arrested for Kidnapping/False Imprisonment and Domestic Battery of his wife.
Petitioner reported to work on April 12, 2017, and met with Ryan Chapman and Dave Milleman. Petitioner explained that he had been arrested on April 9, 2017, missed work the previous two days because he was in jail, and was required to wear an ankle monitor device as condition of bail.
Petitioner showed them his ankle monitor and told them that he could keep it covered with long pants and that it would not interfere with servicing any of his accounts.
Mac Papers had no written policy concerning ankle monitors. This was the first time that Mac Papers was aware of any of its employees having to wear one.
Petitioner was told that he could not service customers while wearing the ankle monitor.
Petitioner asked if he could work from home. He had worked from home several times while on medical leave, consistent with Mac Papers’ routine practice to accommodate its employees.
Petitioner’s request to work from home was denied and Mac Papers suspended Petitioner’s employment, without pay, effective April 12, 2017. Petitioner was provided a letter dated April 12, 2017 (Suspension Letter), from Dave Milleman and Ryan Chapman, on the subject of his recent arrest which stated:
Gary, it has also come to our attention that you were arrested Sunday on a domestic violence related charge. Though this arrest
did not occur during “work hours,” it did impact your ability to report to work on Monday 4/10 and Tuesday 4/11. What is concerning, is that you failed to advise your General Manager of this situation and therefore, left him in a difficult position while communicating with your customers.
Because you are wearing a Seminole County Electronic Monitoring Protection and Crime Tracking (E.M.P.A.C.T.) ankle monitor, you are prohibited from servicing or visiting customers and are on an unpaid leave of absence. Customers will be told that you are on a leave of absence due to personal reasons. This unpaid leave of absence will continue up to 6/1/2017. Your benefits will continue during this leave of absence; however, you are responsible for your portion of the monthly premium.
If this monitor is removed or all criminal charges are dropped before 6/1/17, you may resume servicing your customers. If the criminal charges are still pending as of 6/1/2017, your employment with Mac Papers will be terminated. However, you will be re-hirable in the event that said charges are dismissed.
Once you receive a disposition or finding, please contact Kathy Wentworth, Director
H.R. A conviction of a violence related charge, may impact your employment with Mac Papers.
You have attested to your manager that you have never been arrested or convicted of a similar crime in the past. To validate this assertion, we will run a nationwide criminal check. Your employment may be affected if your statements prove to be untruthful.
Please acknowledge your receipt and understanding by signing below.
On April 12, 2017, Petitioner signed the Suspension Letter, as requested.
That same day, Mac Papers suspended Petitioner’s email account with Mac Papers and he was completely cut off from the company.
Petitioner’s background check came back five days later, on April 17, 2017, which corroborated Petitioner’s statement that he had no criminal history.
While Petitioner was suspended, his customer accounts were assigned to other sales representatives, Tyler Moore,
age 31, and Mike Miller, who is 10 years younger than Petitioner.
Petitioner was able to secure an Order to remove the ankle monitor on May 25, 2017, one week prior to Mac Paper’s June 1, 2017, deadline.
The Order allowing removal of the monitor in the criminal case was secured upon Petitioner’s agreement that he would not object to a permanent injunction against him in the civil case.
That same day, May 25, 2017, the assistant state attorney referred Petitioner to participate in a Pre-Trial Diversion Program, one of the conditions of which was completion of the Batterer’s Intervention Program. The Batterer’s Intervention Program would last for a period of nine months and
required Petitioner to perform community service, refrain from drug or alcohol use or possession, and be subject to random alcohol testing. The assistant state attorney forwarded the contract for the Pre-Trial Diversion Program to Petitioner’s attorney.
On Friday, May 26, 2017, Petitioner forwarded to Kathy Wentworth, Mac Papers’ director of human resources, the assistant state attorney’s email containing the Pre-Trial Diversion Program contract.
Instead of honoring the terms of the Suspension Letter stating that Petitioner would be allowed to return to work upon removal of his ankle monitor, Mac Papers did not meet with Petitioner until Friday, June 2, 2017, on which date Ryan Chapman and Dave Milleman met with Petitioner to discuss conditions under which he would be permitted to return to work. Those conditions were set forth in a letter from Mr. Milleman and Mr. Chapman to Petitioner dated June 2, 2017 (Return to Work Letter), which stated:
Gary, thank you for providing detailed information about the Seminole diversion program and its requirements. It is our understanding that the Seminole County Electronic Monitoring Protection and Crime Tracking (E.M.P.A.C.T.) ankle monitor has been removed. It is also our understanding that if you successfully complete the
9 month program all charges resulting from your April 9th arrest will be dropped and you will not have a criminal record.
Based on the above understandings, we will allow you to return to your Sales Representative position effective Monday, June 5th. You will not be compensated for the period of time while you were suspended from employment. Your return to work is contingent on the following:
During our meeting on 4/12/17 (with both Dave and Ryan), you stated that you have an alcohol problem, and that this problem contributed to incident of domestic violence and your arrest. As driving is an essential function of your job, Mac Papers must ensure you can safely drive without danger to yourself or others. Additionally, we are concerned about whether your admitted alcohol problem will impact your ability to perform your sales function. Therefore,
We will run an MVR to confirm your drivers’ license validity and driver’s license record.
You must add Mac Papers Inc. as an interested party on your car insurance policy. This will allow Mac Papers operations department to confirm level and validity of coverage as well as be alerted when any change is made to the insurance coverage. Please touch base with Debi Donnelley with any questions.
If the company learns or has reason to believe that you have violated the terms of your intervention program or do not successfully complete the program on or before the required date, your employment with Mac Papers will be terminated.
You will contact our EAP vendor, Health Advocate, at 877-240-6863 to set up sessions with a counselor. You will provide them regular updates regarding your participation in the diversion program and provide them the results of all random alcohol tests. You will authorize the EAP to share the results of any alcohol test administered to you with Mac Papers. Failure to contact the EAP, failure to allow them to share test results or relevant information or an altered or positive test is grounds for termination. All of this is to ensure that you can safely perform the functions of your job, including driving.
During the following 9 months, you will be subject to random alcohol tests administered by Mac Papers or its testing provider. You will be contacted via the phone by HR and must report to a testing site within 30 minutes of notification. Failure to comply, an altered or test positive will be grounds for termination. Again, this is to ensure that you can safely perform the functions of your job, including driving.
You will again be responsible for servicing the following 26 accounts and will receive commission on all items sold:
[a chart with a listing of 26 accounts appeared here in the letter; C&S Printing, previously one of Petitioner’s accounts, was not listed.]
Additional performance requirements include:
Your goal is to add new accounts that qualify for our passport sales contest by December 2017.
Beginning Friday, June 9th, submit a strategy report to Ryan Chapman. This report should include calls made for the week to track progress for achievement of new customer and sales goals, as well as calls scheduled for the following week. Continue submitting such reports weekly throughout the remainder of 2017.
You are prohibited from contacting any reassigned accounts. These accounts were reassigned due to sales performance during your absence. Gary, we are both available to discuss.
And finally, the March 2017 mill claim for Direct One was resolved. This resulted in a loss of commission of $1,477. Additionally, during your absence it was discovered that during the conversion to the new operating system that February and March 2017 commission report generation was flawed.
The overhead expenses were not properly calculated. This resulted in the overpayment of commission to almost all employees who received commissions during this time frame. Your overpayment was a total of $5,371.13 (please see the breakdown below). This overpayment as well as the commission recovery due to the mill claim will be taken from the September/October/November check dates in equal amounts.
[a listing of alleged overpayments totaling
$5,371.13 appeared here in the letter.]
Nothing in this letter alters the at-will employment relationship between you and Mac Papers. Please acknowledge your receipt and acknowledgement of its terms by signing below.
We wish you the best as you return to work.
[Here, the letter provided lines for Petitioner and Ryan Chapman to sign and date.]
Later in the afternoon of June 2, 2017, Kathy Wentworth emailed Petitioner and forwarded a copy of the Return to Work Letter. The email stated “It is my understanding that you plan to review the document over the weekend and respond on Monday. Please scan and email back to me along with the signed diversion program document. Your return date will be the day following the date we receive the signed document.”
Petitioner did not agree with the terms of the Return to Work Letter.
Petitioner has consistently denied that he ever had an alcohol problem. Other than a hearsay opinion from a police officer2/ that Petitioner seemed intoxicated at the time of his arrest, there is no evidence that Petitioner has ever been intoxicated.
In the 30 years that Petitioner worked for the company, Mac Papers had never received a complaint from anyone regarding Petitioner’s drinking. Prior to Petitioner’s arrest, Mac Papers had never had a meeting with Petitioner regarding his use of alcohol. Petitioner’s driving records do not indicate any incidents involving alcohol.
Mac Papers is not opposed to off-duty drinking by its employees. It hosts a sales meeting every year at which it pays for an “open bar.”
Petitioner testified that he did not tell Mr. Chapman and Mr. Miller that he had a drinking problem. Rather, he told them that, ”like everyone else. I have a couple of drinks in the afternoon, and I don’t -- I don’t have a drinking problem.” Petitioner’s testimony in that regard is credited.
Just prior to his arrest and subsequent suspension, Petitioner serviced and was responsible for approximately
49 accounts, but the Return to Work Letter only returned 26 of Petitioner’s accounts. Among the accounts lost under the terms of the Return to Work Letter were five of Petitioner’s top
10 accounts.
C&S Printing (C&S) was one of the approximately
49 accounts that Petitioner had before his suspension, but was not listed as one of the 26 accounts that Petitioner would
receive under the Return to Work Letter. Rather, C&S was permanently reassigned to Mr. Miller.
Petitioner had serviced the C&S account for approximately 30 years. In 2016, C&S was Petitioner’s second highest revenue producing account. Petitioner maintained an excellent personal relationship with Buck Denzer, his sales contact at C&S; the two often had lunch together when Mr. Denzer was in Orlando.
Although Petitioner had been warned four years earlier, on April 3, 2013, that C&S purchases were down
48 percent and gross profit was down 30 percent in the first quarter, that warning only related to one 3-month period. There is no evidence of any other problem with the account, and it was not permanently reassigned from Petitioner until June of 2017. That reassignment was not acceptable to Petitioner.
Mac Papers contends that its “legitimate business reason” in reassigning C&S was based solely on sales for the month of May 2017. In that month, sales to C&S allegedly doubled.
Mr. Chapman wrote about that increase in the “Remarks” section of a sales chart that “May sales were double from previous 12 months.” That statement, however, is misleading.
At trial, Mr. Chapman explained that he meant to write that May sales were double the “previous 12 monthly average.”
On the chart, Mr. Chapman compared gross profit to sales, but the two are not the same. Gross profit can depend on a number of different variables, including profit margins, product mix, commissions, special commissions, and pricing and structure.
Although Mac Papers claims that the sizeable increase in sales to C&S in May of 2017 was the primary factor for permanently reassigning the account to Mr. Miller, the evidence is insufficient to show that the increase had anything to do with reassignment of the account.
Sales in the C&S account fluctuate. For example, Petitioner’s highest monthly sale to C&S in 2014 was $43,842, while the lowest monthly sale was $13,772. In 2015, the highest monthly sales amount was $28,910; the lowest monthly was
$11,562. In 2016, the highest monthly sale was $40,434, and the lowest monthly sale was $16,137.
Given the fluctuations, it is impossible to know what Petitioner’s sales in the C&S account would have been during
May 2017, versus sales for the same time period when the account was serviced by Mr. Miller.
Under the terms of the Return to Work Letter, Petitioner would lose all of the income from his accounts during his suspension. That income would go to Mr. Chapman and others who were assigned Petitioner’s accounts during Petitioner’s
suspension. Under the terms, Petitioner would receive substantially lower pay, and many of the conditions made Petitioner feel like a criminal. Petitioner disagreed with the reassignment of his accounts and the purported reason for their reassignment. Because of his disagreement with its terms, Petitioner did not sign the Return to Work Letter.
On Wednesday, June 7, 2017, Petitioner’s employment was terminated. A letter from Ryan Chapman to Petitioner
stated:
This is to inform you that your employment with Mac Papers is terminated effective immediately. We met with you on Friday, June 2, 2017 and discussed a number of conditions for you to fulfill to remain employed. One of those conditions, as outlined in the letter which you were given, is that “you are prohibited from contacting any reassigned accounts. These accounts were reassigned due to sales performance during your absence.”
Mac Papers has been notified by a customer representative that you contacted the customer and complained of the account being reassigned. You also complained about Mac Papers asking you to submit to random alcohol testing due to your statement to Mac Papers that you have an alcohol problem which may have contributed to your recent arrest for domestic violence.
It is wholly inappropriate to involve a customer in an internal personnel matter. Doing so shows not only poor judgment but is also something which Mac Papers directly prohibited you from doing less than one week ago.
Kathy Wentworth will work with you on final payroll matters and COBRA notification.
We wish you the best.
The customer that Petitioner had contacted was C&S. That contact was with Jeff Lambert at C&S, whom Petitioner had known for 30 years.
Petitioner’s contact with C&S was reported by Mr. Miller to Mr. Chapman, who told Mr. Chapman about Petitioner’s so-called “unauthorized conversation.”
Although Petitioner’s contact with C&S was inconsistent with the terms of the Return to Work Letter, Petitioner disagreed with that letter and never signed it.
After Petitioner was fired, Mr. Chapman permanently reassigned the C&S account to Mr. Miller. The C&S account was the only account taken from Petitioner that was permanently reassigned to Mr. Miller.
Petitioner’s criminal case was nolle prosequi on July 25, 2017.
The way that Mac Papers dealt with Petitioner’s domestic violence arrest was inconsistent with the way the company handled a similarly situated, younger employee.
In May of 2016, approximately 11 months prior to Petitioner’s arrest, Mac Papers’ sales representative Don Swift
was arrested for domestic battery on his wife during a Mac Papers’ convention in Las Vegas.
Mr. Swift had been employed by Mac Papers since June 14, 2002. At the time of his arrest, Mr. Swift was
39 years old.
Unlike Petitioner, Mr. Swift was not given a deadline to have his criminal charges dropped in order to keep his job.
Based on its knowledge of events following Mr. Swift’s arrest, Mac Papers was aware that it might take a significant period of time to obtain dismissal of domestic violence charges. It took six months for Mr. Swift’s charges to be dropped.
In contrast, after Petitioner was arrested for domestic violence on April 9, 2017, Mac Papers told him that unless the charge against him was dismissed by June 1st, 2017, less than two months from his arrest, his employment with Mac Papers would be terminated, and that, if terminated, he could only be rehired after his criminal charges were dropped.
There is no evidence that Mac Papers made an effort to determine if it was realistic to demand that Petitioner’s criminal charge be dropped by June 1, 2017, just 52 days from his arrest, to avoid termination.
Although Petitioner was able to obtain removal of his ankle monitor one week prior to the June 1st deadline, he was unable to obtain dismissal of the criminal charge by June 1,
2017, as required by Mac Papers in its April 12th Suspension Letter.
Rather than allowing Petitioner to return to work, Mac Papers, for all intents and purposes, terminated Petitioner on June 2, 2017, by insisting on numerous additional employment
conditions, reduction in compensation, and account reassignments that were understandably unacceptable to Petitioner.
Mac Papers treated Mr. Swift much differently than it treated Petitioner in a comparable situation. Mr. Swift was not terminated because he was not convicted. On the other hand, Petitioner, who also was not convicted, was terminated.
There is no evidence that Mr. Swift denied that he had committed violence against his wife, whereas Petitioner always denied the charge. Mr. Swift was warned. Petitioner was fired.
Instead of being terminated, Mr. Swift was given a “last chance final warning,” described by Mac Papers’ director of human resources, Kathleen Wentworth, as “a written warning advising him of his behavior, that it could not continue, and if further issues along these lines--were--came up he would be subject to termination.”
Mac Papers, through its human resources director, acknowledged that conviction is grounds for termination, while arrest is not. Nevertheless, Petitioner was actually, as well as constructively, discharged because of his arrest.
Petitioner’s criminal charges were dropped on July 25, 2017, four months after his arrest; two months faster than dismissal of the charges against Mr. Swift.
Consistent with Petitioner’s insistence on his innocence, release of the 911 tape of the incident demonstrated Petitioner’s innocence and the charge against Petitioner was dismissed.
Although Mac Papers contends that it terminated Petitioner because he contacted C&S, based on the terms of the Suspension Letter, Petitioner’s termination actually occurred on June 1, 2017, because the charges against Petitioner had not been dismissed by that date as required. Petitioner was also constructively discharged prior to his contact with C&S by virtue of intolerable employment conditions insisted upon in the Return to Work Letter. The reasons set forth in that letter in an attempt to justify the reassignment of Petitioner’s top accounts and for terminating Petitioner were mere pretext.
The evidence does not support the statement in the Return to Work Letter that Petitioner’s accounts were reassigned to others due to sales performance during Petitioner’s suspension. Mac Papers’ purported reasons for reassignment are set forth in the “Remarks” column in a chart of reassigned accounts listed in Joint Exhibit 2-G. For instance, similar to the reason given for reassignment of C&S, the alleged reason for
reassigning the Business Cards Tomorrow (BCT) account was due to “increased sales.” According to the remarks, “sales increased 63% over the previous 12 months in April and May when Gary was out.”
BCT was Petitioner’s third largest revenue producing account in 2016. When Petitioner received the account in 2012, its averaged monthly gross profit was $1,250, which is $15,000 a year. Petitioner doubled the account in four years. In 2016, the average monthly profit was $2,489, or $29,871 in gross profit for the year.
Mr. Chapman received the reassigned BCT account. In contrast to remarks indicating increased sales, the chart shows that gross profit fell from $3,829 in April (the month Petitioner lost the account) to $2,812 in May, when the account was serviced by Mr. Chapman, a substantial decline in gross profit.
On the other hand, there are accounts listed that Petitioner retained and were not taken away despite increased gross profit during Petitioner’s suspension. In other words, the evidence suggests pretext, as opposed to legitimate business reasons, for reassigning Petitioner’s larger revenue-generating accounts.
Another reassigned account, the Orange County School Board account, was reassigned purportedly based on notes
provided by a salaried sales person who was servicing the account during Petitioner’s absence. According to those notes, although Petitioner had been servicing the account for four years, “no one in the account knew they had an account manager.” Those notes, however, are inconsistent with Petitioner’s testimony that he always serviced the account. As the Orange County School Board account was Petitioner’s sixth largest account at the time of his suspension, Petitioner’s testimony is more likely and is credited.
Similarly, the statement in the remarks of the
H&H Printing account, Petitioner’s seventh largest account, that Petitioner “is not involved or making regular calls,” is inconsistent with the evidence. Rather, the evidence shows Petitioner’s substantial attention to the account over the years. Petitioner grew the account from its average yearly gross profit of $8,832 in 2012 to $13,453 in 2016.
The inconsistences between the evidence and the alleged reasons for the reassignments show that the reasons given are mere pretext, as opposed to legitimate business reasons.
Further evidence of Mac Papers’ true intent toward Petitioner is found in historical reassignment of Petitioner’s accounts over the years to younger employees after Petitioner had grown the accounts. For instance, Moran South, Orlando
Envelope Company (Moran Printing) was one of Petitioner’s original accounts which he had serviced since he was hired by Mac Papers in 1987. Petitioner had grown the Moran Printing account from $1,500 a month in sales to between $3 and $4 million dollars a year.
Mac Papers took the Moran Printing account from Petitioner in 2012. It was his largest account, representing approximately $5,000 per month in Petitioner’s personal income, and had become one of Mac Papers’ biggest accounts in its Orange County branch.
When taken from Petitioner, the Moran Printing account was given to Mr. Miller, who, at the time, was a new sales representative who had been working for Mac Papers for just
a year.
Mr. Chapman testified that he, together with Mr. Milleman and Mac Papers’ vice-president of national accounts, Jeff Harris, were very concerned about the Moran
Printing account because they were having issues with credit and the follow up of initiatives. He testified that the decision to reassign the account was made because of Petitioner’s “lack of engagement” with the account.
The explanation that the Moran Printing account was reassigned because of Petitioner’s lack of engagement is not credible. The explanation is at odds with the importance
Petitioner attached to the account and its growth over the years under Petitioner.
After the Moran Printing account was taken, Petitioner was given a number of smaller accounts. Some were worthless, and others he grew. One of those accounts he grew was the BCT account which, after that growth, was taken from him upon his suspension in 2017.
Mac Papers' purported legitimate business reasons for reassigning those accounts and other accounts to younger employees were not convincing.
Before Petitioner’s arrest, Mr. Chapman had asked Petitioner several times about when Petitioner was going to retire. On at least one occasion, Mr. Chapman called Petitioner into his office and ask, “When are you going to retire?” and stated, “You’re Mac Orlando’s oldest sales person.”
On the occasions when Mr. Chapman spoke to Petitioner about retirement, Petitioner felt pressured to retire.
Mr. Chapman denied pressuring Petitioner to retire. These statements, taken alone, are arguably insufficient to show any intent to discriminate. However, when taken with other evidence of the ways Petitioner was treated differently upon his arrest than a younger, similarly situated employee, together with evidence of reassignment of Petitioner’s accounts to younger
employees, is indicative of Mac Papers’ intent to discriminate against Petitioner because of his age.
Mac Papers' purported non-discriminatory "business" reasons for its decisions to reassign Petitioner's accounts and terminate Petitioner are unpersuasive in light of the preponderance of evidence which shows that Mac Papers discriminated against Petitioner because of his age.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. and Fla. Admin. Code R. 60Y-4.016(1).
The legislative scheme contained in sections 760.01–
760.11 and 509.092, Florida Statutes, is known as the FCRA.
Section 760.10(2)(b) of FCRA prohibits discrimination in the workplace. Among other things, the Act makes it unlawful for an employer:
To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual’s status as an employee, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.
§ 760.10(b)(2), Fla. Stat.
FCRA incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws
specifically set forth under Title VII of the Civil Rights Act of 1964, as amended. See 42 U.S.C. § 2000e, et seq. Further, as noted by the Florida Fourth District Court of Appeal in City
of Hollywood v. Hogan, 986 So. 2d 634 (Fla. 4th DCA 2008):
The Florida Civil Rights Act of 1992 (FCRA) prohibits age discrimination in the workplace. See § 760.10(1)(a), Fla. Stat. (2007). It follows federal law, which prohibits age discrimination through the Age Discrimination in Employment Act (ADEA).
29 U.S.C. § 623. Federal case law interpreting Title VII and the ADEA applies to cases arising under the FCRA.
986 So. 2d at 641 (citing Brown Distrib. Co. of W. Palm Beach v.
Marcell, 890 So. 2d 1227, 1230 n.1 (Fla. 4th DCA 2005)).
As developed in federal cases, a prima facie case of
discrimination may be established by statistical proof of a pattern of discrimination, or on the basis of direct evidence which, if believed, would prove the existence of discrimination without inference or presumption. Usually, however, direct evidence is lacking and one seeking to prove discrimination must rely on circumstantial evidence of discriminatory intent, using the shifting burden of proof pattern established in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). See
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
Petitioner did not present any statistical or direct evidence of discrimination, and otherwise failed to present a prima facie case of discrimination based on disparate treatment
based upon his age. Accordingly, the McDonnell burden shifting
framework applies.
To prevail on an age discrimination claim, an employee must prove that: (1) he is a member of a protected class because of his age; (2) he was qualified for the position;
he was subjected to an adverse employment action; and
his employer treated similarly situated employees of a “different” age more favorably. See Johnny L. Torrence v.
Hendrick Honda Daytona, Case No. 14-5506 (Fla. DOAH Feb. 26, 2015; Fla. FCHR May 21, 2015); see also Boles v. Santa Rosa
Cnty. Sheriff’s Off., Case No. 07-3263 (Fla. DOAH Dec. 5, 2007; Fla. FCHR Feb. 8, 2008).
Once an employee establishes a prima facie claim of age discrimination, the burden shifts to the employer to proffer a legitimate non-discriminatory reason for its adverse employment decision. The burden shifts back to the employee to directly rebut and to prove that the proffered reason is pretext for age animus. Holifield, 115 F.3d at 1555 (11th Cir. 1997).
“Demonstrating a prima facie case is not onerous; it
requires only that the plaintiff establish facts adequate to permit an inference of discrimination.” Holifield, 115 F.3d at
1562; cf., Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000) (“A preponderance of the evidence is ‘the greater weight of the
evidence,’ [citation omitted] or evidence that ‘more likely than not’ tends to prove a certain proposition.”).
As to the first element, it is undisputed that Petitioner’s age, 67, is in an age-protected class. As for the second element, it is undisputed that Petitioner was qualified for the sales representative position. Petitioner can also satisfy the third element of a prima facie case because he
suffered an adverse employment action when he was suspended without pay following his arrest, deprived of earnings from his accounts during his suspension, and, thereafter, terminated.
Petitioner also satisfied the fourth element of a prima facie case. Petitioner demonstrated that Mac Papers
treated a similarly situated employee, Mr. Swift, who was of a different age class, more favorably. Johnny L. Torrence v.
Hendrick Honda Daytona, Case No. 14-5506 (Fla. DOAH Feb. 26, 2015; Fla. FCHR May 21, 2015).
To demonstrate that similarly-situated employees outside his protected class were treated more favorably, Petitioner must show that a “comparative” employee was “similarly situated in all relevant respects,” meaning that an employee outside of Petitioner’s protected class was “involved in or accused of the same or similar conduct” and treated in a more favorable way. Id.; see also Burke-Fowler v. Orange Cnty.,
447 F.3d 1319, 1323 (11th Cir. 2006)) (it is required that the
quantity and quality of the comparator’s conduct be nearly identical).
Just 11 months prior to Petitioner’s arrest,
Mac Papers reacted much more favorably to Mr. Swift, who was a similarly situated, although younger, sales representative arrested for domestic battery. Mr. Swift, was not suspended or given a deadline to have his criminal charges dropped in order to keep his job. And, there is no evidence that Mr. Swift’s accounts were reassigned or taken away.
While Mac Papers argues that Mr. Swift was different because he never had to wear an ankle monitor, the evidence does not support that difference as a legitimate reason for suspending Petitioner or reassigning Petitioner's accounts to younger employees during his suspension.
Although the evidence indicated that Petitioner requested to work while covering his ankle monitor or to work from home while it was on his ankle, both requests were denied.
Mac Papers argues that the reason for the denial was because it feared that its customers’ relations could suffer if its customers discovered the monitor. That reason, however, was not the real reason that Mac Papers refused Petitioner’s requests. Mac Papers' unreasonable refusal to allow Petitioner to cover the monitor while servicing accounts, or to work from home, together with historical and contemporary reassignment of
Petitioner's accounts, demonstrates the pretext and Mac Papers' discriminatory intent. In other words, the evidence showed that Mac Papers’ suggested reason for its refusal was false, in an attempt to legitimize its age discrimination against Petitioner. A reason is pretext if “it is shown both that the reason was false, and that discrimination was the real reason.” Brooks v. Cnty. Comm'n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163
(11th Cir. 2006).
Moreover, the purported fear of damaging customer relations ignores Petitioner's successful efforts in growing and developing those account relationships over the years.
Mac Papers' pretextual use of the ankle monitor issue was further demonstrated by the fact that, even though Petitioner was able to obtain removal of the monitor a week prior to the arbitrary deadline, Mac Papers did not allow Petitioner to resume his job as promised. Rather, it added further conditions in the Return to Work Letter, including the reassignment of Petitioner's top five accounts, and the imposition of further investigations and monitoring. The Return to Work Letter also falsely accused Petitioner of admitting to alcohol abuse.
While Mac Papers argues that Mr. Swift was also required to submit to random alcohol testing and had a formal disciplinary counseling, there is no evidence that Mr. Swift
lost accounts as a result of his arrest, or was required to sign a document reassigning his top accounts.
As set forth in its July 7, 2017, letter to Petitioner (Termination Letter), Mac Papers purports that the reason Petitioner was terminated was because he contacted one of his reassigned accounts, as prohibited in the Return to Work Letter. The intolerable terms in that Return to Work Letter, however, were never agreed to by Petitioner and demonstrate Mac Papers' true intent to continue to discriminate against Petitioner. The offending conditions of account reassignment to younger employees were taken prior to Petitioner's purported contact with a reassigned account.
Moreover, Petitioner was effectively terminated on June 1, 2017, pursuant to the terms of the earlier announcement in the April 12, 2017, Suspension Letter that he would be terminated if his charges were not dismissed prior to June 1, 2017. In addition, the imposition of additional conditions after that date, in essence, operated to constructively discharge Petitioner prior to his contact with a reassigned account.
As was shown for the purported reasons for reassigning Petitioner’s accounts, the preponderance of the evidence effectively rebutted Mac Paper’s alleged reason for
terminating Petitioner, and demonstrated that it was mere pretext.
As Petitioner brought this action as an administrative proceeding pursuant to section 760.11(4)(b), Florida Statutes, as opposed to a civil action in court pursuant to section 760.11(4)(a), the relief under the Act to which he is entitled is authorized in section 760.11(6), which provides in pertinent part:
If the administrative law judge, after the hearing, finds that a violation of the Florida Civil Rights Act of 1992 has occurred, the administrative law judge shall issue an appropriate recommended order in accordance with chapter 120 prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay . . . .
In accordance with section 760.11(6) and federal case law, Petitioner is “presumptively entitled to back pay.” Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1526 (11th Cir.
1991)(superseded by statute on other grounds).
As noted in the Findings of Fact above, based on the parties’ stipulated facts, Petitioner’s compensation at the time of his suspension, projected over 12 months, would equal about
$112,000. $112,000 per annum equals $9,333.33 per month, or
$306.85 per diem. Therefore, based on the parties’ stipulated fact regarding projected earnings, beginning May 1, 2017, through the date of the hearing, October 2, 2018, which equals
one year, five months, and two days, Petitioner’s back pay that accrued is ($112,000 X 1 year) + ($9,333.33 X 5 months) + ($306.85 X 2 days) = $112,000 + $46,666.65 + $613.70 = a total
of $159,280.35 in back pay that accrued through the date of the hearing, plus $306.85 per diem thereafter through the date that the Commission enters a final order in this case. See Nord v. U.S. Steel Corp., 758 F.2d 1462, 1473 (11th Cir. 1985)("make
whole" purpose of Title VII requires back pay period to be extended through date of judgment).
In addition, as the evidence showed that Petitioner was wrongfully terminated because of his age, he should be entitled to reinstatement. See § 760.11(6), Fla. Stat.;
cf. O’Loughlin v. Pinchback, 579 So. 2d 788, 795 (Fla. 1st
DCA 1991)(“prevailing plaintiff in a wrongful discharge case is entitled to reinstatement absent unusual circumstances”) (citations omitted). Therefore, Mac Papers should make arrangements to employ Petitioner in a position equivalent to his previous position in terms of account assignments with the same potential for earnings that he held when wrongfully terminated.
Section 760.11(6) further provides:
In any action or proceeding under this subsection, the commission in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs. It is the intent of the Legislature
that this provision for attorney’s fees be interpreted in a manner consistent with federal case law involving a Title VII action.
As Petitioner was represented by an attorney, as part of his costs, he is entitled to an award of attorney’s fees and it is recommended that the Commission award Petitioner his attorney’s fees as part of his costs.
It is further recommended, but only to the extent necessary, that the Commission remand the case for issuance of a recommended order for factual findings to assist in determining the amount of costs, including attorney’s fees, owed to Petitioner. See, e.g., Caiminti v. The Furniture Enter., LLC, DOAH No. 09-3961 (Fla. DOAH Dec. 16, 2009; Fla. FCHR
