The Issue The issue in this case is whether Petitioner, a licensed Florida real estate sales associate, violated provisions of Subsections 475.25(1)(b), 475.25(1)(d)1., 475.25(1)(e), 475.42(1)(b), and 475.42(1)(d), Florida Statutes (2007),1 and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (the Department), is the state agency responsible for licensing and monitoring real estate sales associates within the state. It is charged also with the duty to prosecute administrative complaints for violations of the law by real estate sales associates. Respondent, Caroline Mohan (Ms. Mohan), is a licensed real estate sales associate who holds License No. 3087231. She was registered as a sales associate with Coral Shores Realty (Coral Shores) in Fort Lauderdale, Florida, from September 12, 2005, to March 28, 2008. At all times relevant to the charges against her, Ms. Mohan was the Coral Shores sales associate who was the listing agent for Anthony Mannarino, the seller of property located at 10530 Versailles Boulevard, Wellington, Florida (the "subject property"). At closing, Coral Shores was to have received at 2.5 percent commission and pay a portion of the commission to Ms. Mohan. Dawn Campbell and Garth Smith (the buyers) entered into a Residential Sale and Purchase Contract (the Contract) to purchase the subject property from Mr. Mannarino. Pursuant to the contract, the buyers were to deposit $10,000 in an escrow account in two $5,000 installments. The Contract was signed on or about March 12, 2007. The transactions took place electronically and Mr. Smith sent Ms. Mohan a photocopy of a $5,000 check that he was supposed to have deposited, under the terms of the contract, in the account of Closings Unlimited Title Company (Closings Unlimited), but he never sent the check to Closings Unlimited. The seller asked Ms. Mohan to have the buyer use a different escrow agent, Southeast Land Title (Southeast), and so the buyer wired $5,000.00 to Southeast, but the Contract was not amended to reflect the name of the new escrow agent. A $5,000 deposit was sent to Southeast by the buyers, but they never paid the $5,000 balance due on the deposit. Mr. Smith testified the he could not make the second payment because he gave $5,000 in cash to an employee to deposit in his account so that he could make a wire transfer, but the employee took the money. On April 3, 2007, Southeast faxed a notice to Coral Shores, with an attached letter to the buyers, informing them of its intention to respond to a demand (presumably by the seller) to release the $5,000 held in escrow related to the subject property. As a result of a complaint filed by Dorothy Hoyt, a representative of Southeast, the matter was investigated and an Administrative Complaint filed against Respondent. The Administrative Complaint alleges that Ms. Mohan personally received funds, fraudulently failed to account for those funds, and acted, without the proper license, as a broker by accepting the deposit. The Department's investigator testified that he was never able to determine if the escrow deposit was deposited at any bank, lending institution or with Dorothy Hoyt of Southeast Land Title of Boca Raton. He "believe[s] there was a wire for one deposit made, but [he] did not receive confirmation of that." Regarding his conversations with Ms. Hoyt, the investigator reported "she did state that . . . she had received - eventually received $5,000.00 and was still waiting [for] another $5,000.00 in order to have the full $10,000.00 deposit." In his report, the Department's investigator claimed that Respondent was terminated from employment by her Coral Shores broker, Ronald Cika, as a result of her misconduct in handling transactions related to the subject property. That claim was contradicted by Mr. Cika and by Ms. Mohan. Their testimony was supported by the contents of e-mails between his office and Respondent that show that she became inactive as a realtor while traveling overseas with an offer to reactivate with the same broker upon her return. Mr. Cika testified that he is aware of a lawsuit filed by Dawn Campbell related to a different address on the same street, 10526 Versailles Boulevard, but that he is not aware of any issues related to 10530 Versailles Boulevard, the subject property. Jannet Rodriguez, owner of Closings Unlimited, testified that she was never contacted and never opened a file to serve as either an escrow or closing agent for the subject property at 10530 Versailles Boulevard. She, too, is involved only in issues related to 10526 Versailles Boulevard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, dismissing the complaint against Respondent, Caroline Mohan. DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 12th day of June, 2009.
The Issue Whether the agency has an unpromulgated statement of general applicability that imposed a requirement not specifically required by statute or by an existing rule, and which has been utilized against Petitioners to their detriment.
Findings Of Fact On March 24, 1994, the Department of Revenue (Department) issued a Notice of Reconsideration (NOR) that claimed the Petitioners, Terry and Donna Ernst, had willfully failed to collect sales tax. Petitioners' assertion of an exemption in connection with the sales tax assessment was denied. The NOR provided that the Petitioners are the president and vice- president of Hussh, Inc., a retail apparel store in Palm Beach, Florida and that such company made sales to customers for delivery in the store and for shipment outside of the State of Florida. At issue were the alleged shipments to out of state destinations. Pertinent to this case is the language in the NOR found at page two which provided: Due to the inadequacy and volume of Hussh's records, the auditor sampled the available records, and assessed Hussh for asserted out of state sales that were improperly documented. According to the auditor, many of the sales receipts or invoices of asserted out of state shipments were missing the top portion of the invoice. Significantly, this portion of the invoice would contain the names, addresses, and asserted export destination information on each sale. Other invoices were stamped, "out of state shipped," but no destination information was present on the invoice. [Emphasis added.] The Petitioners maintain that the portions of the NOR emphasized in the foregoing paragraph constitute an agency statement of general applicability and is, therefore, an unpromulgated rule. The Department does not have a rule which lists all documentation which might establish an exemption for sales tax assessment. Similarly, the Department does not have a rule that lists the type of documentation which would be inadequate to establish an exemption for sales taxes. The Department's existing rule, Rule 12A-1.064, Florida Administrative Code, provides, in part: (1)(a) Sales tax is imposed on the sales price of each item or article of tangible personal property, unless otherwise exempt, when the property is delivered to the purchaser or his representative in this state. However, the tax does not apply to tangible personal property irrevocably committed to the exportation process at the time of sale, when such process has been continuous or unbroken. (b) Intent of the seller and the purchaser that the property will be exported is not sufficient to establish the exemption; nor does delivery of the property to a point in Florida for subsequent transportation outside Florida necessarily constitute placing the property irrevocably in the exportation process. Tangible personal property shall be deemed committed to the exportation process if: The dealer is required by the terms of the sale contract to deliver the goods outside this state using his own mode of transportation. The dealer must retain in his records trip tickets, truck log records, or other documentation reflecting the specific items and export destination; The dealer is required by the terms of the sale contract to deliver the goods to a common carrier for final and certain movement of such property to its out of state destination. Sales by a Florida dealer are exempt when the dealer delivers the merchandise to the transportation terminal for shipment outside this state and secures a dock or warehouse receipt and a copy of the bill of lading. On shipments to points outside the United States, a shipper's export declaration shall also be obtained; [Emphasis added.] Rule 12A-1.093, Florida Administrative Code, requires taxpayers to maintain and preserve records. This rule provides, in part: (2) Each dealer defined in Chapter 212, F.S., each licensed wholesaler, and any other person subject to the tax imposed by Chapter 212, F.S., shall keep and preserve a complete record of all transactions, together with invoices, bills of lading, gross receipts from sales, RESALE CERTIFICATES, CONSUMER EXEMPTION CERTIFICATES and other pertinent records and papers as may be required by the Department of Revenue for the reasonable administration of Chapter 212, F.S., and such books of account as may be necessary to determine the amount of tax due thereunder. The terms "bill of lading," "dock or warehouse receipt," and "invoice" are common terms used in the business community. Each connotes that, at the minimum, certain information will be retained on the face of the document. For example, according to Petitioners' witness, the minimum information expected on a bill of lading would be: the name of the person that the item is being shipped to, the item being shipped, the cost of the shipment, and the terms of the shipment with the value of the item being shipped. Similarly, the minimum information which is expected on an "invoice" would be: a description of the item sold, the amount of the sale, and the name of the person to whom the item was sold. The terms "bill of lading," "dock or warehouse receipt," and "invoice" are not defined by rule. The Department determined whether an exemption was documented based upon the results of this audit.
Findings Of Fact Petitioner's business activities include the sale of tangible personal property such as caskets and burial vaults. The written sales contract utilized by Petitioner sets forth the amount of sales tax and includes that sum in the total amount which the customer agrees to pay. The contracts are in the form of a note, containing a promise to pay, and were sold at discount by the Petitioner at certain times during the audit period. The contracts require a down payment and installment payments thereafter. The contracts further contain a clause allowing the customer three days in which to cancel the contract, under which circumstances the customer is reimbursed all moneys paid by him to Petitioner. Under Petitioner's retained- title, conditional-sale contract, if the customer cancels the contract or stops making payments at any time subsequent to the initial three-day period, Petitioner retains all sums which have been paid to it by the customer. Petitioner's business practice is to pay its salesmen commission from the down payment on a contract. Petitioner operates on the accrual method of accounting, and its sales tax liability is entered on its books at the time of the sale. Petitioner pays the total sales tax due at the time that it enters into the contract. When a contract is cancelled (after the initial three-day cancellation period), Petitioner claims a credit against its current liability for the full amount of sales tax charged on the transaction when it files its sales tax report for the month, even though at least the down payment, and frequently additional payments, has been collected from the customer. On audit, Respondent allowed full credit for the amount of sales tax when a contract had been cancelled within the three-day cancellation period, but disallowed that portion of the credits claimed which related to the down payments and installments which the Petitioner retained when a contract was cancelled after the three-day period. Respondent did allow, however, a credit for taxes attributable to the unpaid balance under each cancelled contract.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: The Department of Revenue enter its final order disallowing to Petitioner a credit for taxes attributable to amounts retained by it upon the cancellation of its installment sales contracts. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of May, 1980. LINDA M .RIGOT Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1980. COPIES FURNISHED: Ms. Cynthia Savage Comptroller Restlawn, Inc. 2600 Ribualt Scenic Dr Post Office Box 9306 Jacksonville, FL 32208 E. Wilson Crump, II, Esq. Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, FL 32301 John D. Moriarty, Esq. Deputy General Counsel Department of Revenue Room 104, Carlton Building Tallahassee, FL 32301 Mr. Randy Miller Executive Director Department of Revenue Room 102, Carlton Building Tallahassee, FL 32301
Findings Of Fact From March 22, 1976, through April 21, 1976, Glober was a registered real estate salesman in the employ of FAR. From September 22, 1975, through December 24, 1975, Fisch was a registered real estate salesman in the employ of FAR. From December 29, 1975, through January 15, 1976, and from January 23, 1976, through March 31, 1976, Davidson was a registered real estate salesman in the employ of FAR. FAR was a registered corporate broker, located in Dade County, Florida. During those periods of time, FAR was engaged in an enterprise whereby advanced foe listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituting the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate end apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Respondents. FREC introduced no evidence to show that Respondents represented that the property could be sold for several times +he purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Respondents either made the representations or knew them to be false. There was no evidence introduced to show that Respondents knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Respondents were dishonest or untruthful. No evidence was introduced to establish the amended allegation that Glober and Davidson were guilty of a violation of a duty imposed by law.
The Issue Did Respondent, Ricoh Americas Corporation, (Ricoh), discriminate against Petitioner, Tamara Gleason (Ms. Gleason), because of her gender by demoting her? Did Ricoh retaliate against Ms. Gleason for complaining about gender discrimination?
Findings Of Fact Ricoh is in the business of selling and servicing document imaging and output equipment, including copiers, fax machines, printers, and related supplies and services such as software, paper, and toner. Ricoh has locations across the United States. Ms. Gleason worked for Ricoh from August 2008 until she resigned on March 31, 2010. She worked in its East Florida Marketplace. That area covers the eastern part of Florida from Jacksonville to Miami. In 2008, and at all times relevant to this proceeding, Al Hines (Mr. Hines) was the East Florida Marketplace manager. His responsibilities included supervising sales personnel and meeting sales quotas. Mr. Hines has worked for Ricoh in various positions for over 31 years. He is based in Ricoh's Maitland, Florida, office near Orlando. In 2008, the organizational structure of the East Florida Marketplace consisted of two group sales managers, one in Central Florida and one in South Florida. These group sales managers reported directly to the Marketplace Manager Mr. Hines. They oversaw sales managers who in turn supervised the various account executives. Also, one sales manager in Jacksonville reported directly to Mr. Hines. The group sales managers and sales managers were responsible for supervising the sales personnel, consisting of major account executives, senior account executives, and account executives. Ricoh assigned major account executives to work with specific large client accounts. Senior account executives were more experienced sales representatives. Senior account executives and account executives were assigned territories. Daytona Beach or a series of zip codes are examples of territories. Ricoh also assigned "vertical markets" for a specific industry, such as "faith-based" institutions to an Account Executive. Ms. Gleason applied and interviewed for an account executive position in the central Florida area of the East Florida Marketplace in August 2008. Mr. Hines, General Sales Manager Cecil Harrelson, and Sales Manager Anthony Arritt interviewed Ms. Gleason. On her resume and in her interview, Ms. Gleason represented that she had 20 years of experience as a sales representative in the office equipment field. Her resume stated that she was "[p]roficient in all areas relating to sales and leasing of copiers, printers, scanners, fax machines and various software solutions. Consistently exceeded sales quota." After the interview, Mr. Hines decided to hire Ms. Gleason for Mr. Harrelson's team. Ricoh hired Ms. Gleason as a senior account executive on August 11, 2008. Mr. Hines initially assigned her to work in the vertical "faith-based" market. In September 2008, a sales manager position for the Daytona Beach/Melbourne territories, overseen by Mr. Hines, opened. Three males applied for the position. Ms. Gleason did not apply. Mr. Hines asked Ms. Gleason if she would be interested in being considered for promotion to sales manager. Although Ms. Gleason had no prior management experience and had only worked for Ricoh for two months, Mr. Hines believed that she would be good in the position and asked her to consider it. Ms. Gleason accepted Mr. Hines' proposal. On September 30, 2008, Mr. Hines promoted her to sales manager. Ricoh provided Ms. Gleason manager training. In April and May of 2009, Ricoh restructured its sales positions. Ricoh changed group sales manager positions to strategic account sales manager positions. It removed all major account executives from teams supervised by sales managers and placed them on the teams supervised by the strategic account sales managers. In central Florida, the reorganization resulted in Cecil Harrelson being moved from general sales manager to strategic account sales manager. The major account executives on Ms. Gleason's team (Mary Cobb, David Norman, and Patrick Mull) and Arritt's team (Todd Anderson and Lynn Kent) were moved onto the new team supervised by Harrelson. All of the major account executives in the East Florida Market supervised by Mr. Hines were transferred to strategic account sales manager teams. On average, the sales managers in the East Florida Marketplace each lost two major account executives due to the reorganization. Mr. Hines required all of the sales managers to hire new sales personnel to bring the number of sales personnel on their teams to expected levels. This is known as maintaining "headcount." Ms. Gleason knew of this requirement. Also it was not new. The responsibility to maintain headcount pre-existed the reorganization. From the time of her hire until early 2009, around the time that the Company reorganized its sales positions, Ms. Gleason had no issues with Mr. Hines or complaints about his management. As a sales manager, Ms. Gleason bore responsibility for supervising a team of sales personnel and for ensuring that her team members met their monthly sales quotas. In addition, Ms. Gleason was responsible for maintaining the headcount on her team. Mr. Hines assigned monthly sales quotas for sales managers. He based the quotas on the types of sales representatives on each team. The monthly quota for major account executives was $75,000. For senior account executives, the monthly quota was $40,000. The monthly quota for account executives was $30,000. Mr. Hines conducted bi-monthly two-day sales meetings with all of the sales managers and office administrators to discuss their sales progress. Managers were expected to discuss their completed and forecast sales. Mr. Hines required managers to stand before the group to report on their progress and discuss any issues with quotas or goals based on month-to-date, quarter-to-date, and year-to-date expectations. Mr. Hines also considered "sales in the pipeline," or anticipated sales, to help determine sales trends for the next 90 days and in evaluating sales personnel. In addition, Mr. Hines conducted weekly sales calls with the sales managers to review their sales progress. During the calls, sales managers were to identify which sales they believed had a strong, "95 percent chance," of closing. Mr. Hines also discussed the performance of each individual sales representative on a manager's team during the calls. The discussions included examination of reasons for non-performance. Around the time of the reorganization, Mr. Hines transferred Senior Account Executive Tina Vargas in the Ocala territory from Mr. Arritt's team to Ms. Gleason's team. Mr. Hines made this transfer, in part, to help Ms. Gleason achieve her headcount and sales quotas. At the time of the transfer, Vargas expected to complete a large, one-time $320,000 sale on which she had been working. Mr. Hines anticipated that this sale would help Ms. Gleason achieve her sales quotas. Ms. Vargas was not located in the Daytona Beach/Melbourne territory. But Mr. Hines expected that Ms. Vargas would require minimal supervision because she was an experienced sales representative. Other managers also supervised sales representatives in multiple or large territories. For example, Cecil Harrelson supervised sales representatives in four areas. They were Orlando, Melbourne, Daytona, and Gainesville. Sales Manager Derrick Stephenson supervised a substantially larger geographic area than Ms. Gleason. His area reached from Key West to West Palm Beach. After the reorganization, Ms. Gleason's sales productivity declined. She also was not maintaining her headcount. The other Sales Managers experienced the same problems initially. But they recovered from the changes. Ms. Gleason never did. For the seven-month period of April through October, Ms. Gleason's record of attaining her quota was as follows: April - 35% or $70,867 in sales May - 196% or $385,452 in sales (Due to Ms. Vargas joining the team with a pending sale; 23% without Ms. Vargas.) June - 31% or $61,136 in sales July - 8% or $12,948 in sales August - 12% or $19,521 in sales September - 11% or $18,261 in sales October - 23% or $36,811 in sales During that same period, Ms. Gleason was the lowest performing sales manager in July (19 points less than the next lowest), August (14 points less than the next lowest), September (33 points less than the next lowest), and October (6 points less than the next lowest). She was the second lowest in June when Mr. Comancho was the lowest with 25% attainment compared to Ms. Gleason's 31%. The attainment percentages for all of the sales managers varied. Each had good months and bad months. After April and May, Ms. Gleason, however, had only bad months. For the months June through October, Ms. Gleason was the only sales manager who did not achieve 50% attainment at least twice, with two exceptions. They exceptions were Mr. Comancho and Mr. Rodham. Mr. Comancho chose to return to an account executive position after Mr. Hines spoke to him about his performance. Mr. Rodham joined Ricoh in October and attained 52% of quota that month. In addition to steadily failing to meet 50% of her quota, Ms. Gleason failed to maintain a full headcount for the same period of time. No male sales managers in Ricoh's East Florida Marketplace had similar deficiencies in meeting sales quota. There is no evidence that any male sales managers in Ricoh's East Florida Marketplace had similar failures to maintain headcount. There is no evidence of sales manager productivity or headcount maintenance for any of Ricoh's other markets. Ms. Gleason tried to improve her headcount by hiring additional sales personnel. She conducted a job fair with the assistance of Ricoh's recruiter. They identified 19 applicants for further consideration and second interviews. Mr. Hines reviewed and rejected all 19. They did not meet his requirement for applicants to have outside sales experience and a history of working on a commission basis. Ms. Gleason was aware of Mr. Hines' requirements. But she interpreted them more loosely than he did. Mr. Hines helped Ms. Gleason's efforts to improve her headcount by transferring four sales representatives to her team. At Ms. Gleason's request, Mr. Hines also reconsidered his rejection of one candidate, Susan Lafue, and permitted Ms. Gleason to hire her. Still Ms. Gleason was unable to reach the expected headcount. David Herrick, one of the individuals who Mr. Hines assigned to Ms. Gleason's team, had already been counseled about poor performance. Mr. Hines directed Ms. Gleason to work with Mr. Herrick until he sold something. This was a common practice with newer sales representatives. Mr. Herrick had also been assigned to male sales managers. Mr. Hines asked Ms. Gleason and Mr. Herrick to bring him business cards from their sales visits. He often did this to verify sales efforts. After Mr. Hines reviewed the cards, he threw them in the trash. But he first confirmed that Ms. Gleason had the information she needed from the cards. Mr. Hines often threw cards away after reviewing them to prevent sales representatives providing the same card multiple times. Ricoh's Human Resources Policy establishes a series of steps for disciplinary action. The first is to provide an employee a verbal warning. The next two steps are written warnings before taking disciplinary action. Mr. Hines gave Ms. Gleason a verbal warning about her performance. He spoke to her about improving sales production and headcount. Ms. Gleason's performance did not improve despite her efforts. Later, Mr. Hines gave Ms. Gleason a written warning in a counseling document dated August 31, 2009. The document stated that her performance had not been acceptable. The counseling memorandum directed Ms. Gleason to reach 65% of her quota. It also said that she was expected to maintain a minimum of seven people on her team and work in the field with her sales representatives at least four days a week. Finally the memorandum advised that failure to perform as directed would result in "being moved to sales territory." Around the end of August 2009, Mr. Hines began counseling Israel Camacho, a male, about his performance. Mr. Comancho decided to return to an account executive position. In September Ms. Gleason achieved 11% of her quota. She also did not maintain her headcount. September 24, 2009, Mr. Hines gave Ms. Gleason a second written counseling memorandum. It too said that her performance was unacceptable. The memorandum required her to produce 80% of her quota and maintain a minimum of seven people on her team. It also cautioned that failure to meet the requirements would result in "being moved to sales territory." Ms. Gleason acknowledges that she understood that if she did not perform to the expected levels that she could be demoted. After the written warning of September 24, 2009, Ms. Gleason's performance continued to be unacceptable. For October, Ms. Gleason had $23,811 in sales for a total attainment of 23% of quota. Again, she did not maintain her team's headcount. Sometime during the June through October period, Mr. Hines criticized Ms. Gleason's management style, saying that she "coddled" her personnel too much. He also directed her to read the book "Who Moved My Cheese" and discuss it with him and consider changing her management style. Mr. Hines often recommended management books to all managers, male or female. There is no persuasive evidence that Ms. Gleason is the only person he required to read a recommended book and discuss it with him. Mr. Hines' comments and the reading requirement were efforts to help Ms. Gleason improve her performance and management. During the June through October period, Ms. Gleason yawned during a manager meeting. She maintains that Mr. Hines' statement about her yawn differed from the words he spoke to a male manager who fell asleep in a meeting. The differences, she argues, demonstrated gender discrimination. They did not. In each instance Mr. Hines sarcastically commented on the manager's behavior in front of other employees. He made no gender references. And the comments were similar. Sometime during the June through October period Mr. Hines also assigned Ms. Gleason to serve in an "Ambassador" role. "Ambassadors" were part of a Ricoh initiative to develop ways to improve the customer experience. There is no evidence that males were not also required to serve as "Ambassadors." And there is no persuasive evidence that this assignment was anything other than another effort to improve Ms. Gleason's management performance. Also during the June through October period Ms. Gleason proposed hosting a team building event at a bowling alley. Someone in management advised her that the event could not be an official company sponsored event because the bowling alley served alcohol. Again, there is no evidence that males were subjected to different requirements or that the requirement was related to Ms. Gleason's gender. During this same period, Ms. Gleason received written and oral communications from co-workers commenting on her difficulties meeting Mr. Hines' expectations. They observed that she was having a hard time and that they had seen Mr. Hines treat others similarly before discharging them. Nothing indicates that the others were female. These comments amount to typical office chatter and indicate nothing more than what the counseling documents said: Mr. Hines was unhappy with Ms. Gleason's performance and was going to take adverse action if it did not improve. On November 12, 2009, Ms. Gleason sent an email to Rhonda McIntyre, Regional Human Resources Manager. Ms. Gleason spoke to Ms. McIntyre that same day about her concerns about Hines' management style. Ms. Gleason said she was afraid that she may lose her job and that she was being set up for failure. Ms. McIntyre asked Ms. Gleason to send her concerns in writing. Ms. Gleason did so on November 13, 2009. Ms. Gleason's e-mail raised several issues about Mr. Hines' management. But Ms. Gleason did not state in her email or her conversations that she was being discriminated against or treated differently because of her gender. Ms. Gleason never complained about gender discrimination to any Ricoh representative at any time. On December 1, 2009, Mr. Hines demoted Ms. Gleason from sales manager to senior account executive. He assigned her to work on Mr. Arritt's team. Ms. Gleason had no issues with Mr. Arritt and no objection to being assigned to his team. Mr. Hines has demoted male sales managers to account executive positions for failure to attain quotas or otherwise perform at expected levels. The male employees include Ed Whipper, Kim Hughes, and Michael Kohler. In addition, Mr. Comancho was the subject of counseling before he chose to return to an account executive position. After Mr. Hines demoted Ms. Gleason, he promoted Diego Pugliese, a male, to sales manager. He assigned Mr. Pugliese the same territory that Ms. Gleason had. When Mr. Hines assigned Ms. Gleason to Mr. Arritt's team, Mr. Hines instructed Mr. Arritt to give Ms. Gleason two territories with substantial "machines in field" (MIF) to buttress Ms. Gleason's opportunity to succeed in her new position. Mr. Arritt assigned Ms. Gleason the two territories that records indicated had the most MIF. Ms. Gleason asserts that the preceding account executives maintained the records for the area poorly and that the new territories had no greater MIF than other areas. That fact does not indicate any intent to discriminate against Ms. Gleason on account of her gender. In January 2010, after Ms. Gleason's demotion, Mr. Harrelson invited Ms. Gleason to attend a non-company sponsored, employees' poker party. She had been invited to other employee poker parties and attended some. Mr. Harrelson withdrew the invitation saying that Mr. Hines was attending and that Mr. Harrelson thought Ms. Gleason's presence would be uncomfortable. Mr. Harrelson did not say that Mr. Hines had made this statement. And Mr. Harrelson was not Ms. Gleason's supervisor. Nothing about the exchange indicates that Ms. Gleason's gender had anything to do with withdrawal of the invitation. The incident seems to be based upon the natural observation that Mr. Hines might be uncomfortable socializing with someone he had recently demoted. After her demotion, Ms. Gleason asked Mr. Arritt to go with her on a "big hit" sales call. Ms. Gleason claims that Mr. Arritt told her that Mr. Hines told him not to go on sales calls with her. That may have been Mr. Arritt's interpretation of what Mr. Hines said. Mr. Hines had told Mr. Arritt that because Ms. Gleason was an experienced sales representative Mr. Arritt should focus his efforts on the less experienced sales representatives on his team. This was a reasonable observation. There is no evidence indicating that Mr. Hines treated Ms. Gleason differently in this situation than he had similarly experienced males. Ms. Gleason brought this issue to Ms. McIntyre's attention. The issue was resolved. Mr. Hines told Mr. Arritt that if Ms. Gleason wanted more assistance then Mr. Arritt should attend meetings with Gleason and provide any other assistance she believed she needed. Ms. Gleason had no other issues with Mr. Hines during the remainder of her employment. On March 31, 2010, Ms. Gleason submitted a memorandum stating that she was resigning "effective immediately." There is no evidence of derogatory or harassing comments by Mr. Hines or any other Ricoh representative toward Ms. Gleason referring to gender. There is no evidence of sexually suggestive comments or actions by a Ricoh representative. There also is no evidence of physically intimidating or harassing actions by any Ricoh representative.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition of Tamara A. Gleason in FCHR Case Number 2010-01263. DONE AND ENTERED this 18th day of February, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 18th day of February, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kimberly A. Gilmour, Esquire 4179 Davie Road, Suite 101 Davie, Florida 33314 David A. Young, Esquire Fisher & Phillips LLP 300 South Orange Avenue, Suite 1250 Orlando, Florida 32801 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact From March 4, 1976, through March 18, 1976, and from April 19, 1976, until the business closed in 1976, Lipshutz was a registered real estate salesman in the employ of FAR. From October 29, 1975, through February 18, 1976, Gottstein was a registered real estate salesman in the employ of FAR. From February 20, 1976, until March 31, 1976, and from April 19, 1976, until the business closed in 1976, Beck was a registered real estate salesman in the employ of FAR. FAR was a registered corporate broker, located in Dade County, Florida. During those periods of time, Far was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owners for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Respondents. FREC introduced no evidence to show that Respondents represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Respondents either made the representations or knew them to be false. There was no evidence introduced to show that Respondents knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Respondents were dishonest or untruthful.
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.
Findings Of Fact The Parties. Petitioner, Sheraton Associates of Orange Park, Ltd. (hereinafter referred to as "Sheraton Associates"), was formed as a Florida limited partnership on November 15, 1973. It was formed to own a motel in Orange Park, Florida. The business address of Sheraton Associates is Post Office Box 724848, Atlanta, Georgia 31139 At all times relevant to this proceeding, Philip A. Browning, Jr., was the general partner of Sheraton Associates. Respondent, the Department of Revenue (hereinafter referred to as the "Department"), is an agency of the State of Florida charged with responsibility for, among other things, the assessment and collection Florida sales and use tax. Chapter 212, Florida Statutes. The following information was stipulated to be correct by the parties: Sheraton Associates' employer identification number: 58-1178445; DTA Number: 9201194; c. Audit Number: 9021109195 Audit Period: 7/1/87 - 2/13/91; Proposed Assessment and Sustained Amount: $69,142.65; Local Government Infrastructure-Surtax Audit Period: 2/1/90 - 2/13/91 Proposed Assessment and Sustained Amount: $1,976.30; Amount Contested: Sales Tax $69,142.54 Surtax $ 1,976.30 The Operation of Sheraton Associates. From 1974 until February 13, 1991, Sheraton Associates owned a Best Western Motel (hereinafter referred to as the "Motel"), located in Orange Park, Florida. The Motel (land and building) was the sole asset of Sheraton Associates. The purchase of the land and building for the Motel was financed through Freedom Federal Savings and Loan of Tampa, Florida. Sheraton Associates executed a Promissory Note and a Mortgage securing the payment of the note to Freedom Federal Savings and Loan. Sheraton Associates entered into a management agreement with Orange Park Associates, Inc. (hereinafter referred to as "Orange Park Associates"). Pursuant to the agreement, Orange Park Associates operated the Motel, including the restaurant and lounge, owned by Sheraton Associates. Philip Browning, Jr., was the president and a director of Orange Park Associates. Mr. Browning was also the general partner of Sheraton Associates. Mr. Browning executed and delivered to Freedom Federal Savings and Loan as further security for the Promissory Note from Sheraton Associates a Collateral Assignment of Rents and Leases, an Assignment of Contracts, Licenses, Permits, Trade Names and Documents and a Security Agreement for all other tangible and intangible personal property. Orange Park Associates operated the Motel on behalf of Sheraton Associates for over sixteen years. The manager of the Motel was Greg Kaylor. The Resolution Trust Corporation's Takeover of the Motel Property. The Resolution Trust Corporation (hereinafter referred to as the "RTC"), took over all of the assets of Freedom Federal Savings and Loan as receiver in late 1989 or early 1990. Sheraton Associates defaulted on the Promissory Note to Freedom Federal Savings and Loan. The RTC, therefore, commenced foreclosure on the property of Sheraton Associates. A Notice of Lis Pendens seeking foreclosure on the mortgage on the Motel property formerly held by Freedom Federal Savings and Loan was issued by the RTC on or about July 16, 1990. A Final Judgment of Foreclosure was entered in the Circuit Court, Fourth Judicial Circuit, in and for Clay County, Florida, on or about December 7, 1990. On or about February 13, 1991, the RTC took title to the Motel property pursuant to foreclosure. The RTC continued to operate the Motel through an entity known as Real Estate Recovery. Real Estate Recovery in turn operated the Motel through an entity known as Tecton. Mr. Kaylor was hired by Tecton. As of February 14, 1991, Mr. Kaylor became manager of the Motel on behalf of Tecton. The Department's Audit. On or about March 12, 1991, James Estey informed Mr. Kaylor that the Department intended to conduct an audit of the operation of the Motel. The originally planned audit period was modified to reflect the transfer of the assets of Sheraton Associates by Mr. Estey. The modified audit period was July 1, 1987 through February 13, 1991. Although Mr. Kaylor was employed by Tecton after February 13, 1991, Mr. Kaylor continued to act on behalf of Sheraton Associates with the Department. Mr. Kaylor made the records of the Motel available to Mr. Estey, acted as the contact person for Sheraton Associates with Mr. Estey and kept Philip Browning informed about the progress of the audit. During Mr. Estey's first conversation with Mr. Kaylor, Mr. Estey was informed that the RTC was the owner of the Motel property. Mr. Kaylor told Mr. Estey that the RTC had taken over the property by "foreclosure." Mr. Estey did not know what the RTC was. Nor did Mr. Estey understand the RTC's connection with the Federal government. Mr. Estey assumed that the RTC was simply a corporate business entity. The evidence failed to prove that Mr. Kaylor told Mr. Estey that Sheraton Associates had declared "bankruptcy." The Department, however, because of Mr. Estey's lack of understanding of the RTC, believed that a transfer of the assets of Sheraton Associates had been transferred pursuant to a bankruptcy sale. The audit of Sheraton Associates commenced in May of 1991. On or about August 30, 1991, Mr. Estey presented his audit findings to Mr. Kaylor by Notice of Intent to Make Sales and Use Tax Audit Changes. Mr. Estey had determined that Sheraton Associates owed additional sales tax, plus penalties and interest, for the audit period of $71,118.00 When informed that there was additional tax due for the audit period, Mr. Kaylor inquired of Mr. Estey as to whether Sheraton Associates was liable for the tax. Mr. Estey still believed that the RTC was just another corporation and that the RTC had "acquired" the Motel property through bankruptcy. Therefore, Mr. Estey informed Mr. Kaylor that the RTC would be liable for the sales tax deficiency absent an agreement between Sheraton Associates and the RTC to the contrary. Mr. Kaylor informed Philip Browning of Mr. Estey's representations. Philip Browning directed Mr. Kaylor to get the representation in writing from Mr. Estey. Mr. Kaylor, therefore, requested that Mr. Estey confirm his representations in writing concerning the liability of the RTC. On September 4, 1991, Mr. Estey wrote, in part, the following to Mr. Kaylor: * * * I checked with my supervisor, Mr. Perry Brown, that DOR has no way of finding out if a private agreement between Mr. Browning and the RTC exists regarding tax liability. My supervisor's position is that if an agreement does not exist, then the liability for the taxes due falls on the RTC per Florida law since RTC acquired the business and is running it. You may want to call Perry Browning for further clarification on this particular issue. He may be reached at 359-6077 also. Joint Exhibit 1. Mr. Kaylor confirmed Mr. Estey's representations in the September 4, 1991 letter by speaking by telephone with Mr. Estey's immediate supervisor, Perry Brown. Perry Brown confirmed the representations of the letter. Based upon Mr. Estey's letter of September 4, 1991, Sheraton Associates took no immediate action to contest the sales tax deficiency alleged in the August 30, 1991 Notice of Intent. Information concerning the results of the audit were went to Philip Browning. Despite having been told that the RTC was liable for the sales tax deficiency, on or about September 27, 1991, Alan Vaughn, Sheraton Associates' accountant, requested an extension of time to challenge the findings of the August 30, 1991 Notice of Intent. That request was granted and Sheraton Associates was given until October 30, 1991, to respond to the Notice of Intent. The Department's Change in Position. In October of 1991 Mr. Estey telephoned Real Estate Recovery's or Tecton's offices. For the first time, Mr. Estey realized that the RTC was not a corporate business and that it was an agency of the Federal government. Mr. Estey informed his supervisor, Perry Brown, who also was not aware of what the RTC was, of his discovery concerning the RTC. Perry Brown then wrote Mr. Vaughn on or about November 7, 1991 and informed him of the following: Jim Estey contacted a representative of the Resolution Trust Corporation and he is of the opinion that Sheraton [sic] Associates of Orange Park would be liable for the tax due on this audit. I would agree with this as the tax was or should have been collected by them. They took over the operation in lieu of foreclosure and did not purchase the business. I am extending the due date of the Notice of Intent to make Audit changes until December 6, 1991. [Emphasis added]. * * * Sheraton Associates' Protest. By letter dated December 5, 1991, Sheraton Associates timely protested the Department's determination of a sales tax deficiency. Sheraton Associates contended that any tax deficiency was payable by the RTC and not Sheraton Associates. Sheraton Associates did not challenge the accuracy of the alleged sales tax deficiency in it's protest of December 5, 1991, or at any subsequent time. On November 30, 1992, the Department issued a Notice of Decision sustaining the assessment. On December 30, 1992, Sheraton Associates filed a Petition for Reconsideration of Notice of Decision. On April 13, 1993, the Department issued a Notice of Reconsideration sustaining the assessment. Sheraton Associates' Detriment. The evidence in this case failed to prove that Sheraton Associates relied upon the Department's initial representation that the RTC was liable for the sales tax deficiency at issue in this proceeding to its detriment. On August 30, 1991, Sheraton Associates was first informed by Notice of Intent to Make Sales and Use Tax Audit Changes that Sheraton Associates was liable for additional sales and use tax. Sheraton Associates was informed that it could challenge this determination. While the Department erroneously informed Sheraton Associates on September 4, 1991, that RTC was liable for the tax, Mr. Vaughn, Sheraton Associates' accountant, was aware that the matter was not final because of the outstanding August 30, 1991 Notice of Intent. Therefore, on September 27, 1991, Mr. Vaughn requested an extension of time in which to respond to the August 30, 1991 Notice. The time within which to file a challenge to the Department's Notice of Sheraton Associate's liability was extended until October 30, 1991. No effort was made by Sheraton Associates to challenge the outstanding Notice of Intent, and it was not reasonable for Sheraton Associates to ignore that Notice of Intent based upon a hand written letter from the Department's auditor. 38 The Department reversed the position asserted in the September 4, 1991 letter from Mr. Estey on or about November 7, 1991. When informed of the change in the Department's position, Sheraton Associates was given until December 6, 1991 to protest the Notice of Intent. This extension eliminated any possible detriment to Sheraton Associates of the original representation from Mr. Estey by giving Sheraton Associates an opportunity to do what it could have done when first informed on August 30, 1991, that there was a sales tax deficiency: challenge the Department's findings. Sheraton Associates in fact did so. In support of its position that it suffered a detriment as a result of Mr. Estey's letter, Sheraton Associates has asserted that it did not assess the audit findings when they were first presented. The evidence failed to prove that Sheraton Associates was prejudiced by not acting immediately or that its actions in not protesting immediately were reasonable in light of the fact that the Notice of Intent had not been withdrawn or modified by the Department. Sheraton Associates has also asserted that its failure to retain its records, which in turn makes it difficult to contest the Department's audit findings, is part of its detrimental reliance. The evidence failed to prove, however, when Sheraton Associates disposed of its records. In light of the fact that the Notice of Intent issued on August 30, 1991, was not withdrawn or modified by the Department to reflect the position asserted by Mr. Estey's September 4, 1991 letter, it was not reasonable for Sheraton Associates to dispose of the records. Finally, Sheraton Associates assertion that it failed to pursue the RTC was caused by Mr. Estey's letter. Again, it was unreasonable for Sheraton Associates to rely on Mr. Estey's letter and not pursue the RTC while the Notice of Intent remained outstanding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Revenue sustaining its August 30, 1991 assessment of additional sales tax, plus penalties and interest, and local government infrastructure surtax, plus penalties and interest. DONE AND ENTERED this 3rd day of March, 1995, in Tallahassee Florida. LARRY J. SARTIN 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 3rd day of March, 1995. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Sheraton Associates' Proposed Findings of Fact Accepted in 1. Accepted in 2 and hereby accepted. Accepted in 4. Accepted in 35. Accepted in 1. Accepted in 7. Accepted in 9-10 and 12-13. Accepted in 13. Accepted in 13 and 15. Accepted in 22. Accepted in 33. Accepted in 34. Accepted in 35. Hereby accepted. Accepted in 25. Hereby accepted. Not supported by the weight of the evidence. See 18-20. Accepted in 26. Not supported by the weight of the evidence. See 36-41. Not relevant. Not supported by the weight of the evidence. The Department's Proposed Findings of Fact Accepted in 1. Accepted in 3 and hereby accepted. Accepted in 4. Accepted in 35. Accepted in 1. Accepted in 7. Accepted in 9-10 and 12-13. Accepted in 13. Accepted in 13 and 15. Accepted in 22. Accepted in 33. Accepted in 34. Accepted in 35. Hereby accepted. Accepted in 5. Accepted in 7. Accepted in 2. Accepted in 8-9. Accepted in 15-16. 20 See 18-20. Accepted in 21. Accepted in 22 and hereby accepted. Hereby accepted. Accepted in 22-23. Accepted in 23. Accepted in 19-20. Accepted in 24. Accepted in 25. Accepted in 28. Cumulative. Not relevant. Accepted in 29. Accepted in 30 Accepted in 31. Accepted in 32. 35-36 Hereby accepted. Accepted in 6. Accepted in 8. Accepted in 11. Accepted in 10-13. Hereby accepted. Accepted in 9. COPIES FURNISHED: Donna Houghton Thames, Esquire Thomas W Brown, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 Olivia P. Klein Assistant Attorney General Jarrell L. Murchison Assistant Attorney General Tax Section, Capitol Building Department of Legal Affairs Tallahassee, Florida 32399-1050 Larry Fuchs Executive Director 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel 204 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact The Petitioner is an agency of the State of Florida charged with licensing and regulating the practice of real estate salesmen and brokers by the various provisions of Chapter 475, Florida Statutes. Included in those duties and enforcement authorities is the duty to investigate conduct by realtors allegedly in violation of Chapter 475, and related rules, and prosecuting administrative proceedings filed as a result of such investigations in order to seek imposition of disciplinary measures against the licensure status of miscreant realtors. The Respondents, at all times pertinent hereto, were licensed real estate brokers or salesmen in the State of Florida, having been issued the license numbers depicted in the Administrative Complaint. Respondent Hurbanis last was issued a license as a broker/salesman located at Sanibel Realty, Inc., Sanibel, Florida. Respondent Pauline Seely was last licensed as a broker/salesman located at VIP Realty Group, Sanibel, Florida. Respondent John M. Parks was licensed as a broker/salesman, last issued for a location at The Realty Shoppe of Lee County in Fort Myers, Florida. Respondent Jean Maxwell was licensed as a broker/salesman located at Suite 205, 1619 Periwinkle Way, Sanibel, Florida. At all times pertinent hereto, the Respondents were licensed and operating in the real estate brokerage business in the employ of VIP Realty Group, Inc., a licensed corporate real estate broker. Concerning the charges in Count I, one Eric Rosen, a real estate salesman employed by VIP Realty Group, Inc., the same firm employing Respondent Pauline P. Seely, obtained Nicholas Fontana and John Priebbe as purchasers of a certain piece of property by sales contract which was owned by Clarence Liebscher and Joseph Kubosch. The sales contract was entered into June 3, 1983, and reflected a purchase price of $315,000, including the sale of certain furniture and other personal property. The complaint alleges that former Respondent Rosen and Respondent Hurbanis, together with the purchasers and sellers, conspired to enter into a second bogus sales contract (so called "double contracting") substantially similar to the first contract, except the sales price was shown to be $350,000 and the terms concerning sale of furniture and other personalty was deleted. It is alleged that this contract was prepared by Rosen under the direction and approval of Respondent Hurbanis for the purpose of obtaining a mortgage loan from a lending institution in an amount greater than the normal percentage of the sales price that the banking laws and policies of such lenders provide as the maximum amount of mortgage financing which can be obtained on a given piece of property. It is alleged that these Respondents were thus attempting to obtain a loan commitment in an amount greater than could have been obtained had the actual sales price of $315,000 been revealed to the lender. The bogus contract showing the $350,000 sales price was allegedly submitted to the lender, AmeriFirst Savings and Loan Association, without the Respondents notifying AmeriFirst that the actual sales price was $315,000. Although witness Rosen for the Petitioner, testified that he believed the contracts involved in this count had been discussed with Mr. Hurbanis he could not say for certain and could not recall the conversation. In fact, another Petitioner witness, Brandy Vallois, stated several times that Mr. Hurbanis was on vacation during the time that the contract was negotiated, executed and submitted to the lender and that, although Respondent Hurbanis was the office manager at VIP Realty Group at the time, others were serving in his stead at the time he was on vacation (the time of the incident alleged in Count I). Although the Department elicited testimony to the effect that seminars had been given where the Respondent, as well as other realtors, had discussed "creative financing," there was no testimony or other evidence that such lectures by the Respondent or others advocated a policy of "double contracting" or in effect deluding lenders into lending more money for real estate purchases than they normally would have if true purchase prices were disclosed. In any event, both the seller and buyer were aware of the situation concerning this transaction and the lender was never deceived or misled because in fact the loan never closed and no funds were disbursed. There was no evidence that the true particulars of this transaction were not disclosed to the lender. Count II Count II concerns a transaction in which Respondent John Parks was the listing and selling salesman and Respondent Hurbanis was the office manager with the same real estate firm. Allegedly, Respondent Hurbanis directed and approved Respondent Parks' preparation of two sales contracts on or about December 16, 1982, calling for the purchase and sale of certain real estate by Mike Volker from Dr. Robert Pascotto and Gaspar Turanna. Both contracts were similar and pertained to the same parcel of property, but one reflected an actual sales price of $149,000, whereas the allegedly bogus, second contract reflected a total sales price of $157,000. It is thus alleged that these two Respondents conspired with the purchasers and sellers to enter into the higher priced, bogus contract for the purpose of obtaining a mortgage loan commitment principal amount at a greater percentage of the sales price than could have been obtained if the actual sales price had been disclosed to the lender. It is alleged that these two Respondents submitted the bogus contract reflecting the $157,000 false sales price together with loan application documents to First Federal Savings and Loan Association of Fort Myers without informing that institution that the actual sales price was $149,000. No competent, substantial evidence was offered, however, to show that Respondent Parks was anything other than the listing salesman. It was not established that he drafted the contract nor that he submitted either contract to the lender. Concerning Respondent Hurbanis, although it was shown that he was the office manager at the time of the incident, it was not established that he directed or approved the drafting of either contract, directed or approved the submission of either contract to the named lender nor that he was involved in the negotiation or closing stage of the transaction in any way. In fact, although the two contracts show differing purchase prices, neither contract depicts any different amount to come from mortgage financing by First Federal. In fact, both contracts reflect that a mortgage would be obtained from First Federal in the amount of $125,600. Nothing any different was disclosed to First Federal. The difference comes in a differing deposit amount held in escrow by VIP Realty Group, Inc., according to the terms of the contract. One contract, that with the lower purchase price, reflects $7,000 in deposit money toward the purchase and the second contract reflects $15,000 deposit money held toward the purchase. This accounts for the $8,000 difference in the amount of the two contracts, but, in any event, the amount to be obtained by mortgage funds from First Federal was the same on each contract. There was no evidence to prove that the deposit amounts depicted on either contract were bogus or other than the result of bona fide arm's length negotiations between the parties. In any event, there was no evidence that First Federal or its lending officers were not aware of any of the particulars in the transaction. There was no showing that that the lender relied on either contract to its detriment. Count III Respondent Pauline Seely, as listing salesman and owner of certain real property, with former Respondent (since dismissed) James O'Neill as selling salesman, and allegedly with Respondent Charles Hurbanis' direction and approval, prepared and obtained execution of two sales contracts on or about December 30, 1982, for the purchase and sale of her real property by Thomas and Sheila Floyd. Both contracts were substantially similar and pertained to the same parcel, but one contract reflected an actual earnest money deposit of $8,660 and a purchase money mortgage in the amount of $24,000, whereas the supposed bogus, second contract reflected a total earnest money deposit of $14,000 and a purchase money mortgage in the principal amount of $18,660. It is alleged that the Respondents then submitted this to the lending institution for the purpose of obtaining a greater percentage of the sales price in mortgage funds than could have been obtained had the actual sales price, terms and conditions been revealed to the lender. In fact, testimony of record and Respondent Seely's Exhibit 2 reveals that the lender was furnished all documents with regard to this transaction which revealed to the lender, as the loan officer involved stated in the letter constituting this exhibit, that the buyers and the seller had agreed that the seller would take back a second mortgage in the amount of $24,000 and that a contract addendum existed (which is in evidence) reflecting this second agreement. Thus, AmeriFirst, the lender, did in fact have a copy of the agreement stating that the seller would hold the second mortgage for the above amount and that AmeriFirst was aware of all details concerning the transaction. In point of fact, both contracts in evidence, one of which reflects a purchase money mortgage of $18,660 which the seller would hold and which reflects that $7,000 would be paid in cash to the seller at the time of contracting, and the second contract, are identical as to purchase price. The second contract also shows a purchase price of $125,000, the difference being essentially that the second contract shows the $24,000 purchase money mortgage amount instead of the figure of $18,660 shown on the first contract. Both contracts merely call for assumption of a mortgage already made in favor of AmeriFirst in the amount of $92,340. There is no evidence that any additional funds are being sought from AmeriFirst at all. There was no evidence that any action by the Respondents would result in any impairment of the security of AmeriFirst's first mortgage lien on the premises. The purchase money mortgage referenced in the testimony and evidence, regardless of its ultimate amount as that relates to the manner in which the total purchase price would be paid the seller, would, in all events, be a subordinate mortgage lien and it is difficult to see how AmeriFirst could rely on either contract to its detriment, even had it not known of one of the contracts. They both represented a purchase price of $125,000 and merely varied as to ways the purchase price would be paid, over and above the $92,340 outstanding first mortgage loan (which was to be assumed). In all events, however, AmeriFirst and its lending officer was fully aware of all details of this transaction and had no objection to the manner in which the transaction was to be closed and disbursements made, nor to the conditions of the assumption of its mortgage. The so called "double contract" that Ms. Seely is alleged to have entered into was shown thus to be an innocent modification of terms of the original sales contract. No wrongdoing or concealment was shown to have been committed by Respondent or any person who participated in the sale of Pauline Seely's property to Thomas and Sheila Floyd. Count V Concerning Count V, it is alleged that Respondents Seely, Parks and Hurbanis obtained two sales contracts on or about January 24, 1983, for the purchase and sale of certain real property by Computer Maintenance Corporation, purchaser, from James and Loretta Cottrell as sellers. Both contracts pertain to the same piece of real property. Both contracts showed a "purchase price" item of $310,000. One contract, however, actually reflected a total price of $344,000, arrived at by combining a $279,000 "90 percent mortgage loan" with a $60,000 purchase money mortgage and a $5,000 cash deposit. This contract contains a notation at the bottom that the "seller agrees that a separate contract for purchase will be given to the Savings and Loan for loan approval." The other contract related to this sale lists a total purchase price of $310,000 only, with a $5,000 deposit noted with no purchase money mortgage being shown, rather there is shown, in addition to the $279,000 90 percent mortgage loan, a balance of $26,000 cash being paid to the seller. This contractual situation is somewhat mysterious and it may indeed be that an attempt was made to conceal the $60,000 purchase money mortgage on the first contract and make it appear to the lender that the purchaser was actually putting up an additional $26,000 in cash at the closing as an inducement to obtain the principal first mortgage of $279,000 from Naples Federal Savings and Loan, AmeriFirst or some other lender. In point of fact, however, the witness, Ms. Heavener, from AmeriFirst indicated that the bank did not act upon the advice contained on the face of the contract, but rather loaned a percentage of their own independent appraisal value and thus did not act to its detriment upon any information contained on the face of either contract. She indicated that that lender was fully informed about all aspects of this transaction in any event. The evidence does not reflect that Mr. Hurbanis nor Ms. Seely had any part in drafting the contract nor presenting it to the lender. Seely's only involvement was as listing agent, that is, the realtor who obtained the listing from the sellers. There is no evidence to indicate that she participated in any fashion in the sale of the property, the negotiations, nor the drafting or presenting of the contracts. No evidence was offered to show for what purpose, whether illicit or innocent, the two different contracts were drafted. In any event, Ms. Seely was not involved in the preparation of the contracts. Mr. Hurbanis was not connected by any competent, substantial evidence, with any activity concerning the drafting of the contracts nor the presenting of them to the lender. A representative of the lending institution testified that she did not recall any discussions at all with Mr. Hurbanis concerning this transaction and upon cross-examination clearly indicated that the lending institution had protected itself against a "double contract" situation by reliance upon its own independent appraisal in making its lending decision, rather than the contract or contracts themselves. Count VI In this count, it is alleged that Hurbanis obtained a sales contract on January 22, 1983, between T N T Partners, a general partnership as seller and Christopher Smith as purchaser. The pertinent terms of the sale were $30,000 total purchase price, $3,000 deposit and $4,500 cash to be allegedly furnished at closing, together with a $22,500 new note and mortgage on the property. It is alleged, in essence, that Respondent Hurbanis falsely represented to Naples Federal Savings and Loan Association that the purchaser would pay $4,500 cash at closing. The transaction closed on April 15, 1983, but instead of the cash, the seller took back a purchase money mortgage in the amount of $4,500. Thus, the issue here is whether the $4,500 mortgage was properly disclosed to the lender. The evidence is silent as to any connection of Mr. Hurbanis with this transaction. In any event, however, it would appear from the face of the contract itself that the lending institution could not have been deceived by the parties to the contract nor any realtor involved, since the contract itself does not require cash in the amount of $4,500 but rather requires "cash or equivalent at closing." Thus, even if there had been a participation by Respondent Hurbanis in this transaction, which was not proven, it is impossible to detect any concealment or deception since the words "or equivalent" would clearly not preclude the use of a purchase money mortgage in the amount of $4,500 as consideration for this portion of the purchase price, rather than actual cash. Indeed, any other thing of equivalent value could have been used as consideration in this particular without violating the terms of the contract, of which the lender clearly had notice.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the evidence of record, it is, therefore RECOMMENDED that the Administrative Complaint be dismissed in its entirety as to all Respondents. DONE and ORDERED this 7th day of October, 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 7th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0140 Petitioner: Petitioner filed no Proposed Findings of Fact and Conclusions of Law. Respondent Hurbanis: The Proposed Findings of Fact by Respondent Hurbanis are subsumed in those made in this Recommended Order to the extent that that Respondent's submissions constitute bona fide Proposed Findings of Fact. In the main, the "Findings of Fact" in the Post-Hearing Submission by this Respondent constitute largely recitations of evidence and testimony, discussion of the weight thereof, inextricably intermingled with Proposed Findings of Fact which cannot be separately ruled upon because of multiple factual findings, legal argument and evidence discussion intertwined in the same paragraph. Respondents Maxwell's and Seely's Proposed Findings of Fact: 1-12. Accepted. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 John P. Milligan, Jr., Esquire Suite 201, Royal Palm Square 1400 Colonial Boulevard Fort Myers, Florida 33907 Kenneth G. Oertel, Esquire Suite C 2700 Blair Stone Road Tallahassee, Florida 32301 Johnny W. Parks c/o The Realty Shoppe of Lee County 12635 Cleveland Avenue Fort Myers, Florida 33907 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue in this case is whether Respondent Southern Corporate Packers, Inc. owes Petitioners money for watermelons and, if so, how much.
Findings Of Fact Prior to the 1995 growing season, Petitioners and Respondent Southern Corporate Packers, Inc. (Respondent) formed a partnership. Their respective interests were Respondent--40 percent, Petitioner Juman--38 percent, and Petitioner Carter--22 percent. Petitioners agreed to grow the watermelons, and Respondent agreed to sell them and remit the sale proceeds to the partnership after deduction for a standard one cent sales commission and freight costs. Petitioner Juman agreed to contribute farming equipment to the partnership. Petitioner Carter agreed to contribute $10,000 cash, and Respondent agreed to contribute $25,000. Petitioner Juman and Respondent made their respective contributions of equipment and money, but Petitioner Carter may not have made his contribution of money. In any event, the actual contributions were insufficient. The agreement required each partner to advance any additional expenses based on his respective share in the partnership. Petitioner Juman and Respondent made additional contributions of equipment and cash, but Petitioner Carter did not, unless his contribution could be made in services, which the evidence does not address. Problems plagued the farming operation from the start. Petitioners planted crimson sweet watermelons because Petitioner Carter could acquire these seeds inexpensively. Such watermelons are less valuable than the more- marketable sangria watermelons. The watermelons grew poorly. Petitioners failed to produce a single load of large melons. Instead, they produced twelve loads of mediums and nine loads of peewees, for which demand is relatively slight. As agreed, Respondent transported the watermelons to distant markets for sale. Unable to demand market prices, Respondent sold the melons for the highest possible price. In 21 transactions Respondent realized gross proceeds of $59,184.55. The parties dispute the available price for the watermelons. Respondent failed to obtain inspections of the melons, as it was required to do. Despite this failure, Respondent has shown that it obtained the highest available prices for the melons. In transporting the melons Respondent incurred freight charges of $22,288.76 and earned sales commissions of $6780.75. Additionally, Respondent paid an additional partnership expense of $11,799.53 in harvesting costs, which were not its obligation under the partnership agreement. Thus, the total allowable reductions are $40,880.94, leaving Responsible liable to pay the partnership the remaining $18,303.61. A partnership accounting might identify additional setoffs and counterclaims available to Respondent against the partnership or one or both of the partners. However, the record does not permit such an accounting, even if the law were to provide for such a remedy in this administrative proceeding. The central facts are that Respondent acquired watermelons from the partnership, sold the melons on behalf of the partnership, properly deducted from the sales proceeds certain allowable expenses in the form of freight, sales commissions, and harvesting expenses, and improperly retained the remaining $18,303.61 that it should have paid to the partnership. Less Respondent's share of 40 percent of the net proceeds, which Respondent may properly retain, the final balance due at this time to the two partners is $10,982.17.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order requiring Respondent to pay Petitioners $10,982.17 within 10 days of the final order and, absent such a payment, requiring Amwest Surety Insurance Company, after notice of nonpayment, to pay the same amount to Petitioners up to the total amount remaining under the bond. ENTERED on December 20, 1995, in Tallahassee, Florida. ROBERT E. MEALE, 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 20th day of December, 1995. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Ronald W. Carter Roshan Juman 321 7th St. LaBelle, FL 33935 Bryan Arrigo, President Southern Corporate Packers, Inc. 424 New Market Rd. Immokalee, FL 33934 Amwest Surety Insurance Co. Legal Department Box 4500 Woodland Hills, CA 91365-4500
