Findings Of Fact Gary Porter, an individual, is the sole stockholder, owner, and decision-maker for the two corporate entities, Gary Porter, Inc., and Gary, Inc., that are petitioners in these consolidated cases. In early 1990, Mr. Porter reached an oral agreement with Jerry Thompson, a Florida resident, to purchase two boats from Miss Angie, Inc., a Florida corporation owned and operated by Mr. Thompson. The two boats were the only boats owned by Mr. Thompson and his corporation. The purchase price for the two vessels, the "Miss Angie" and the "Christy Lynn", plus related fishing equipment and gear, was $285,000.00 (two hundred eighty-five thousand dollars). Separate sales agreements were drawn up for the sale of the two boats and a closing was scheduled in the office of an attorney in Destin, Florida, Dana C. Matthews, Esquire. Approximately one week before the closing, the $285,000.00 was paid to Mr. Thompson. On March 19, 1990, the closing took place. The two sales agreements and two bills of sale were executed by Mr. Thompson personally and in his capacity as President of Miss Angie, Inc. In the case of the Miss Angie sales agreement, Gary Porter, in the capacity of president of the corporation, signed the agreement on behalf of Gary, Inc. In the case of the Christy Lynn sales agreement, Gary Porter, as president, signed the agreement on behalf of Gary Porter, Inc. Title to the Miss Angie passed from Miss Angie, Inc., to Gary, Inc. Title to the Christy Lynn passed from Miss Angie, Inc. to Gary Porter, Inc. No reference to payment of taxes is made in the Sales Agreements or the Bills of Sale. At the closing, Mr. Thompson represented to both Mr. Porter and Mr. Matthews that he would see that all taxes arising from the transactions were paid. Contrary to his representations to Mr. Porter and Mr. Matthews, no sales or use taxes were paid by Mr. Thompson, Miss Angie, Inc., or anyone else. The Christy Lynn has been continually berthed in Destin, Florida, both before and after its sale from Mr. Thompson to Gary Porter, Inc. The Miss Angie was also berthed in Destin both before and after the sale by Mr. Thompson. But, the Miss Angie disappeared from its berth about one and one-half years after the purchase by Gary, Inc. Mr. Porter represented to the Department that, at the time of the sales, the value of the Miss Angie was $275,000.00 and of the Christy Lynn, $10,000.00. The Department revised its assessments to conform to Mr. Porter's representations. The revised assessments were received by the Petitioners and are mathematically correct. Upon the $10,000.00 value of the Christy Lynn, Mr. Porter paid to the Department the sum of $600.00 as sales tax, (6 percent of $10,000.00). But no other taxes, interest or penalties, have been paid on the sales of the Christy Lynn or the Miss Angie. As of June 14, 1994, the total amount due, according to the assessment amended that date, on the sale of the Miss Angie to Gary, Inc., was $24,452.77, the sum of $16,525.00 in total tax due, $4,131.25 as a late filing penalty and $3,796.52 in interest. As of June 14, 1994, the total amount due, according to the assessment amended that date, on the sale of the Christy Lynn to Gary Porter, Inc., was $925.00, the sum of $625 in total tax due, $256.25 in a late filing penalty and $143.75 in interest. Of the $925.00 due on the sale of the Christy Lynn, $600.00, as mentioned above, has been paid by Mr. Porter. Mr. Porter has steadfastly maintained that neither he nor his corporations are liable for sales tax, interest and penalties beyond that which he has already paid because Mr. Thompson had represented that the taxes would be paid.
Recommendation It is, accordingly, RECOMMENDED: That a final order be entered by the Department of Revenue upholding its assessments of tax, interest, and penalties against the Petitioners and that Gary Porter, Inc. be credited for a payment of $600.00 toward the total assessment due from Gary Porter, Inc. DONE AND ENTERED this 26th day of September, 1994, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 26th day of September, 1994. APPENDIX Petitioner's proposed recommended order does not contain any proposed findings of fact. Respondent's proposed findings of fact are adopted in substance, insofar as material. COPIES FURNISHED: Gary Porter 219 Benning Drive Destin, FL 32541 Mark T. Aliff Assistant Attorney General Department of Legal Affairs Tax Section, The Capitol Tallahassee, FL 32399-1050 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Oglesby Nursery, Inc., is a commercial nursery providing a variety of landscape agricultural products. The principal office for Petitioner is located at 3714 SW 52nd Avenues Hollywood, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highway, Delray Beach, Florida. Respondent, Garden of Eden, is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about August 22, 1986, Garden of Eden ordered and received delivery of $7673.40 worth of agricultural products from Petitioner. This purchase consisted of nine may pan coconuts and thirty green malayans trees. All of the trees were accepted and no issue was made as to their condition. On or about September 2, 1986, Garden of Eden ordered and received delivery of $1190.00 worth of agricultural products from Petitioner. This purchase consisted of seven coconut malayans dwarf trees. All of the trees were accepted and no issue was made as to their condition. The total amount of the agricultural products purchased by Garden of Eden from Petitioner was $8863.40. The total amount Garden of Eden paid on this account was $5000.00. The balance of indebtedness owed by Garden of Eden t o Petitioner for the purchases listed above is $3863.40. Petitioner claims it is due an additional sum of $247.77 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry and since Respondent took delivery of additional products knowing interest on past due accounts to be Petitioner's policy. No written agreement of acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
Recommendation Based on the foregoing findings of fact and conclusions of law I hereby recommend that the Petitioner's challenge to the Department's determination of sales taxes due herein pursuant to Chapter 212, Florida Statutes, be denied and that the revised assessment notices be upheld as issued. RECOMMENDED this 17th day of January, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Cecil Davis, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 Robert F. Nunez, Esquire Post Office Box 12726 St. Petersburg, Florida 33733 Mercer Farrington, Esquire Post Office Box 1548 Tallahassee, Florida 32302
Findings Of Fact At all times relevant hereto, Respondent, George May, was a licensed real estate broker, having been issued license number 0056693 by Petitioner, Department of Professional Regulation (Petitioner's Exhibit 27). Respondent, Marie L. Bundick, was a licensed real estate salesman having been issued license number 0185873 by Petitioner (Petitioner's Exhibit 29). During the time the events herein occurred May was the active broker with, and Bundick a salesman for, Commercial Equity Corporation, 2450 East Commercial Boulevard, Fort Lauderdale, Florida. Between December, 1976, and June, 1977, May formed the following corporations: A-1989 Corporation, Future 5 Corporation and 8-Villas Corporation (Petitioner's Exhibit 30). He served as president of these corporations until they were involuntarily dissolved by the Department of State for failure to pay fees due that Department. In early 1976, May ran an advertisement in a Fort Myers newspaper expressing a desire to purchase acreage in that area. In response to that advertisement, Henry Minster, a Bonita Springs real estate broker, contacted May and advised him he had various parcels of property for sale in Lee County, including undeveloped acreage. In May, 1976, Minister, May and an undisclosed third party visited an unimproved tract of land in what is known as the East Bonita Drainage District. The property in question is approximately 4 air miles northeast of Bonita Springs and is located within Sections 16 and 21, Township 475, Range 26E, Lee County, Florida. It lies around 8 air miles from the Gulf of Mexico; by automobile the distance is approximately 17 miles. Because the area was not surveyed, and there were few, if any, signs on the property in that area, a common starting point to view the property was a television tower in the northeast quarter of Section 30, where the graded road ended. In order to reach the boundary of Section 21, one had to travel approximately one mile east- northeasterly from the tower through Section 29 on trails and other undeveloped land. Section 16, which lay directly north of Section 21, was virtually inaccessible by automobile or on foot. Access from the tower to the lower corner of Section 21 could not be had in a conventional automobile without exceptional weather; however, Minster, May and the other person were in a 4- wheel drive vehicle and proceeded generally east-northeasterly approximately one mile on a trail until they reached a point very close to the southwest corner of Section 21. Then they got out of the vehicle and viewed the property in the immediate area. Although they were at or very close to the western boundary of Section 21, May was never shown any property further eastward, nor was he taken to Section 16 which was approximately one mile north of there. However, Minster did point out the general area where the property in Sections 16 and 21 were located, and the type of topographical characteristics to be found in both Sections. He further advised May that there was no reasonable access to the property, no roads had been built, that it was covered with cypress and that the land was under water during part of the year. Minster also advised May that if he planned to subdivide the property, certain registration requirements with the State must be met, and that zoning requirements with Lee County must be adhered to before development of the property could begin. The property that May was to subsequently purchase was approximately 17 feet above sea level, and was generally covered in varying degrees with cypress, pine trees and palmetto (Petitioner's Exhibit 25). U.S. Geological Maps indicate the predominate characteristic of Sections 16 and 21 to be a swamp or marshland (Petitioner's Exhibit 5). There is no dispute that much of the property was under water during the rainy season. On August 23, 1976, May negotiated the purchase of 100 acres in Section 16 from Minster (Petitioner's Exhibit 6). On January 23, 1977, an additional purchase of 85 acres in Section 16 was made by A-1989 Corporation, of which May was president (Petitioner's Exhibit 7). On July 21, 1977, A-1989 Corporation purchased another 40 acres in Section 16 (Petitioner's Exhibit 8). Future 5 Corporation, of which May was president, made a purchase of 100 acres in Section 21 on October 6, 1977 (Petitioner's Exhibit 9). A final purchase of an undisclosed number of acres in Section 21 was made by 8 Villas Corporation, of which May was president, on February 27, 1978 (petitioner's Exhibit 10). A sixth contract to purchase land in August, 1978, in Section 10 was entered into by the parties but the sale was never consummated (Petitioner's Exhibit 12). Collectively, the above purchases of land roughly encompassed the southern one-half of Section 16 and the southern one-third of Section 21, Township 47S, Range 26E. After May began making purchases of the acreage from Minster, he initiated a sales campaign through newspaper advertisements to sell the property in 2 1/2 acre tracts to the general public. These sales were conducted through his realty firm, Commercial Equity Corporation. Although it is alleged that advertisements appeared in "various news publications in and about Broward County", only the following advertisements in the Pompano Beach Shoppers' Guide were made a part of the record: "2 1/2 acres: Invest for tomorrow today, miles of spectacular beaches, south Florida's fastest growing area. Near golf, best fishing,..." "2 1/2 acres in sun and fun Florida, watch yourmoney grow, $65.91 per month $950 down near beaches..." "Live again, get away, beautiful home site, near beaches, good fishing, exc. schools. South Florida,..." "2 1/2 acres, no qualifying, booming South Florida near beautiful beaches, only 7 pct. interest, low payments, $65.91 month. Parks, boating, highway and tax deductible. Be smart, buy today." (Petitioner's Exhibit 20) Under each of the above advertisements were telephone numbers which enabled the caller to reach either May or his secretary. After the caller gave his name and number, an associate was instructed to return the call and arrange a meeting. The above advertisements, or ones similar thereto, were read by, inter alia, William C. Park and Rahlyn Ramsaran who made inquiries concerning the possible purchase of land. Park was referred to Marie L. Bundick while Ramsaran was referred to Edmond Martell, both of whom were salesman for Commercial Equity Corporation. In June, 1978, Park, Bundick and another Commercial salesman (Bill Soloman) visited the area in question to view the property. They first drove to the television tower in Section 30, and then continued eastward on a "farm access road" until they reached a drainage canal. After following the drainage canal for approximately one-half mile they reached what purportedly was property similar to that which was for sale. It was represented to Park that they were "very close" to where Park's property was actually located, but in no event were they more than a 5-acre tract away. Park noticed a flooded area approximately 1/4 mile away and inquired of Bundick if the property he was buying was within the flooded area; she answered it was not. Based upon these representations, Park later agreed to purchase two tracts of acreage (5 acres) in Section 21 for $14,000 from 8-Villas Corporation (Petitioner's Exhibit 24). Park, a professional diving instructor, purchased the property with the expectation of eventually constructing a diving school on the land. These hopes eventually evaporated upon discovering the true character of his land. In December, 1978, Park received a telephone call from Department Investigator Stevens who advised Parks that other investors had complained of misrepresentations by May and were attempting to get refunds from May on their purchases. He asked Park to show him the property he had been shown by Bundick in June. Park and Stevens visited the area on December 6, 1978, and after seeing the property a second time in conjunction with maps, Park concluded the property shown to him and that actually purchased were not the same. He also concluded that a diving school could not be built on such low-lying property. Park later received a refund on his purchase from May after a Department investigator visited May concerning the sale. After responding to May's advertisement, Ramsaran visited the property in question in April or May, 1977, with Edmond Martell, a salesman for Commercial. They drove to the television tower in Section 30, and then walked approximately one mile into the rough terrain. Martell advised Ramsaran that the property he was going to purchase began within a couple of hundred feet from where they were standing. Based on that representation Ramsaran purchased three tracts of property in Section 16 for $35,000 on May 11, 1977 (petitioner's Exhibit 26). Because Section 16 was at least one mile north of where Ramsaran and Martell had originally stood when viewing the property, the representation by Martell to Ramsaran was clearly false. Ramsaran revisited the Bonita Springs area on several occasions shortly after that and began making inquiries concerning where his property was actually located. He also studied a map of the area to pinpoint its exact location. After becoming concerned that he may have bought something different from what he had been shown, he called Martell who advised him not to worry and to meet with May to discuss the matter. On May 18, 1977, Ramsaran visited May's office to complain that he had been "taken". May told him it was not a swamp, that it was high and dry and was "good property". He confirmed this representation in a letter given to Ramsaran which stated as follows: "This land is nor is it under water. This land is approximately 17 feet above sea level. The land is wooded and is situated approximately one and three-quarters miles northeast from the T.V. tower in Bonita Springs." (Petitioner's Exhibit 23). Having received this representation from May, Ramsaran's concerns were temporarily allayed until Department Investigator Stevens visited him several months later. That visit prompted Ramsaran to contact a Bonita Springs real estate broker to see if a survey of property could be made. When advised that the property was under water, Ramsaran returned to May and requested a refund of his money. May refused to do so until he was reminded he had guaranteed the property by letter previously given Ramsaran on May 16; May then agreed to make a refund. In March, 1979, after receiving "pressure" from Department investigators concerning the land sales that were being made, May quitclaimed all of the properties purchased back to Minster (Petitioner's Exhibits 13-17) . By letter he concurrently advised each of the investors to begin making their monthly payments to Minster rather than to May. Although Minster was not forewarned that May was going to convey the property back to him, Minster has retained ownership of the property since that time, and has continued receiving the monthly payments from May's former customers. Martell was taken by May to the property on three separate occasions to orient him concerning its location and characteristics. Minster also accompanied them on at least one occasion. They went to the television tower in Section 30, and from there traveled east-northeastly for about 3/4 of a mile along a trail into an area covered by pines, cypress and palmetto. After stopping, May pointed out the general direction in which the property was located and described it to Martell as being "high and dry". Despite asking both May and Minster for more specific instructions on several subsequent occasions, Martell was never actually told the precise location of the property being sold. When Martell began working for May, he was given pictures of the property and told to discuss the general growth of the area with customers and point out its location on a map. When visits were made to the property with prospects May told Martell to drive the prospects to the television tower, and to walk eastward from that point into the woods as far as possible. However, Martell acknowledged he was never sure where the property he was selling was actually located. Both May and Minster told Martell the property was high and dry and 17' above sea level. There were no inaccurate representations made by May to Martell concerning the local zoning ordinance or access to utilities. Bundick met May through a friend who was employed by Commercial. She began working as a salesman for Commercial in March, 1978, and continued in that capacity until January, 1979. Although Bundick had no experience in selling raw acreage, and preferred to sell residential and commercial property, May encouraged her to sell land. He did not take Bundick to the property in question; instead he gave her a map on which he had traced the directions. After unsuccessfully attempting to find the property on one occasion, Bundick again asked May to show her the property. May told her his secretary would accompany her to the exact location the next time she took a client to inspect the land. Sometime later, Bundick and May's secretary, Deborah Kemph, visited the property at which time Kemph told her the property they were standing on was that purchased from Minster. In all future dealings with customers, Bundick used that location as a reference point for selling property, and assumed that what was being shown and what was being sold were the same. To this date, she still does not know the exact location of the property that she sold. She claims she simply relied upon the advice given by May, and believes that if incorrect advice was given customers, the fault lies with May. During her association with Commercial, Bundick acknowledged that besides the sale to Park, she also sold 'several other' parcels of property to various customers. May stated he was inexperienced in the land sales business when he purchased the property from Minster. He claimed he was "setup" by Minster, an experienced broker, who used Commercial Equity Corporation to merchandise his property; however, this claim was not substantiated. May also claimed he was deceived when he was initially shown the property, and that the exact location of the property being sold was never shown to him. He further stated he deeded the property back to Minster only after drugs had been placed in his food by his secretary, and he did not understand the nature of his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent George May be found guilty of misrepresentation for instructing his sales associates to inform prospective purchasers that the land being sold was high and dry as set out in paragraph 2 of Count III. It is further RECOMMENDED that Respondent Marie L. Bundick be found guilty of misrepresentation in her dealings with purchaser William Park as set forth in Subparagraphs 3(b) and (c) of Count VI. It is further RECOMMENDED that all other charges against Respondents be DISMISSED. It is further RECOMMENDED that Respondent May's real estate broker's license be suspended for 6 months, and that Respondent Bundick's real estate salesman license be suspended for 30 days. DONE and ENTERED this 1st day of September 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1981.
The Issue The issue is whether Respondent, Greenblades of Central Florida, Inc., and its surety, Western Surety Company, are liable for funds due to Petitioner from the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner operates a nursery supply company that produces trees, plants, and other landscaping supplies at a location in Bunnell, Florida. Respondent is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. At the time of the transactions in question, Respondent was a licensed dealer in agricultural products supported by a surety bond provided by Western Surety Company. This matter arose over a Producer Complaint filed by Petitioner on June 24, 2005, in which it alleged that Respondent owed $20,512.97, based upon five invoices for nursery goods delivered to various job sites where Respondent was providing landscaping services. The five invoices set forth in the original Producer Complaint are as follows: Date of Sale Invoice # Amount Dec. 28, 2004 64679 $2,884.72 Jan. 11, 2005 64828 3,878.75 Jan. 11, 2005 64829 1,926.00 Feb. 1, 2005 65229 2,086.50 Feb. 3, 2005 65127 9,737.00 Petitioner later amended its Complaint to withdraw its claims under Invoice Nos. 65229 and 65127, as untimely filed, resulting in an amended amount due of $8,689.47. Respondent filed a Response to the Producer Complaint on August 15, 2005, admitting the amounts due under Invoice Nos. 64679 and 64828, totaling $6,763.47, and denying the amount claimed in Invoice No. 64829, $1,926.00, as never having been filled, resulting in Respondent's using another vendor to fill the order. Respondent admitted the amounts due under Invoice Nos. 64679 and 64828; therefore, no further discussion is necessary for those items, except to note that Delivery Receipt No. 17751, relating to Invoice No. 64828 contains the note "Reject 1 Live Oak." Therefore, the amount of Invoice No. 64828 must be reduced by $214.00 ($200 for the tree and 7 percent Florida Sales Tax). With respect to Invoice No. 64829, however, Petitioner produced at hearing only an unsigned invoice without either a sales order or a receipt for delivery of goods, as was its custom concerning deliveries of nursery goods. Accordingly, Petitioner provided no proof that the order under Invoice No. 64829 was actually delivered to Respondent. Respondent and its surety, Western Surety Company, currently owe Petitioner $2,884.72 under Invoice No. 64679, and $3,664.75 under Invoice No. 64828, for a total amount owed of $6,549.47.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent, Greenblades of Central Florida, Inc., or its surety, Respondent, Western Surety Company, to pay Petitioner $6,549.47 for unpaid invoices. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2006. COPIES FURNISHED: Christopher E. Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Division of Marketing 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Joseph Robbins, Jr. Greenblades of Central Florida, Inc. 11025 Southeast Highway 42 Summerfield, Florida 34491 Tom Snyder Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077 Donald M. DuMond Skinner Nurseries, Inc. 2970 Hartley Road, Suite 302 Jacksonville, Florida 32257 Tom Robinson Skinner Nurseries, Inc. 13000 State Road 11 Bunnell, Florida 32110 Honorable Charles H. Bronson Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
The Issue The issue is whether Petitioner is entitled to seek relief pursuant to the Florida Civil Rights Act of 1992 under the jurisdiction of the Florida Commission on Human Rights.
Findings Of Fact Mr. DeLeo is a former Miami homicide detective, who received a disability retirement. He has held a real estate salesman license and real estate broker's license since about 1986. Both licenses were issued by the State of Florida. Official recognition was taken that he is over 40 years of age. POV is the sales arm of a venture known as The Villages of Lake Sumter (The Villages). The Villages is a large community located south of Ocala, Florida. It is a development that caters to persons 55 years of age and older and provides recreational opportunities, including golf. Sales of new homes in The Villages are handled exclusively by POV. The typical real estate broker-salesperson relationship is clearly one of principal and independent contractor, and cases in Florida and elsewhere describe it thus. However, The Villages mass markets its concept and its properties, nationally, and as a result, POV's relationship with its salespersons is not typical. In the course of marketing its real estate, The Villages advertises nationally. This marketing effort attracts large numbers of potential buyers to visit. A guest coordinator, who is an employee of The Villages, books visits for potential buyers. When guests arrive they are greeted by the guest coordinator who connects them with a sales representative, like Mr. DeLeo. Mr. DeLeo worked in the real estate business for about 21 years prior to becoming involved with POV. He entered into a contract with POV on September 30, 2004. The contract is entitled, "Independent Contractor Agreement" (Agreement). The Agreement was drafted by POV, and Mr. DeLeo had no opportunity to negotiate its terms. As will be discussed below, it is the actual relationship between the parties that controls the outcome of this case, not the title of the Agreement. The Agreement provided that either party could terminate the contract at will. Mr. DeLeo learned that he had been terminated on April 7, 2008. Mr. DeLeo attended an extensive training program provided by POV. He completed the training in February 2001 and thereafter began selling property pursuant to the Agreement. According to the Agreement, Mr. DeLeo could only sell houses marketed in The Villages. He was specifically prohibited from selling property not located in The Villages. He sold new properties owned by The Villages and property marketed by individuals in The Villages, in accordance with the Agreement. In a typical broker and salesperson relationship, the salesperson is not limited to selling in a geographically defined area. The Agreement had an attachment to it that was entitled Commission Structure. This set forth the details of how Mr. DeLeo was to receive compensation. Mr. DeLeo was satisfied with the commission arrangement. He received no salary. If a dispute arose over splitting a commission, the dispute was resolved by POV. Typically, disputes between real estate sales persons are resolved by committees of realtors acting under the auspices of a multiple listing service. POV provided Mr. DeLeo, as well as all salespersons, with an office, telephones, computer support, and all other items needed to complete a real estate sale except for an automobile which Mr. DeLeo provided. The computer provided a shared database which maintained information about potential buyers, and the information in the database was reviewed by management. Mr. DeLeo was required to provide liability insurance, business cards, certain signs, lock boxes, and on occasion, to pay the salaries of personal assistants, who are provided by POV. Paragraph 4 of the Agreement recites that "The parties agree that the Sales Representative is an independent contractor and not an agent, joint venturer, or employee of POV or The Villages, and nothing in this Agreement shall be construed to be inconsistent with this relationship or status. Hours devoted by the Sales Representative is [sic] entirely within the Sales Representative's control, and POV will rely upon the Sales Representative to work those hours that the Sales Representative deems necessary to perform the job in a competent and professional manner." Mr. DeLeo testified that he was required to work a set schedule and that he was required to obtain permission from a "team leader" prior to taking vacation time. Vacation time was limited. The team leader evaluated the performance of salespersons and provided feedback on ways to improve performance. The team leader was a salaried employee of POV. This sort of supervision is not typical in the real estate business. POV asserted that they did not exercise control over their salespersons with regard to working hours. However, it is unlikely that The Villages would import a large group of potential buyers and merely hope that sufficient staff would be available to make sales. Clearly, POV required salespersons to be available when needed by POV. Accordingly, the weight of the evidence proves that Mr. DeLeo's work schedule was controlled by POV. Therefore, the testimony of Mr. DeLeo is deemed accurate. Supervision of the team leader included accompanying the salespersons to meetings with clients and listening in on telephone contacts to critique the salesperson's performance. The close supervision is different from the usual relationships found in the real estate business. It is more controlling than that found in independent contractor relationships. In late 2007, POV introduced a new sales program called ValueMatch. Mr. DeLeo was required to participate in the ValueMatch sales training and utilize the ValueMatch sales approach. Mr. DeLeo was required to document his compliance with the ValueMatch sales program via a worksheet at every client contact. This requirement demonstrates that POV maintained close control over its sales and marketing representatives. POV provided an information packet to Mr. DeLeo and other sales and marketing representatives in 2006 and again in 2008. The 2006 version listed numerous "Essential duties and responsibilities." It includes a duty to be "Present and prepared for work when noted by various rotation options and/or customer needs" and "Attend training opportunities, team huddles and meetings." The 2008 version includes, "Present and prepared for work when noted by various appointments to include Open Homes, New Home showcase, 1st and 2nd Step CMA's, Resident Touches, Rotation, Pre Owned Home Floor Time, and any other customer opportunities. All appointments are expected to be logged in the customer AS400 account allowing various members of the support staff to assist in the process." The information packets present these requirements as imperatives and thus exhibit an exercise of close control over sales and marketing representatives. The 2006 version, under "Some Recommendations," sets out a detailed dress code. The 2008 version merely requires maintaining a professional appearance. It is clear that these requirements are imperative in nature thus reveal the exercise of close control over sales and marketing representatives. Both information packets address rotation (or work) schedules that are consistent with maintaining close control over the work schedules of sales and marketing representatives. Upon consideration of all of the evidence, and despite the title of the contract to the contrary, it is clear that POV maintained tight controls over the activities of their sales and marketing representatives, and, of course, over Mr. DeLeo.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations assert jurisdiction over Petitioner Joseph DeLeo and Respondent Properties of The Villages, Inc., and commence proceedings pursuant to Section 760.11, Florida Statutes. DONE AND ENTERED this 16th day of July, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2009. COPIES FURNISHED: Carla D. Franklin, Esquire Carla D. Franklin, P.A. 204 West University Avenue, Suite 3 Gainesville, Florida 32601 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for consideration in this matter is whether Petitioner, Classie Sales, Inc. (Classie), is entitled to be compensated for produce sold and delivered to Respondent, Tolar Farms (Tolar), and if so, in what amount.
Findings Of Fact On June 30, 1990, Roger Harloff, on behalf of Roger Harloff Farms, and John A. Tipton, Secretary of Classie Sales, Incorporated, a sales agent founded by Harloff, entered into a written agreement whereby Classie would serve as sales agent for all sales of produce grown by or on Roger Harloff Farms. Between October 17, 1995 and December 9, 1995, Classie, on behalf of Roger Harloff Farms, sold watermelons with a total net sales price of $170,839.27 and tomatoes with a total net value of $1,720.00 to Tolar Farms. These sales were not direct sales to Tolar but transactions wherein Tolar was to sell the produce to whomever would buy it at an agreed price and would withhold its 3/4 per pound commission from the sales price, remitting the balance to Classie. Trucks arranged for by Tolar picked the produce up at the growing field and at the time of pickup, Classie issued to Tolar a packet jacket for each load sold. As the loads were sold Tolar would issue a ticket for that load which bore the shipping date, the lot number, the farmer, the transporting trailer's tag, the truck broker, the truck driver, and the weight of the product. Sometime later, when the produce was sold, Tolar issued an invoice bearing Classie Sales' logo, reflecting Tolar as the buyer and showing the lot number which corresponded to the load ticket, the shipping date, a description of the produce, the quantity, the unit price for that load, and the extended price from which was deducted Tolar's commission and an unspecified assessment. These documents were then forwarded to Classie. The terms of the sale between Tolar and Classie, on behalf of Harloff, were loose. The invoice documents reflected a net due 21 days after invoice date. The first delivery in issue here was made on October 17, 1995, and 21 days after that is November 7, 1995. The amount reflected by the deliveries made after that date is $27,509.72. Respondent, Preferred, claims that since Classie continued to make deliveries to Tolar's drivers after it was not paid within 21 days after the first shipment, it failed to mitigate its damages and should not be paid for any deliveries made after November 7, 1995. Classie was not paid for any of the instant invoices by Tolar, but Classie did not become concerned about Tolar's failure to make timely payment until January 1996. Tolar's payment and pricing practices were no different during this time than in years past. Typically, Tolar would start out quickly notifying Classie of the sales. As the number of shipments grew, however, the time for notification grew longer. It must be noted that less than two months transpired from the date of the first shipment in issue to the last.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture enter a Final Order in this matter directing Tony and Robert Tolar, d/b/a Tolar Farms, to pay Classie Sales, Inc., the sum of $172,559.27. In the event this sum is not paid by Tolar, the Department should apply the bond posted by Preferred National Insurance Company in the amount of $75,000.00. DONE and ENTERED this 15th day of July, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 15th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-1776A To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. - 13. Accepted and incorporated herein. Accepted and incorporated herein as the testimony of the witness. Not a Finding of Fact but a comment on the issues. Accepted and incorporated herein. Respondent Preferred's Proposed Findings of Fact. Preferred accepted all of Classie's Proposed Findings of Fact but suggested an amendment to Number 14. The suggested amendment was made a part of the Findings of Fact made by the Hearing Officer. Respondent Tolar's Proposed Findings of Fact: Tolar consented and agreed to all Petitioner's Proposed Findings of Fact except for Number 9. The substance of Tolar's objection to Classie's Number 9, relating to a provision for a commission, has been made a part of the Findings of Fact of the Hearing Officer. COPIES FURNISHED: Hywel Leonard, Esquire Carlton Fields Post Office Box 3239 Tampa, Florida 33601-3239 Scott R. Teach, Esquire Meuers and Associates, P.A. 2590 Golden Gate Parkway, Suite 109 Naples, Florida 34106 David A. Higley, Esquire Higley and Barfield, P.A. The Maitland Forum 2600 Lake Lucien Drive, Suite 237 Maitland, Florida 32751-7234 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issue to be determined is whether Respondent committed an unlawful employment practice by discriminating against Petitioner because of her sex and/or age, and/or by retaliating against her for engaging in a protected activity.
Findings Of Fact Petitioner, a female, is a former employee of Respondent. At the time her employment with Respondent was terminated on December 31, 2015, she was 60 years old. Petitioner was a salesperson for Respondent, a company that sells specialty medical devices to medical providers and facilities. Petitioner’s background gave her technical knowledge regarding the cardiac-related product line, as she had obtained a certification as a perfusionist in 1978. A perfusionist operates the heart-lung bypass machine during open-heart surgery. By 1985, Petitioner moved into sales and has focused on cardiac products because of her background. Petitioner began her employment with Arrow, Teleflex’s predecessor, as a salesperson for the cardiac unit in August 2003. At some point, Arrow was acquired by Teleflex; the record is unclear as to exactly when this occurred, but it may have been sometime in late 2007. Petitioner testified that the product line has changed over the years, as there used to be artificial heart-related products, which were her “great loves” (R. Exh. 28 at 44), and why she started working there, but the company got rid of those programs. Under Teleflex, the main big-ticket piece of capital equipment sold by salespersons in the cardiac unit is the intra-aortic balloon pump. In addition, salespersons sell disposable products, such as catheters and cannulas used with the pump, in cardiac surgeries, and catheterization lab procedures. The organization and composition of the cardiac unit’s sales territories and the salespersons assigned to them were subject to change and did change throughout Petitioner’s time with Arrow and then Teleflex. Likewise, the organization and composition of sales divisions/regions and the managers assigned to be in charge of them were subject to change and did change throughout Petitioner’s employment. Sales divisions and sales territories within divisions were created, combined, split up, and reconfigured, and both salespersons and managers were added, eliminated, and reassigned. Petitioner attempted to recount the history of changes in sales territories that affected her during her years at Arrow and then Teleflex.1/ When Petitioner started in 2003, her sales territory was most of the state of Florida up to Tallahassee, and all of the cardiac unit’s sales representatives were under the supervision of a single manager. At some point, separate sales divisions were created, and a new manager was assigned to supervise Petitioner and others in her division. At another point, when a sales associate was let go, Petitioner’s sales territory was expanded to add the Florida panhandle and part of Alabama (to Mobile). At another point, separate sales territories were combined, and the sales associate who covered sales in Georgia and Alabama was let go. At the request of her new manager, Petitioner helped train a new sales associate to cover Georgia and Alabama. Petitioner was successful in sales for Arrow, and received several honors and awards for her achievements. At the end of her first year of employment in 2004, she was honored as “rookie of the year.” She received the chairman’s club award twice, in 2005 and 2007, for ranking in the top 10 percent of sales company-wide. Finally, she received the circle of excellence award in 2007, for having achieved her sales quota numbers three years in a row. Petitioner was promoted to executive sales representative, although she cannot remember exactly when that was. Her sales role was not changed, but she got a pay increase and some increased duties in the area of training new sales associates. When Teleflex acquired Arrow, the sales associate trained by Petitioner for the Georgia-Alabama sales territory was let go. Both Georgia and Alabama were added to Petitioner’s territory. From her home base in Florida (she lived in Spring Hill), she covered the three-state sales territory of Florida, Georgia, and Alabama. Another change affecting Petitioner occurred when the state of Georgia was reassigned to a salesman in North Carolina and Petitioner’s territory was reduced to Alabama and Florida. Later, that salesman was promoted to manager for the eastern division, and Georgia was added back to Petitioner’s sales territory. It is unknown when these changes occurred, but from that point until early 2014, Petitioner’s sales territory remained the three-state area of Florida, Georgia, and Alabama. Somewhere along the line, Petitioner experienced another changeover in management, with Christine Mazurk assuming the position of eastern regional manager. Ms. Mazurk supervised Petitioner from approximately 2010 to 2013. Petitioner was evaluated annually using a standardized format called the performance management process (PMP). The most heavily weighted area in the PMP is the annual formulation of business objectives and target goals, expressed in terms of sales revenue dollars by product line. In addition to business objectives, other categories evaluated include competencies and development. The objectives and target goals are established annually in the first quarter of the calendar year. The process begins with the employee who creates and submits the objectives and goals to his or her manager, who must accept them. At the end of the year, the employee performs a self-evaluation, rating each category as 1 (does not meet), 2 (partially meets), 3 (fully meets), or 4 (exceeds), while the manager similarly rates the employee in each category. The manager’s ratings are used to calculate an overall “final rating.” The final rating scale is as follows: between 1 and 1.4 means “does not meet”; between 1.5 and 2.4 means “partially meets”; between 2.5 and 3.4 means “fully meets”; and between 3.5 and 4 means “exceeds.” In 2011, Petitioner rated herself at 2 for business objectives, which she believed were partially met. She rated her overall performance at 3.0. In contrast, from her manager’s perspective, Petitioner did not meet her business (sales revenue) objectives, achieving only 73 percent of her revenue target for 2011. The manager gave Petitioner the lowest rating of 1 in business objectives, and an overall final rating of 2.4, partially meeting performance expectations. Petitioner added the comment in her PMP that the economy really hurt sales in 2011. Petitioner’s performance was worse in 2012, according to the PMP that she and her manager, Ms. Mazurk, completed. Once again, Petitioner’s self-evaluation was higher than her manager’s. Petitioner’s overall rating for herself was 2.9, but her manager’s overall rating and the final rating on her PMP was 2.0, a little lower than in the prior year in the range of only partially meeting her performance expectations. In this PMP, Petitioner offered the following comment: “Really feel the baseline numbers were off.” At some point in 2012, a business profile of Petitioner was prepared. Although the source of this profile was not entirely clear, Petitioner said that she thought it had been prepared by her manager (who, at the time, was Ms. Mazurk) in connection with a promotion that Petitioner was seeking. The profile reported that Petitioner had been employed at the company for nine years, and gave her sales performance in relation to her target goals for 2008 through 2011. The profile also identified Petitioner’s “developmental needs” in the following three areas: Communication skills (email and verbal with support team) Emotions run high Sales Training Petitioner did not receive the promotion, and continued as an executive sales representative in the sales territory of Florida, Alabama, and Georgia, under Ms. Mazurk’s management. In 2013, Petitioner’s PMP was not completed, apparently because Petitioner was out for two weeks with an injury, and then later in the year was out for two months for a surgical procedure and recovery. In the nine and one-half months that she worked (almost 80 percent of the year), she reportedly achieved sales revenues of 54 percent of her target revenue goal for that year. A reorganization at the end of 2013 resulted in a new manager for Petitioner, James Phillips. Mr. Phillips was the manager for the western North America sales region, but served temporarily as Petitioner’s manager, from January to May 2014, while the company was looking to bring in someone new to manage the eastern region. Mr. Phillips met with Petitioner in the beginning of 2014 to inform her of another realignment of sales territories, which would go into effect in March 2014. Insofar as the changes affected Petitioner, a new sales territory was being created, called the “south Florida” territory, and the company’s plan was to hire a new salesperson for the new territory. More accurately, the newly created sales territory covered more than just south Florida; it included all of the east coast from Jacksonville south, the west coast up to Tampa-Saint Petersburg, and part of central Florida, including Orlando. At the same time, the state of South Carolina would be added to Petitioner’s reconfigured sales territory. The impetus for creating the new south Florida territory was evidence showing that this highly populated market had been underpenetrated. In other words, Petitioner, who had been the area’s sole sales representative for more than 10 years, was not accomplishing the level of sales expected for this market. Accordingly, the business judgment was that splitting up the state and assigning the underpenetrated south Florida market to a new salesperson would promote increased market penetration by making that market the sole focus of the new salesperson.2/ Petitioner disagreed with splitting the state into two territories, but said that she could understand why the company wanted to create a new south Florida sales territory; as she stated, that market is very different from north Florida. However, solely from the perspective of the lost sales opportunities for herself, she voiced her disagreement with the line-drawing for the new territory. In a letter she sent to her new manager, as well as to three members of upper management, she requested that management reconsider how to split the territory within the state of Florida, and asked that she be allowed to retain the Orlando market. Petitioner’s letter also reported that she was “very excited” about the addition of South Carolina to her sales territory. Petitioner’s letter did not result in a reconsideration of the March 2014 territory realignment. Therefore, beginning in March 2014, Petitioner’s sales territory included the Florida west coast, central Florida north of Tampa/St. Petersburg from Ocala north to the state line, and the Florida panhandle, plus all of the states of Alabama, Georgia, and South Carolina. When the decision was made to create a new south Florida territory, a specific salesperson had not been identified for that new territory. Petitioner claims that she asked to be assigned to the new territory, but was refused. No evidence was presented to substantiate her claim; instead, the letter she wrote to her superiors about the realignment only asked that the territories be redrawn so that she could retain the Orlando market, while expressing her enthusiasm about acquiring the state of South Carolina. In May 2014, John Bowman was brought on board for the position of eastern regional manager, covering eastern United States and Canada. He was hired by the president of the company because the eastern region was underperforming. Mr. Bowman was charged with improving the business performance of the sales team so that sales would reach and sustain expected goals, which Mr. Bowman said is his forte. Mr. Bowman is very direct with the sales representatives under his charge. He is results-oriented and does not mince words when it comes to identifying deficient performance and making corrective “suggestions” that may sound more like demands. Thereafter, if he observes a continuation of the performance deficiency he has tried to correct, he is quick to point that out. That is his management style, and why he believes he has been effective in achieving results: “In sales you’re constantly measured by your results. You’re paid on your results. You’re measured on your results. You’re ranked on your results. I am as well and so is my president. And I make that very clear with sale individuals and always have.” (Tr. 138). As part of the management transition, Mr. Phillips provided Mr. Bowman with his assessment of Petitioner as a salesperson. Mr. Phillips had not served as Petitioner’s manager long enough to conduct a formal year-end PMP evaluation, and so the assessment was characterized as a “personal assessment” and was not placed in Petitioner’s personnel file.3/ While both positive and negative qualities were described in the assessment, there was more bad than good; however, Mr. Bowman set the assessment aside so that he could form his own opinions. He considered the points raised by Mr. Phillips as simply identifying some issues that he should look out for. Mr. Bowman was not based in the same city or even the same state as Petitioner. He did not meet with her until after he had been employed as her manager for just over one month. As Petitioner acknowledged, he had much ground to cover, as his region included all of North America east of the Mississippi from Florida up into Canada, and as she put it, “he tried to be fair with everyone.” (Tr. 100). Before Mr. Bowman ever met Petitioner, he fielded complaints from two different customers who called the Teleflex toll-free number to track down Petitioner’s manager. Both complaints were perceived by Mr. Bowman to be communication problems, i.e., the issues would not have arisen if Petitioner had communicated better with the customers. One of the customers complained to Mr. Bowman that Petitioner was “useless in giving us the information we needed.” (R. Exh. 10). Petitioner’s attempted explanation of the two incidents tended to lend credence to Mr. Bowman’s assessment and the customer’s comment. Ultimately, she sought to minimize their significance by characterizing them as only two isolated incidents during her long tenure. However, from Mr. Bowman’s perspective, these were two customer complaints that he had to field in his first month as Petitioner’s manager, unlike what he faced with any other sales representative there. When Mr. Bowman met with Petitioner on July 1, 2014, he talked with her generally about her background and abilities, which he complimented, and he addressed the concerns he had from the two customer complaints. He also identified two other areas where he thought her performance required improvement. In an email sent the following week, he summarized their discussion (including the compliments) and the three areas where he wanted to see her improve. These were: her interaction and communication with customers, evidenced by the two recent incidents requiring him to intercede; her communications with internal Teleflex personnel, where her failure to provide clear, complete, and precise information resulted in “elongated email strings” and confusion; and her too-frequent requests to him for low pricing approval. Petitioner was taken aback by these criticisms, which she took as demeaning and condescending, because she viewed herself as a proven performer who was highly respected. She did not react well to the email summary of these points, which she viewed as a paper trail intended to bring her down.4/ Nonetheless, Mr. Bowman’s points were shown to be valid, and, indeed, consistent with similar comments made by prior managers, including the manager who noted in Petitioner’s profile in 2012 that Petitioner needed to work on her verbal and e-mail communication skills. Mr. Bowman was clear in his meeting with Petitioner, in the e-mail summary of that meeting, in subsequent discussions, and in his testimony at hearing that he fully expected Petitioner to learn from his constructive criticisms and improve her performance. Moreover, he did not view her performance deficiencies as extreme enough to warrant formal action, such as placing her on a performance improvement plan. Instead, he quickly and consistently pointed out to Petitioner each time he saw a continuation of the behavior he had criticized, and he repeated the criticism while noting that he was repeating prior criticism, as was his way. Mr. Bowman testified credibly that he treated all of the sales representatives under his charge the same way, and was consistent in the way he communicated both positive capabilities and performance issues requiring improvement. Petitioner offered no evidence to prove that Mr. Bowman treated her any differently from the way he treated other sales representatives. One of Mr. Bowman’s first tasks as the new eastern region manager was to participate in interviews for a new salesperson to be assigned to the new south Florida territory. After interviews by Mr. Bowman, the president of the company, the director of finance, the director of marketing, and another manager, and after a third-party psychological exam, Eric Patton was hired in August 2014 as a sales representative for the new south Florida territory. At the time he was hired, he was approximately 34 years old. Although the territory changes went into effect in March 2014, Petitioner continued to cover sales in the new south Florida territory, for which she was compensated, until September 2014 when Mr. Patton assumed coverage of the territory. Petitioner was asked to provide Mr. Patton with information on her contacts in the new territory, and she did so. Petitioner also spent several hours with Mr. Patton at her home to demonstrate how she made her sales pitches, and she also gave him a script. Thereafter, she took a couple of day trips with him to introduce him to some customer contact persons in his new territory. These were meet-and-greet sessions only, not extended visits involving actual sales presentations. Petitioner’s view is that it was not fair that she lost the pipeline of sales opportunities in the south Florida territory to Mr. Patton. When it came to losing this, or any, sales territory, Petitioner complained that she was losing out on the “pipeline” of sales opportunities that she had cultivated but not yet closed. However, when Petitioner gained sales territory, she complained about the disadvantage of starting out from scratch in a new area. Neither viewpoint appears to comport with the reality that every time sales territories are changed, the new salesperson has some head start by virtue of the work of the predecessor salesperson. But there was no basis shown for Petitioner’s sense of “entitlement” to the benefits of a sales territory after the territory is assigned to someone else. That is particularly true here, where Petitioner did not refute the legitimate business purpose of an underpenetrated market that led to the territory reconfiguration. The company compensation system for sales representatives was based on revenue recognized from sales, not on unrealized “pipelines” for future business. Petitioner claimed that in one instance, she believes that Mr. Patton was treated more favorably than her while they were both working in sales in their respective territories. Petitioner and several other salespersons (both male and female) had closed some pump sales with contingency clauses written in the contracts whereby the customer would be allowed to return the pump and upgrade to a new model at no additional cost if a new model became available within 18 months after the sale. The company determined that under federal law, the revenue from those sales could not be recognized, but rather, had to be held in escrow until the contingency period had passed. Since sales commissions were paid on the basis of sales revenue recognized by the company, sales commissions were deferred as well. Mr. Bowman explained credibly that these deferred compensation sales had been allowed under a policy in place before he was employed, but that Petitioner’s deferred sale was the last of several allowed before the policy was discontinued. Petitioner testified that Mr. Patton told her that one year after her deferred compensation sale, he made a sale in which he was allowed to offer verbal, but not written, assurance that an upgrade to a new model would be allowed, and his commission was paid on the sale. However, Petitioner offered no non-hearsay evidence to substantiate her description of what she was told, and her description was refuted by Mr. Bowman’s credible testimony. In any event, Petitioner’s unsupported description did not establish two sales that would be considered the same so as to require the same treatment regarding payment of commissions. No finding can be made that Mr. Patton was treated more favorably than Petitioner in this regard, as claimed. Petitioner and Mr. Bowman completed Petitioner’s PMP evaluation for calendar year 2014. The evaluation was similar to those for Petitioner in 2011 and 2012. Petitioner rated her performance either the same or more favorably than her manager did, with the result that her overall final rating was 2.2, compared with her self-evaluation of 2.4. In mid-2015, the company lost a large contract with HPG, which is a large group purchasing organization (GPO)-- probably the largest in the country, according to Petitioner. Instead of contracting again with Teleflex, HPG entered into a sole source contract with Teleflex’s competitor. As Petitioner acknowledged, the recent advent of GPOs had dramatically changed the sales business, because the GPOs control access to potential purchasers. Purchasers using the GPOs are no longer free game for salespersons to explore new sales opportunities. For Teleflex, this meant that as of mid-2015, its salespersons could not solicit new sales from potential purchasers using HPG, because HPG would direct those purchasers to Teleflex’s competitor pursuant to the new sole source contract. As Petitioner acknowledged, the loss of the HPG contract was a substantial loss for Respondent, with the significant impact coming in the loss of growth opportunity to develop new business. In June 2015, the president of the company raised the possibility of a reorganization to consolidate the north Florida and south Florida territories, in light of the loss of the HPG contract. Mr. Bowman began discussions with senior management about possible changes to the sales territories. In late September 2015, Mr. Bowman provided senior management with a Power Point presentation that set forth a proposed reorganization of the southeast. His proposal was to reconfigure the two existing territories, to create a single Florida territory and a separate “Tidewater” territory covering Alabama, Georgia, and South Carolina. As he proposed the reorganization, the two sales representatives--Petitioner and Eric Patton--would cover the two reorganized territories. Meanwhile, Mr. Bowman continued to critique Petitioner’s performance in some fairly strident emails and conversations. In an incident on September 30, 2015, Petitioner submitted a quote request for a new pump for one Baycare hospital, while another Baycare hospital was also considering a new pump. According to Petitioner, the issue was not the price to quote for the new pumps, as she stated that the price had been set and was “already on a contract.” (R. Exh. 28 at 154). Instead, Petitioner said that the issue was whether the hospitals would get a credit for the cost of unusual repairs being made to their existing pumps. In contrast, according to Mr. Bowman, the company had already agreed that the repair costs would be applied to the purchase price, but the issue was what price should be quoted for the new pump, which he said had not been set by any contract. Mr. Bowman found the price requested by Petitioner to be too low, and instead of approving her price request, he sent her an email at 5:35 p.m. on September 30, 2015, questioning her price approval request, while noting the same price would have to be given to both Baycare hospitals. He ended the email as follows: “Call me tomorrow to discuss.” (R. Exh. 14 at 1). Instead of acknowledging Mr. Bowman’s email and waiting to talk to him first, Petitioner sent an email to the customer, with a copy to Mr. Bowman, the next morning. The email apologized for “not getting you the outright purchase quote yesterday,” explaining that the delay was because “[t]he outright quote required management approval[.]” (R. Exh. 14 at 2). After reading his copy of the email, Mr. Bowman called Petitioner and reacted harshly, telling Petitioner that she threw him under the bus by sending the email to the customer without discussing it with him first, and that she had committed a fire- able offense. While harsh, Mr. Bowman’s reaction was not off- base. Petitioner’s email tends to undermine her testimony that the issue was not the purchase price which she claimed was fixed by contract. And while Petitioner testified that she tried to call Mr. Bowman that afternoon or evening before she sent the email the next morning, Petitioner did not mention the email from Mr. Bowman. Surely, when waiting to hear from her manager, she would have read his incoming email before sending the email to the customer. Petitioner failed to explain why she did not follow her manager’s instruction to discuss the matter with him.5/ Following their telephone conversation, Petitioner called the human resources department and spoke with the manager, Jennifer Robichaud, to complain about Mr. Bowman. The essence of her complaint was that at 60 years old and close to retirement, she felt that Mr. Bowman was gunning for her and trying to push her out.6/ She complained about the March 2014 territory realignment, which she though was unfair because a large part of her territory was given to the new sales representative, “a young guy.” She told Ms. Robichaud that she has always been a top performer, and although she recently had not been closing sales on pumps, that was because she was starting from scratch in a new territory. She said that until Mr. Bowman came on board, she never had any issues with her past managers. Although she acknowledged that she and Mr. Bowman have very different styles, she felt that Mr. Bowman did not accept her for who she is. Ms. Robichaud assured Petitioner she would investigate. They spoke on a Thursday; Ms. Robichaud was able to discuss the matter with Mr. Bowman the following Tuesday, October 6, 2015. She relayed Petitioner’s complaints that she felt that Mr. Bowman was trying to push her out, and her feeling that it was unfair to give her pipeline to Mr. Patton. Mr. Bowman denied that he was trying to push Petitioner out of the company, and said, instead, he wants her to succeed. With regard to her perception about pipeline fairness, Mr. Bowman responded that all sales representatives are expected to have a pipeline of business opportunities, but that it is closing the business that matters. In the days thereafter, he sent Ms. Robichaud information pertinent to the investigation, including email communications with Petitioner, the assessment from Petitioner’s prior manager, and information about the customer complaints. Ms. Robichaud also investigated Petitioner’s annual PMP ratings and her performance through September 2015. She also sought and later received the data supporting the decision to realign the Florida territory in 2014. As before, Mr. Bowman continued his practice of addressing Petitioner’s performance on issues that had previously surfaced, which he had previously addressed with Petitioner. Thus, on October 9, 2015, Mr. Bowman criticized Petitioner for her email communications with customer service in which she asked for free replacements of medical supplies to be sent to her home for a customer, without giving sufficient information. The response from the customer service representative stated he was “a bit confused” by the request, and asked for more information: “Donna, your input is appreciated here.” The representative had to ask questions to get the information necessary to handle the request appropriately, such as whether the supplies were being provided for free to respond to a complaint. Mr. Bowman’s criticism was that Petitioner’s email request to customer service was “an example of a lack of professionalism and clarity in your communications. I have addressed this issue with you multiple times over the past year and unfortunately, you have not demonstrated improvement.” (R. Exh. 15). On Monday, October 12, 2015, Petitioner forwarded Mr. Bowman’s email criticism to Ms. Robichaud and asked her to call. They spoke Tuesday morning. Ms. Robichaud told Petitioner that she had been looking into Petitioner’s concerns and had spoken with Mr. Bowman. Ms. Robichaud told Petitioner that Mr. Bowman was not trying to push Petitioner out of the company, but was looking for performance results, and Ms. Robichaud did not find any reason to believe Petitioner was being treated unfairly. Ms. Robichaud said that Petitioner and Mr. Bowman needed to talk, because in Ms. Robichaud’s opinion, the problem appeared to be a clash of styles, which is not uncommon with a change in managers, and that they needed to learn to adapt. Ms. Robichaud talked to Mr. Bowman afterwards. She encouraged him to reach out to Petitioner, hear her concerns, and try to understand her perspective. She reminded him that he has acknowledged that he is very direct, and “perhaps a few small changes in how he communicates with her can have a positive impact.” (R. Exh. 18 at 2). Mr. Bowman contacted Petitioner, and they agreed to meet in person. The meeting took place on October 16, 2015, in Tampa. Before the meeting, Petitioner requested a copy of her personnel file from Ms. Robichaud. Petitioner testified that at the meeting, Mr. Bowman was very civil and respectful to her. He said that he thrives on diversity and enjoys the challenge of working with different kinds of people. He assured her that any decisions that are made are always going to be about performance. Petitioner reacted curiously to this: she testified that she realized that nothing was going to change, while admitting that Mr. Bowman was acting completely differently than he had before. Petitioner said that he was “extremely scripted,” and probably had been coached on what to say by the human resources manager. Yet she also complained, inconsistently, that the human resources department did nothing to help her or to facilitate a meeting with Mr. Bowman. According to Mr. Bowman, Petitioner said that she did not think she would be able to meet the objectives set for her. According to Petitioner, she said that he should just stop (being civil to her), that she knew what he was doing, and knew that he wanted her to go away. Regardless of which lead-in is accurate, Petitioner went on to offer that she would resign her employment at the end of the year if the company paid her the deferred commissions, and her salary and benefits for six months. Mr. Bowman was genuinely surprised by Petitioner’s offer. Shortly after Mr. Bowman’s meeting with Petitioner, Mr. Bowman was informed by his superiors that his proposal to retain but reconfigure two sales territories with two sales representatives in the southeast had been reviewed, but was rejected because it would not be a viable solution to address the loss of the HPG contract. Instead, the decision was made to consolidate the southeastern states--Florida, Georgia, Alabama, and South Carolina--into a single sales territory, covered by one salesperson. Mr. Bowman was told to extract metrics for the time period that Petitioner and Mr. Patton were both working sales in their respective territories, including their recognized sales revenues compared to their quotas, pump sales, and 2014 PMP rating. He was also told to add non-metric qualitative considerations regarding any business practice and customer interaction issues. Mr. Bowman pulled the data, and on October 23, 2015, he provided his superiors with his performance comparison of Mr. Patton and Petitioner. For the period of September through December 2014, Mr. Patton’s first quarter with the company, the quantitative metrics were mixed. Mr. Patton’s overall PMP performance rating of 2.7 was better, falling within the “fully meets expectations” range, whereas Petitioner’s overall rating of 2.2 only partially met her performance expectations. Mr. Patton sold one balloon pump during his first few months with the company. Petitioner was credited with zero sales of balloon pumps during this time, although she noted that she had at least one deferred sale that was not counted during this time. Petitioner achieved 104 percent of her overall sales quota from September to December 2014, although the revenue recognized was from disposables and not pump sales. Mr. Patton achieved 73 percent of his sales quota in his first few months with the company, but that included recognized revenue from a pump sale. For the first three quarters of 2015 (Mr. Bowman was able to extract data through the end of September 2015), the quantitative metrics were decidedly in Mr. Patton’s favor. During this period, Petitioner had zero pump sales, while Mr. Patton had seven pump sales, and Petitioner achieved 83 percent of her sales quota through sales of disposables, whereas Mr. Patton achieved 112 percent of his sales quota, largely from pump sales. On the qualitative considerations, Mr. Bowman summarized the issues he had been addressing with Petitioner in an attempt to bring about improvements, including communication issues with customers and internal personnel, as well as his concerns about her frequent requests for low pricing approval. He also noted a recent situation where Petitioner lost a pump sale to a hospital in Alabama. When he had asked Petitioner why she thought she did not get the sale, she explained to Mr. Bowman that the chief of perfusion “may have felt I was too aggressive,” that Petitioner “felt there was tension between he and I,” and “obviously something happened here.” (R. Exh. 22, last page). Petitioner acknowledged in her deposition that what Mr. Bowman said was true, but that the tension was due to extenuating circumstances. In contrast, for Mr. Patton, Mr. Bowman reported no issues of concern in just over one year of managing him. As Mr. Bowman testified at hearing, Mr. Patton was an excellent sales representative and Mr. Bowman found no performance deficiency issues to address with him. Petitioner offered no evidence to the contrary, stating that she had no knowledge of Mr. Patton’s performance or the quality of his salesmanship. Based on the performance comparison, Mr. Bowman recommended that Mr. Patton should be retained as the salesperson to cover the consolidated southeastern sales territory. Mr. Bowman’s recommendation was reasonable. Mr. Bowman’s recommendation was accepted and the decision made by senior management was to retain Mr. Patton as the salesperson for the consolidated sales territory and to terminate Petitioner’s employment due to elimination of her sales position. Petitioner presented no evidence to refute the reasonableness of Respondent’s business judgment to consolidate sales territories and reduce one sales position after the loss of the HPG contract. Instead, Petitioner only pointed to the suspicious timing of the decision in relation to her complaint to the human resources department about Mr. Bowman.7/ Petitioner does not contend that anyone other than Mr. Bowman himself discriminated against her or retaliated against her. The evidence does not support Petitioner’s claim that Mr. Bowman discriminated against Petitioner on the basis of her age or her sex, nor does the evidence support Petitioner’s claim that Mr. Bowman retaliated against Petitioner because she complained about him to the human resources department. Instead, the evidence established that when Respondent’s diminished business growth prospects caused it to make the reasonable business decision to reduce its sales positions in the southeast states, Petitioner lost out in a fair comparison on the merits of her performance compared to the other salesperson’s performance. Petitioner’s flagging job performance evident from 2011 forward, while not bad enough to warrant immediate action to terminate her, was not good enough to withstand comparative assessment with Mr. Patton. Petitioner’s view that the choice to retain Mr. Patton must have been a pretext for discrimination or retaliation is in keeping with Petitioner’s inflated view of her own performance. At the same time, Petitioner’s view is also an unfair discredit to Mr. Patton, when the unrebutted evidence was that he was an excellent sales representative. Petitioner admitted that she knows nothing about the quality of his sales work or the quantitative achievements he garnered in just over one year with the company. Although findings on the subject of damages are unnecessary in light of the above findings, even if Respondent had been found guilty of unlawful employment practices, the undersigned would have to find that Petitioner failed to prove her actual economic damages that would have been caused by those employment practices. Petitioner did not present proof of her earnings, and offered only limited evidence of her attempts to mitigate damages with other income and efforts to look for a comparable job. Indeed, in Petitioner’s PRO, this shortcoming appears to be admitted because Petitioner requested an opportunity to submit support for damages. Petitioner’s opportunity to present evidence to support her case was at the final hearing before the evidentiary record closed. There was no request for a bifurcated hearing to address liability, followed by a separate evidentiary hearing on damages if needed. Thus, Petitioner had her opportunity, and failed to prove damages.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief by Petitioner, Donna Earley, against Respondent, Teleflex, Inc. DONE AND ENTERED this 2nd day of March, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2017.
