The Issue The issue for determination is whether Respondent terminated Petitioner's employment on the basis of Petitioner's age and sex.
Findings Of Fact Petitioner is Lutye T. Willis. She is white and over 40 years of age. She was employed by Respondent from July 21, 1987, until December 30, 1988. Respondent in this matter is Crystal Brands, Inc., successor-in- interest to Hunter Haig, Inc., a subsidiary of Palm Beach Incorporated. Respondent operated a number of retail clothing outlets throughout the country at all times pertinent to these proceedings. Respondent opened a new Evan Picone Factory Outlet store in the vicinity of Lake City, Florida, in July of 1988. In conjunction with opening the new store, Herman Davis, Jack Williams and Steve Anderson, representatives of Respondent and acting as a group, conducted interviews of applicants for the position of store manager. Petitioner was hired as the manager of the new store, effective July 21, 1988. Petitioner had approximately four years of experience in retail sales, although she had little experience in management or supervision. She was hired in the store manager position at a salary rate of $8.71 per hour for a 40 hour week. Four days later, following conduct of other interviews with prospective applicants, a process in which Petitioner participated along with Davis, Williams and Anderson, an assistant manager for the new store was hired. Williams suggested that Petitioner might want to hire a male to assist in the sale of menswear. Petitioner was happy with the choice of Trevor Hickman for the position. She knew the 22 year old white male and, many years earlier, had been his cub scout teacher. Her testimony to the effect that she was forced to hire a male assistant manageris not credited. In the first few days following their hiring, Hickman and Petitioner were trained jointly by Jack Williams in the store's operations. Williams was not confident that Petitioner possessed adequate abilities and skills with regard to bookkeeping and cash register operation when he left the store three weeks later. He apprised home office personnel that Petitioner might require further assistance in these areas of the store's operation. Subsequent to Williams' departure from the store, Petitioner received additional training and assistance from Tabitha Smith, the female manager of another store owned by Respondent. Smith, manager of Respondent's store located in the neighboring vicinity of Valdosta, Georgia, was also consulted about once a week by Trevor Hickman, regarding reports and other store operations, during the period of Petitioner's employment. While good with customers, Petitioner was not so adept at the administrative tasks of management. She generally delegated the preparation of reports to Hickman, although the reports were the responsibility of the manager and were normally signed by her. However, monthly balance reports, required to be completed by the manager, were not assigned to, or prepared by, Hickman. Those reports were delinquent at the time of Petitioner's termination and were subsequently completed by Hickman. In October of 1988, Dan Hardin became the regional manager for Respondent. His regional supervisory role made him the immediate supervisor of Petitioner. He conducted a review ofthe store managed by Petitioner on October 31 and November 1, 1988. Hardin was disappointed with Petitioner's performance with regard to preparation of monthly balance reports and maintenance of the store's bank deposit log. Petitioner received a "poor" rating from Hardin with regard to these tasks in the review. Hardin explained to Petitioner the importance of telephoning the home office on a daily basis with information concerning the amount of funds deposited by her in the bank each day. In her role as the store manager, Petitioner established the work schedules for herself and Hickman. Sometime in late 1988, she arranged the schedules so that Hickman worked five days in a row from December 22 through December 28, in order that Petitioner might travel to Boston, Massachusetts to spend the Christmas holidays. Hickman was scheduled by Petitioner to be off several days around New Years' weekend and the week before Christmas. Petitioner asked Hickman to cover for her in the event that anyone from the corporate offices inquired about her during her absence. Under the arrangement, Hickman was to telephone Petitioner in Boston, Massachusetts, regarding inquiries from the corporate office. However, Hickman was not to tell superiors that Petitioner was in Boston. Hickman was discomfited by Petitioner's arrangements. He knew that Petitioner's plans were contrary tocompany policy and he feared he might be fired if he were viewed as collaborating with Petitioner's scheme. Under Respondent's vacation policy, no employees were permitted a vacation until they completed at least six months of employment. In addition, company policy required approval of managerial vacation by the employee's immediate supervisor and the corporate president, John Lane. Petitioner had not complied with either provision of this policy regarding her planned absence. Hardin normally communicated by telephone on a weekly basis with the store managed by Petitioner. Hardin spoke with Hickman by telephone in the early part of December and learned of the arrangement between Hickman and Petitioner to take time off during the holiday period. Hardin subsequently telephoned the store again and spoke with Petitioner. He asked Petitioner to perform certain tasks during the time period that he now knew she planned to be absent from the store. At that point in the conversation, Petitioner informed Hardin of her intention to go to Boston during the December 22-28 time period. Hardin attempted to dissuade Petitioner from carrying out her plans, pointing out the company vacation policy to Petitioner and the need for John Lane's approval of Petitioner's proposed absence. Hardin further told Petitioner that he could not personally approve Petitioner's request as her supervisor, that he did not believe John Lane would approve such an absence, that shecould not be away from the store that long, and that the period for the proposed absence was one of the busiest times of the year for retail merchandising. Petitioner told Hardin that she still intended to follow through with her holiday travel plans. Following the telephone conversation with Petitioner, Hardin informed Jim Shanis, Respondent's director of stores, of Petitioner's action. Subsequently, after telephoning the store during the period of December 22-28, 1988, and verifying that Petitioner was absent from the store, Hardin decided to terminate Petitioner's employment. Hardin's discharge of Petitioner took place on Friday, December 30, 1988. At that time, he informed Petitioner that her discharge was the result of the unauthorized vacation and her unsatisfactory performance. Hardin's discharge of Petitioner was consistent with Respondent's disciplinary policy which provided for immediate discharge for deliberate disregard of company policy or insubordination. Respondent does not have a work practice prohibiting employment of females in managerial positions. Further, the proof establishes that Respondent had all female management teams at ten of it's 39 stores during the period of Petitioner's employment, as well as individuals in some managerial positions who were over 40 years of age. After terminating Petitioner's employment, Hardin called Hickman to the store and promoted him to the store managerposition with a salary rate of $8.17 per hour, an amount less than that paid to Petitioner. On or about January 20, 1989, Petitioner wrote a letter to the company president, John Lane, complaining that she had not received severance pay. Petitioner did not include within her complaint any allegation that her termination resulted from discrimination on the basis of age or sex.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 21st day of November, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1990 APPENDIX The following constitutes my rulings with regard to proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-3. Rejected, conclusions of law unsupported by weight of the evidence. Adopted by reference. Rejected, not supported by weight of the evidence. First part of this proposed finding is rejected as unnecessary with regard to Petitioner's background. Remainder rejected as unsupported by the weight of the evidence. Rejected, unsupported by the evidence. Rejected, unnecessary. 9.-15. Rejected, not supported by weight of the evidence. Rejected, relevancy. Rejected, not supported by weight of the evidence. Rejected, although a male assistant was suggested to Petitioner because of fitting of male apparel, the weight of the evidence does not support that Petitioner was forced to hire Hickman or that she opposed his hiring. Rejected, hearsay. While Petitioner was granted leave to file the deposition of Herman Davis as a posthearing exhibit, no authority was provided to quote documents not in evidence as a basis for a finding of fact. 20.-21. Rejected, not supported by the evidence. 22. Adopted by reference. 23.-25. Rejected, not supported by weight of the evidence. 26. Rejected as argumentative. Although Hardin remained in the hearing room as Respondent's agency representative, Petitioner was not unfairly prejudiced as a result. Respondent's Proposed Findings 1.-5. Adopted in substance. 6.-10. Adopted by reference. 11.-21. Adopted in substance. 22.-24. Adopted by reference. 25.-41. Adopted in substance. 42. Adopted by reference. 43.-44. Adopted in substance. 45.-49. Rejected, unnecessary to result. COPIES FURNISHED: Dana Baird, Esq. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Lutye Willis P.O. Box 646 Brownsville, Vermont 05037 Edwin J. Turanchik, Esq. 501 East Kennedy Boulevard Suite 1206 Tampa, Florida 33602 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of his national origin.
Findings Of Fact The evidence adduced at final hearing established the facts that follow. In May 1999, Winn-Dixie hired Torres to work as a bagger in one of its grocery stores. Until the event that precipitated his termination in July 2000, Torres’s job performance was generally satisfactory, although he was formally reprimanded at least once, in December 1999, for insubordination. Torres was at work bagging groceries on July 14, 2000. The store was crowded that day, and the lines were long at the cash registers. A customer checking out in one line asked Torres——who was stationed at another lane——to bag his groceries. Torres refused, and the man (according to Torres) called Torres an “asshole.” Torres retorted, “You’re the asshole.” (At hearing, Torres admitted using the epithet in front of “a whole line” of customers but explained——in effect——that, since his antagonist had used the word first, the man had it coming.) Having thus offended one another, the two men——Torres and the customer——engaged in a loud shouting match. The assistant store manager, who was in the parking lot outside when this verbal altercation began, was called inside to restore calm and order. Taking charge, he separated the disputants, apologized to the customer (who was a regular shopper at that store), and sent Torres home to cool off. When Torres reported for work the next day, he was fired. He complained, then as now, that Winn-Dixie’s decision was the result of his Puerto Rican origin. His supervisors, however, claimed——then as now——that the cause of Torres’s firing was his profanity-laced row with a customer, which had occurred in front of other customers. Ultimate Factual Determinations Winn-Dixie fired Torres, not because of his national origin, race, or ethnicity, but because Torres quarreled with a customer——angrily and loudly——before other customers. This is a legitimate reason for a grocery store to discharge a bagger. There is no credible, competent evidence that Winn- Dixie tolerated similar behavior in non-Hispanic (or non-Puerto Rican or non-minority) employees. The evidence does not support a finding that Winn-Dixie feigned disapproval of Torres’s dustup with a shopper as a pretext for discrimination. In short, Winn-Dixie did not discriminate unlawfully against Torres.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Torres’s Petition for Relief. DONE AND ENTERED this 30th day of August, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2002. COPIES FURNISHED: Modesto A. Torres 25302 Southwest 127th Place Miami, Florida 33032 Maria H. Ruiz, Esquire 799 Brickell Plaza, Suite 900 Miami, Florida 33131 Denise Crawford Clerk of the Commission Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was discriminated against by Respondent, based upon her race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American female who was born on June 14, 1956. At the time of the Respondent’s reduction in force in 1998, Petitioner was 41 years old. She is a quiet and reserved person. In 1978, Respondent hired Petitioner as a management trainee. Initially, she was assigned to the J. C. Penney store in Metairie, Louisiana. As a trainee, she worked in the children’s department in that store. Petitioner received several subsequent assignments in the Metairie store, as well as in other stores. She was eventually promoted to the position of senior merchandiser. A senior merchandiser has the same job duties as a merchandiser. The chief differences are that senior merchandisers are paid more and typically receive more difficult and important departments to manage due to a larger sales volume and quickly changing fashion orientation. The men’s and women’s departments in J. C. Penney stores are generally the most challenging, while the children’s and home departments are less challenging since their sales volume is lower and they are less fashion oriented. In late 1992, Petitioner received a transfer to the Pensacola store as the women’s senior merchandiser. In 1992, Don Gray was the Pensacola store manager. In March 1993, Jimmy Graham, an African American, became the assistant store manager/business planning manager in that store. While she was assigned as the women’s merchandiser in the Pensacola store, Petitioner worked very closely with Mr. Graham and had no complaints about Mr. Graham. Petitioner does not allege that Mr. Graham discriminated against her in any way. When Mr. Gray retired in 1994, John Phelps, a Caucasian, became the Pensacola store manager. (He is approximately ten years older than Petitioner.) Prior to his Pensacola assignment, Mr. Phelps had not been in a position to affect Petitioner’s career. At the time that Mr. Phelps moved to the Pensacola store, Respondent had employed Petitioner for approximately 16 years. Ordinarily, a strong merchandiser would be promoted to an assistant store manager assignment (sometimes called a “second level” assignment) after seven to ten years of experience. Petitioner’s failure to be promoted to an assistant store manager assignment in the 16 years prior to her working with Mr. Phelps demonstrates that she was not considered a strong manager by upper level corporate management at J. C. Penney. In the 1990s, Respondent had a numerical management appraisal system. A rating of ‘1’ was the best rating, indicating that the manager’s performance far exceeded the job requirements. A rating of ‘2’ was the next rating, indicating that the manager’s performance exceeded requirements in many key areas of the job. A rating of ‘3’ was the next rating, indicating that the manager’s performance met job requirements in each key area. The rating of ‘3’ was not a disciplinary rating and the employee receiving such a rating was considered to be a very good employee. In fact, Ratings of ‘2’ and ‘3’ were common in J. C. Penney, with the difference sometimes being the strictness of the store manager’s interpretation of the rating criteria. The lowest ratings were ‘4’ and ‘5.’ The evidence showed that Petitioner had more often than not been rated a ‘2’ in the years before she worked with Mr. Phelps. In March 1995, at his first opportunity to appraise Petitioner, Mr. Phelps rated Petitioner a ‘2.’ In that appraisal, which covered 1994, he commended Petitioner for her very strong sales, but indicated that her operation should be more balanced. Examples of this lack of balance were her high shrinkage, high markdowns, and high overstock position. All of these factors were negative performance measurements. Petitioner’s high sales and high markdowns were direct results of her high overstock position, which required that she offer her excess merchandise at very low prices. In the 1994 appraisal, Mr. Phelps also noted that Petitioner’s leadership characteristics needed development. Specifically, Mr. Phelps thought Petitioner needed to be more outgoing, communicate potential problems better with management, and give more feedback in discussions with management. Mr. Graham helped prepare and agreed with Petitioner’s 1994 appraisal. Like Mr. Phelps, Mr. Graham felt “some of [Petitioner’s] people skills lacked,” with her primary weakness in leadership and working with second level managers. He also testified that Petitioner missed deadlines and that her sales results were “average since they were in line with the results in other store departments.” In short, Petitioner sales results were good when the whole store had good sales results. For 1995, Petitioner was rated a ‘3.’ Petitioner’s rating was based upon the fact that she missed her sales goal, her investment goal, and her leadership development goals. Petitioner was again rated as needing development in the leadership category. Again, Mr. Graham helped prepare and agreed with Petitioner’s 1995 appraisal. Prior to 1996, even though Petitioner’s department ranked in the top three in sales, the women’s department had a lower percentage of the total store’s sales than Respondent’s company-wide business model anticipated. This lower percentage indicated that Petitioner was not generating as many sales in the women’s department as the department should generate, if managed well. Therefore in June 1996, due to these performance issues, Petitioner was moved from the women’s department to the children’s department because it was an easier department to manage. Ms. Thomas experienced no loss in pay or other benefits due to this lessened responsibility. When Petitioner began to manage the children’s department in Pensacola, she also began to work more closely with the store’s other Assistant Store Manager, Joseph Waslo, a Caucasian male. Petitioner had no complaints about Mr. Waslo. Petitioner does not allege that Mr. Waslo discriminated against her in any way. Petitioner was rated a ‘3’ on her 1996 and 1997 appraisals. The wording on these appraisals reflect that Petitioner had made some improvement in her job performance. The improvement was due in part due to the fact that she was handling an easier job assignment. Mr. Waslo helped prepare and agreed with each of these appraisals. In 1997, Merchandiser Jerry Joachim, a Caucasian male, experienced significant performance issues. Mr. Phelps counseled Mr. Joachim on several occasions. Mr. Phelps lowered Mr. Joachim’s appraisal rating to a ‘3’ for 1997. Petitioner did not have to require such counseling from Mr. Phelps. The evidence was clear that neither Petitioner’s nor Mr. Joachim’s appraisals were based on any foreknowledge of a future reduction in force by Respondent because such a reduction was unknown at the time of these appraisals. The evidence was also clear that Petitioner’s race, age, or sex played a role in the ratings and evaluations. In February 1998, Debra Kellum, a Caucasian female, became the district personnel manager for the district in which the Pensacola store is located. When she attained this position, she was informed that Respondent was going to conduct a company-wide, reduction in force, unfortunately affecting a portion of its merchandisers. This action was necessary to reduce costs and assist the company in its efforts to transfer certain job functions like inventory selection from the stores to a centralized location. As the district personnel manager, Ms. Kellum was given detailed instructions regarding how to rank the merchandisers in her district. These instructions did not permit any variance or independent judgment. According to the instructions that Ms. Kellum (and Respondent’s other district personnel managers) received, she was to review the last three annual appraisals for all merchandisers (including senior merchandisers) in her district. Those who had most recently been rated a ‘1’ were ranked first. Next were those who had most recently been rated a ‘2.’ Among the merchandisers most recently rated a ‘3’ Ms. Kellum was instructed to examine their appraisals in the two previous years. Those who had been rated a ‘1’ or ‘2’ in those years were ranked before those who had been rated a ‘3’ all three years. Those merchandisers who had been most recently rated a ‘4’ or ‘5’ were ranked last. Neither race, age, nor sex was a factor in the ranking or the reduction-in-force process. The goal and the effect of the policy was to retain a certain number of the most recently highest ranked merchandisers and lay-off the remainder, even if a particular employee had good ratings. Ms. Kellum followed these instructions and ranked the approximately 100 merchandisers in her district of 20 to 24 stores. After she had completed the ranking, both her District Manager Michael Tucker and a regional manager checked her results for accuracy. Because the new staffing plan provided for fewer merchandisers in the district than the district currently had, those who were ranked highly on the list were retained while those near the bottom of the list were given a severance package and were terminated. Because many merchandisers in the district had been rated a ‘3’ for all three years, no merchandisers employed in this district who had been rated a ‘3’ for all three years were retained. In fact, the reduction in force caused some merchandisers who were currently rated a ‘3’ but had been rated a ‘2’ in the last three years to be terminated. Because Petitioner had been rated a ‘3’ for the last three years, and therefore, was scheduled to be terminated with a severance package, she was subject to the reduction in force. Even if all the other three merchandisers in the Pensacola store had been terminated, Petitioner still would have been subject to the termination because the reduction-in-force process considered all merchandisers in the district as one group, and Petitioner was being assessed against both her co-workers in the Pensacola store and merchandisers in other stores in her district. Some men, Caucasians, and managers under 40 years of age who were in Petitioner’s district were terminated. An example of a young Caucasian male who was terminated was Keith Graber, a Caucasian male aged 33. Mr. Graber had most recently been rated a ‘3’ and had been rated both a ‘2’ and a ‘3’ in the prior two years. Some women, African Americans, and managers over the age of 40 who were in Petitioner’s district were retained. For example, William Turner, an African-American male aged 42; Ronnie Harris, an African-American male aged 46; Robert Butler, an African-American male aged 40; Clarence Cook, an African- American male aged 48; and Brenda Eccles, an African-American female aged 45, were retained. There was no evidence that the reduction-in-force procedures were in any way discriminatory or that the reduction- in-force procedures were not consistently followed in Petitioner’s district or applied incorrectly to her. No one in the Pensacola store, including Mr. Phelps, had any input regarding the need for or scope of the reduction in force or the procedures to be followed in conducting it. No one in the Pensacola store, including Mr. Phelps, knew who would be affected by the reduction in force until the morning of March 20, 1998. On March 20, 1998, District Manager Michael Tucker and Ms. Kellum informed Petitioner that she was scheduled to be terminated and that her last working day would be May 2, 1998. Petitioner did in fact work until May 2, 1998. She received $8,696.92 in severance pay. Fellow Pensacola merchandisers Jerry Joachim, Kimberly Vincent (a Caucasian female), and Glenn Castellucci (a Caucasian male) were not subject to the reduction in force because each had been rated a ‘2’ on at least one of the last three appraisals. The appraisals and ratings for each of these individuals were supported by appropriate rationales and were not the result of any discrimination. When Mr. Phelps learned that Petitioner would be terminated and that Mr. Joachim would not be, Mr. Phelps told Mr. Tucker he would prefer for Petitioner to be retained instead of Mr. Joachim. Ironically, the only person Petitioner accused of discriminating against her was Mr. Phelps. However, Mr. Phelps’ desire to retain Petitioner over Mr. Joachim was not considered because of management’s desire to consistently apply Respondent’s reduction-in-force criteria. When Mr. Joachim learned that his employment would not be ending, he requested the severance package in exchange for his resignation. Mr. Joachim told Mr. Phelps that he was making this request because he understood that Mr. Phelps was dissatisfied with his work and would be lowering his appraisal ratings and moving towards terminating him. That request was granted. With the departure of Mr. Joachim, the store would have only two merchandisers. The store was approved for three merchandisers. Therefore, through application of the reduction- in-force criteria, another higher-ranked merchandiser was reassigned to the store in order to replace Mr. Joachim. Petitioner’s position was not replaced. Mr. Phelps mentored several managers in the Pensacola store, including Mr. Graham, Chris Jackson (an African-American male), and Ms. Vincent. Mr. Phelps was instrumental in Mr. Graham and Mr. Jackson’s promotions to store manager (in 1997) and sales support manager (in 1996), respectively. Moreover, Mr. Phelps supported Ms. Vincent’s being designated as a “high potential” manager, thus creating additional career opportunities for her. Mr. Phelps consistently rated Mr. Graham and Ms. Vincent as ‘2’s. Mr. Phelps did not mentor Petitioner because she did not seek out his assistance, as the others had, which again was part of the problem in her leadership skills. There was no evidence which showed Mr. Phelps discriminated against Petitioner. In January 2001, Stan Lollar was promoted to senior department manager. At the time of the promotion, Mr. Lollar was 51 years old. The title “senior department manager” is the current title for the merchandiser position. Mr. Phelps recommended Mr. Lollar for the position and was instrumental in Mr. Lollar’s attaining it. At the time that he achieved this position, Mr. Lollar was older than Petitioner was when she was subject to the reduction in force. In 1997, Mr. Phelps promoted Nadine Mitchell from a non-supervisory position in the Pensacola store to a supervisory position. At that time, Ms. Mitchell was an African-American female aged 41. Due to the high attrition rate amongst merchandisers and the year-long training needed before a new hire is ready to perform as a merchandiser, Respondent began to seek applications for management trainees shortly after the reduction in force had been completed. These trainees were needed to assume the positions of retiring, resigning, and promoted merchandisers. Compared to the pre-reduction-in-force time period, Respondent significantly reduced its recruitment efforts because fewer future replacement merchandisers would statistically be needed. The fact that Respondent advertised for new manager trainees after the reduction in force does not demonstrate discrimination by Respondent since there is a legitimate underlying business reason for the continued recruitment. In 2003, Petitioner will earn at least $46,199 at her retail management position with Sports Authority in Pensacola, Florida. Petitioner occupies a more senior position (a second level assignment) at Sports Authority than she did for Respondent. Prior to her employment at Sports Authority, Petitioner had been gainfully employed. No testimony was presented of any periods of unemployment or underemployment. At the time of her reduction in force from Respondent, Petitioner earned $45,224, less than her current income with Sports Authority. On January 23, 2003, FCHR issued its Determination, finding no cause to believe that either sex or age discrimination had occurred, but finding cause to believe that race discrimination had occurred. This determination occurred more than 180 days after the Charge had been filed. On February 24, 2003, Petitioner filed her Petition for Relief. Her Petition was filed more than four years after her employment with Respondent ended on May 2, 1998.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of January, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia Farris-Gruver, Esquire J. C. Penney, Inc. 6501 Legacy Drive, Mail Station 1111 Plano, Texas 75024 Lari Thomas 1055 Wonderwood Court Pensacola, Florida 32514-8512 Anthony Nathan Thomas, Sr. Qualified Representative 1055 Wonderwood Court Pensacola, Florida 32514-8512
The Issue The issues are whether Petitioner timely filed her Petition for Relief, and if so, whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her race.
Findings Of Fact At all times material to this proceeding, Respondent operated a convenience store (the store) in Havana, Florida. In July 1998, Respondent hired Petitioner, a black female, as a midnight shift cashier for the store at $5.50 per hour. Charles Nichols, the store manager, made the decision to hire Petitioner. In addition to Petitioner and the store manager, Respondent employed five or six other cashiers--one American Indian female, one Hispanic male, two white females, and one or two white males. Petitioner was Respondent's only black employee. As part of her work orientation, Mr. Nichols furnished Petitioner with a copy of a cashier's job duties, which she signed and dated July 8, 1998. Mr. Nichols also provided Petitioner with other hiring and orientation information, including but not limited to, an employee handbook explaining Respondent's anti-discrimination policies. Mr. Nichols was responsible for the day-to-day operations at the store. Petitioner admits that Mr. Nichols was the best boss she ever had, at least until September 7, 1998, when Respondent terminated her employment. Shortly after she was hired, Petitioner's payroll check failed to include some overtime work. Mr. Nichols advanced or loaned Petitioner the correct amount out of his own pocket until the mistake could be corrected. On another occasion, Petitioner intentionally left her midnight shift (11:00 p.m. to 7:00 a.m.) two hours early, leaving a new trainee (Jason Smith) in charge of the store. While such conduct was unacceptable, Mr. Nichols decided to counsel Petitioner instead of terminating her. Petitioner complained about working the midnight shift due to her family responsibilities. Mr. Nichols attempted to accommodate Petitioner by scheduling her to work the evening shift (3:00 p.m. to 11:00 p.m.) when possible. Respondent hired Jason Smith to work at the store as a cashier shortly after Petitioner began her employment. In early September 1998, Mr. Nichols and Respondent's regional manager, Clev Mathias, promoted Jason Smith to assistant store manager. An assistant store manager has many of the same day- to-day duties and responsibilities as the store manager. The assistant store manager acts as store manager when the manager is not present. Accordingly, the assistant store manager's duties include being responsible for the entire store operations, supervising employees, and directing the cashiers in the performance of their duties. The assistant manager does not make final decisions related to personnel matters. Instead, an assistant manager may recommend that the store manager take disciplinary action, including termination. Generally, only one employee is on duty during the evening and day shifts at the store. Respondent assigns two employees to work the midnight shift. However, during busy times, like Friday and Saturday nights, Respondent assigns a floor person (which is an additional employee) to the evening shift to assist with some of the cleaning duties. In 1998, Respondent insisted that its employees keep the store clean and presentable to customers. The company's mission statement was "selling fresh products in a clean and bright store." The mission statement meant that the store should sparkle and shine as much possible. In order to ensure compliance with its cleanliness policy, Respondent used mystery shoppers to conduct "Pride Ride" inspections. Employees received awards for clean stores, which usually resulted in better sales. Therefore, it was "imperative" that every employee working on every shift, including the store manager, perform basic cleaning duties. In fact, one of the essential job duties of a cashier was to "maintain the cleanliness and appropriate image of entire store, inside and out." At a minimum, Respondent expected its employees to mop the high traffic areas, keep the food counters and fountains clean and presentable to customers, keep the Parrot Ice machine operational and clean, and keep the cooler stocked and cleaned. These were basic cleaning duties which did not have to be posted on the store's bulletin board as special cleaning duties. If an employee working on one shift failed to perform the basic cleaning duties, the employee on the next shift would have to do the work, creating "double cleaning" duties for the new shift. Employees were not supposed to leave the premises after a shift until the store met the cleanliness standard. The evening shift was generally busier than the midnight shift at the store. The average sales volume for an evening shift was between approximately $300 to $500 per hour. On Sunday nights, the average volume would be approximately $200 to $400 per hour. However, during a busy time, the evening shift may have a sales volume of approximately $500 to $700 per hour. On Sunday, September 6, 1998, Petitioner was assigned to work the evening shift for the store. She was the only employee assigned to work that shift. The employees that were assigned to the subsequent midnight shift and who would be relieving Petitioner were Rodney Smith (Jason Smith's father) and Marie Sargent. Rodney Smith usually showed up early for his assigned midnight shift. He arrived at the store at approximately 10:00 p.m. on September 6, 1998, and observed that the store was not clean. As Rodney Smith began filling and cleaning the Parrot Ice machine, he noticed that Petitioner appeared to be socializing with a male at the counter for an extended period of time. Accordingly, Rodney Smith paged the assistant manager, Jason Smith, so that he could see the condition of the store. Jason Smith worked the day shift at the store on September 6, 1998. When he finished his shift and when Petitioner began her shift at 3:00 p.m., the store was clean. Jason Smith remained in the store's office for a while after his shift ended. On two occasions, Jason Smith's use of the office phone caused a delay in Petitioner's ability to operate the credit card machine. The first time, Petitioner stepped to the office door and asked Jason Smith to hang up the phone. The second time, Petitioner yelled from the cash register telling Jason Smith to hang up the phone. Jason Smith agreed but told Petitioner the she should not yell. At approximately 7:30 p.m. on September 6, 1998, Jason Smith's girlfriend picked him up for a date. The store was clean when he left the store. Jason Smith was leaving the home of his girlfriend's parents when he received the page from Rodney Smith at approximately 10:07 p.m. After receiving the page, Jason Smith proceeded immediately to the store. When Jason Smith arrived at the store, he also noticed that Petitioner was behind the counter talking to a male. Jason Smith checked with Rodney Smith to make sure there was no emergency (such as a robbery, fire, etc.) and was told to look at the condition of the store. Jason Smith then proceeded to inspect the convenience store and noticed that the condition of the store was unacceptable. Specifically, Jason Smith noticed the following: That the floor, especially in the high traffic areas, had not been mopped and was very dirty. That the drink fountain had not been cleaned and there was ice on the floor and counter. That the hot dog machine had not been cleaned and the hot dogs that were in the machine had burned. That the Parrot Ice machine was beeping which indicated that it had not been filled with liquid and also, because the machine had been left on, the Parrot Ice liquid had continued to dispense the product onto the machine and then onto the floor. That the cooler had not been stocked. The condition of the store at the time Jason Smith inspected it on the night of September 6, 1998, was in violation of Respondent's policy regarding cleanliness and store image. Jason Smith also noticed that Petitioner continued to lean on the counter talking to the male while he inspected the store. Jason Smith then called Mr. Nichols to let him know about the unacceptable condition of the store. Jason Smith wanted Mr. Nichols's advice as to the appropriate response to the situation. Mr. Nichols instructed Jason Smith to run an X-2 report from the cash register. The purpose of running the X-2 report was to determine the volume of sales for the store in the last hour. If the volume of sales was unusually high, it would mean that Petitioner had been too busy with customers to perform the regular shift cleaning duties. A high volume of sales would have explained the unacceptable condition of the store. As instructed by the store manager, Jason Smith ran the X-2 report which indicated that the store had only $50 of sales during the last hour on the evening shift. This small amount of sales during the past hour would not have prevented Petitioner from performing the basic cleaning duties required for that shift. When Jason Smith first attempted to run the X-2 report, Petitioner immediately became belligerent and hostile and was very upset that Jason Smith was trying to run this type of report on the register. She then called Mr. Nichols to complain about the situation. Jason Smith communicated the result of the X-2 report to Mr. Nichols. The store manager then informed Jason Smith that he should instruct Petitioner to perform the basic shift duties necessary to clean the store and to get the store in acceptable condition before she left her shift that night. Based on the instruction from the store manager, Jason Smith gave Petitioner verbal instructions to perform certain basic cleaning duties of a cashier, including filling the Parrot Ice machine and mopping and sweeping the high traffic areas. Since his initial inspection of the store, Jason Smith noticed that beer bottles had spilled and were broken in the cooler which created an additional mess. Therefore, his instruction to Petitioner included stocking and cleaning the cooler. To ensure that there was no confusion about the instructions, Jason Smith provided Petitioner specific written instructions to perform these basic duties. When Petitioner received these verbal and written instructions, she once again became very agitated and belligerent. Petitioner was loud and obnoxious to Jason Smith, using profane language in front of customers and another employee. In response to Petitioner's hostile reaction, Jason Smith confirmed to Petitioner that she would have to perform these basic duties before she left the store that night. Jason Smith left the written instructions in the store's office. On the reverse side of the list, Jason Smith wrote Mr. Nichols a note regarding Petitioner's hostile attitude. Jason Smith then left the store because his presence seemed to aggravate Petitioner. After Jason Smith left the store, Petitioner continued to complain about Jason Smith in front of customers. She wrote Mr. Nichols a note stating that she wanted a transfer to another store because she would not work under Jason Smith anymore. She did not perform the duties that were specifically assigned to her by Jason Smith before she left her shift that night. The next day, on September 7, 1998, Mr. Nichols reviewed the handwritten note from Jason Smith indicating that Petitioner refused to perform the duties. Mr. Nichols also confirmed with Rodney Smith that these events had occurred as described. Mr. Nichols then had a discussion with Jason Smith to determine how to handle the situation with Petitioner. According to Respondent's policy, Petitioner's conduct on September 6, 1998, was such that termination was appropriate. Recognizing that any employee could have a bad day, Mr. Nichols and Jason Smith decided that they wanted to give Petitioner an opportunity to explain her conduct on September 6, 1998. Therefore, Mr. Nichols called Petitioner to come to the store and talk with them about the situation and her conduct on September 6, 1998. Upon arriving at the store to meet with Jason Smith and Mr. Nichols, Petitioner continued to respond in a hostile and belligerent tone. She refused to provide them any explanation for her conduct on September 6, 1998. Specifically, Petitioner did not explain the following: (a) her refusal to perform the assigned duties; (b) her refusal to follow a direct order from the assistant manager; and (c) her belligerent and hostile attitude against the assistant manager in front of customers and other employees. Based on Petitioner's conduct on September 6, 1998, and her further refusal to provide an adequate explanation for her conduct, Jason Smith recommended to Mr. Nichols that Respondent terminate Petitioner. Mr. Nichols agreed with the recommendation, terminating Petitioner's employment based on her insubordination and refusal to perform job duties. Respondent's regional manager approved Mr. Nichols's decision to terminate Petitioner. Mr. Nichols and Jason Smith prepared and signed an employee conference summary report on September 7, 1998. When they presented the report to Petitioner, she refused to sign it. Mr. Nichols also prepared and signed a final personnel action record on September 7, 1998. The personnel action record documents Petitioner's termination effective September 7, 1998, for "insubordination, refused to perform duties."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 19th day of September, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. Steven Carter, Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2002. Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Georgia A. Miller Post Office Box 156 Calvary, Georgia 39829 Cecil Howard, Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 26, 2000.
Findings Of Fact Petitioner first interviewed for the position of Assistant Manager Trainee with Respondent on March 17, 1999. Her first interview was with Traci Dickerson, Assistant Manager for Operations. Ms. Dickerson was impressed with Petitioner's presentation and recommended that she be interviewed a second time by Mitchell Day, District Manager. After the interview, Petitioner was offered a position as Assistant Manager Trainee to begin work at Wal-Mart Super Center on Apalachee Parkway in Tallahassee, Florida, on May 10, 1999. The Assistant Manager training program is a seventeen- week program conducted at selected Wal-Mart stores throughout the country. The Wal-Mart store in question in the present case is one of just a few stores in Florida that were utilized for this training program. Ms. Dickerson was the person responsible for administering the program in the store in question during the relevant time frame. Another Assistant Manager Trainee, Sean Mitchell, began the training program on the same date as Petitioner. Mark Whitmore, another Assistant Manager Trainee, began the training program sometime prior to Petitioner. Mr. Whitmore was a long- time employee of Wal-Mart who transferred from management in the home office into the retail sales side of the business. Because of his prior experience with Wal-Mart, his training program was handled differently from the training administered to Petitioner in that it was accelerated. Mr. Mitchell's training was the same type as Petitioner's although each trainee may have been given various assignments on different days and in different sequence. Sometime during the training process, certain members of management with Respondent became concerned about Petitioner's attitude toward the training program, her willingness to take constructive criticism, and her communication/people skills. Sometime around the second week of Petitioner's employment with Respondent, she was observed by Assistant Manager Wendy Rhodes, to be engaged in a conversation with Sean Mitchell during working hours. It appeared to Ms. Rhodes that the two individuals were socializing rather than working. Mr. Rhodes approached the two and instructed them to begin the workday. Later, Ms. Dickerson, in her role as the Program Supervisor, provided constructive criticism to Petitioner that she should concentrate on her work and not socialize during work hours. On or about May 29, 1999, while Petitioner was working in lay-away, she was asked to come to the front of the store to assist Brenda Meyers, a front-end manager, because of an increase of customers at the various cash registers. As an Assistant Manager Trainee, Petitioner was expected to "pitch in" and assist throughout the store where needed. Petitioner responded to Ms. Meyers' request by indicating that she was intending to go on her break and refused to come and assist at that time. Because of Petitioner's refusal, George Wilkins (a co-manager and directly below the store manager in the chain of command of the store) took a turn working at a cash register. Every manager at Wal-Mart is expected to be a team player and assist when the need arises. Mr. Wilkins arranged to meet with Petitioner to discuss the incident and general concerns he had as result of feedback he received from other members of management about her unwillingness to do certain tasks, and to give counseling advice on how to conduct herself as an Assistant Manager. Petitioner immediately became defensive and asserted that because she had a bachelor's degree, she did not have to "take this." Mr. Wilkins attempted to explain to Petitioner that her degree was important, but her attitude toward her work and her willingness to do her fair share were more important. Petitioner was not receptive to Mr. Wilkins' efforts to provide constructive criticism. Sometime in late-July 1999, Petitioner traveled with Mike Odum, an Assistant Manager and Lisa Green, who at the time was Personnel Manager at the store in question, to Georgia to attend a new store opening. On the return trip, Petitioner became upset because she was concerned that the group would not return to Tallahassee in time for her to pick up her child from daycare. She confronted Mr. Odum, very upset about the possibility of returning to Tallahassee after 5:00 p.m. However, he returned to Tallahassee prior to the time that Petitioner needed to be back in Tallahassee. On or about August 20, 1999, Petitioner was assigned to the 2:00 p.m. to 11:00 p.m. shift to assist the Customer Service Manager (CSM) in closing the store. The function of the "closing CSM" is important, and Petitioner was needed to assist in that regard. Because the store manager and other members of management were out of town at a meeting, Mr. Odum was in charge of the store. Instead of coming in at 2:00 p.m., Petitioner arrived at the store at 9:00 a.m. She clocked in on the time clock and proceeded to the break room where she warmed her meal and sat down to eat. After she completed her meal, she proceeded to the front of the store to assist the Customer Service Manager. Not long after Petitioner arrived at the store and assumed her position, she was called to the Manager's office to discuss her work schedule for the day. At that time, Mike Odum and Traci Dickerson (Ms. Dickerson participated by phone) reminded Petitioner that her scheduled shift was from 2:00 p.m. to 11:00 p.m. The importance of this was that if she had worked too many hours without prior approval, she would have been in an unauthorized overtime situation. Additionally, it is important to have a "closing CSM" at the appropriate time. Petitioner left work to return in the afternoon as originally scheduled. Petitioner returned to work in the afternoon. She reported to the front temporarily but became frustrated with one of the assistant managers. Feeling that what she was doing was a waste of time, she proceeded to the training room where she reviewed her training materials. She was paged to the front of the store on numerous occasions but did not respond to the calls. Mike Odum went to the training room and told Petitioner to come to the front of the store to assist. Petitioner refused and stated that she would remain in the back of the store and continue reading her manual. When Petitioner refused, Mr. Odum instructed Petitioner to clock out and to come back when the District Manager would be available for a conference. Petitioner left the store shortly thereafter. Petitioner arranged to meet with Mitchell Day, the District Manager who oversees nine stores and approximately 4,800 employees, on August 25, 1999. Mr. Day understood the meeting to be for the purpose of resolving concerns about the issues involving Petitioner and giving Petitioner an opportunity to express her concerns. Management saw this meeting as an opportunity to "get everything out on the table" so that Petitioner could continue with her training program. Accordingly, Mr. Day scheduled the meeting with Todd Peterson, Store Manager; Mike Odum; George Wilkins and Traci Dickerson. All of these individuals expressed concern about Petitioner's performance, her attitude toward the training program, her willingness to accept constructive criticism, as well as their willingness to assist her in completing the training program. There is no evidence that Mr. Day or any other member of management intended that the meeting be conducted for the purpose of terminating Petitioner. Petitioner entered the room and walked past other members of management and approached Mr. Day in a confrontational manner. She was upset at the presence of the various members of management. Despite being asked to be seated, she refused to sit down and begin the meeting. Every participant in the meeting who testified at hearing gave consistent testimony that she raised her voice to an inappropriate level, was hostile and explosive. All recalled her using profanity, with the exception of Mr. Day who did not specifically recall her use of profanity. Every person in the room was stunned at her demeanor, in particular that it was addressed to an upper level management person. Based upon the unprofessionalism of this outburst, Mr. Day advised her that her employment was terminated. The formal reason given for her termination was insubordination. There is nothing in the evidence presented at final hearing to indicate that any of the actions taken by Respondent or members of Respondent's management were based on Petitioner's gender or on any other form of discrimination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission for Human Relations enter a final order denying and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2001.
The Issue Whether the Petitioner has been subjected to employment discrimination by termination, allegedly based upon race, and by retaliation, for filing a charge of discrimination.
Findings Of Fact On or about November 29, 2005, the Petitioner applied for a job as a part-time sales clerk with the Respondent. The Petitioner indicated that she was available to work on Sundays, Mondays, and Wednesdays from 7:00 a.m. to 5:00 p.m. This was because she was already employed in another job. During the course of the hiring and orientation process, the Petitioner learned of the policies of the Respondent against harassment and discrimination of all types. She was instructed in those policies and acknowledged receipt of them. The Petitioner began her employment with the Respondent on December 27, 2005, as a part-time sales clerk at a convenience store (No. 31) in Milton, Florida. When she began her employment, the Store Manager was Bob Kukuk. The Assistant Managers for that store were Michael Morris and "Cynthia." There were also two other sales clerks, Cherie Dorey and Lugenia Word. Both Ms. Dorey and Ms. Word are white. Soon after the Petitioner was hired, Mr. Kukuk announced his resignation as store manager. On January 31, 2006, the Petitioner attended the new employee training session in Milton, Florida, which included training in the equal employment and non-harassment policies of the Respondent. During the question and answer session, concerning the harassment and discrimination portion of the training, the Petitioner told Training Manager, Robert Birks that she had a problem at her store involving a conflict with another employee. She felt that she was being required to do things that other employees were not required to do. Mr. Birks advised Ms. Myles that she should provide a written statement concerning her complaints to her supervisor and he provided her with pen, paper, and envelope to do so on the spot. The Petitioner wrote out a note and returned it to Mr. Birks in a sealed envelope and he gave the envelope to the District Advisor, Jamie Galloway on that same date. After reading the Petitioner's note, Ms. Galloway met with Petitioner on that same day to discuss her complaints. The Petitioner informed Ms. Galloway that Michael Morris, an Assistant Manager at her store, was telling employees that he was going to be the new store manager. The Petitioner told Ms. Galloway that she felt Morris did not like her because of her race. Ms. Galloway informed the Petitioner that, in fact, Morris would not be selected as store manager for store No. 31 and that Mr. Kukuk would be replaced with someone else other than Morris. She also informed the Petitioner that the Respondent had a zero tolerance for harassment and discrimination and that if the Petitioner had any problems with Mr. Morris that she should personally contact Ms. Galloway. In her capacity as District Advisor, Ms. Galloway supervised the day-to-day operations of a number of stores. In fact, during the above-referenced time period, Ms. Galloway was supervising her own normal district area, as well as that of another district manager who had resigned. The three sales clerks at store No. 31, Ms. Dorey, Ms. Word, and Ms. Myles were all reprimanded ("written-up") in February 2006, because of their cash registers being "short," or containing insufficient funds at the close of the business day or shift. The Petitioner was also counseled for insubordination on this occasion because she told Ms. Word, in front of customers, that she was not going to take out the trash because Mr. Morris and Ms. Dorey would be into work soon and "they never did anything anyway." Ms. Word confirmed that Ms. Myles had made that statement to the store management. Sometime in February 2006 the Petitioner expressed the desire to transfer to a store on the West side of Pensacola because she was no longer employed in her other job in the Milton area. She therefore wanted to work for Tom Thumb at a location closer to her residence. The Manager, Mr. Kukuk at that time, informed Ms. Galloway of this wish on the part of the Petitioner. Ms. Galloway contacted the District Advisor for the West side of Pensacola, Bill Jordan, to inquire whether any positions were available that would fit the Petitioner's schedule. Ms. Galloway followed up on the question with Mr. Jordan several days later, but Mr. Jordan said that he had no employment positions available at that time. The Petitioner then filed her Charge of Discrimination on February 16, 2006, (her first charge). In her Discrimination Charge the Petitioner maintains that she was constantly "getting written-up" for unnecessary matters by Mr. Morris, the Manager. In fact, however, she was written-up only once while Mr. Morris was the Assistant Manager of the store, as were Ms. Word and Ms. Dorey, the other clerks. Both Ms. Word and Ms. Dorey are white. Patricia Merritt was installed as the new store manager at store No. 31 on February 24, 2006. Ms. Merritt has worked for the Respondent for 17 years as a clerk, assistant manager, and manager. Ms. Merritt had the responsibility of managing the store, ascertaining that all duties involved in store operation were accomplished and supervising and monitoring the performance of other store employees. She imposed discipline, including termination if necessary, and also hired employees. Mr. Morris failed to appear for work, beginning the first week of March 2006. He was terminated from his employment with the Respondent on March 9, 2006. In February or early March, Ms. Merritt informed Ms. Galloway that she had overheard another employee referring to the Petitioner having filed a claim against the Respondent because of Mr. Morris. Prior to that time Ms. Merritt was unaware of any problem between Mr. Morris and the Petitioner. Between the time that Ms. Galloway met with the Petitioner on January 31, 2006, and the time she heard from store manager Merritt that the Petitioner was still having a problem with Morris in late February or early March, the Petitioner had not contacted Ms. Galloway to report any problem. After being advised of the matter by Ms. Merritt, Ms. Galloway advised Ms. Merritt to contact the Petitioner to find out her version of the events which occurred and to offer her a transfer to any one of five stores that Ms. Galloway was responsible for on the East side of Pensacola. Ms. Merritt met with the Petitioner and offered her the transfer opportunity, which the Petitioner refused at that time because she had a mediation pending. When Ms. Merritt began duties as store manager a misunderstanding occurred about the Petitioner's schedule. Ms. Merritt understood, mistakenly, that the Petitioner was available for fewer hours of work than she actually was. This resulted in the Petitioner being scheduled to work fewer hours for two or three weeks. Ms. Merritt was then informed of the Petitioner's actual scheduling availability by someone from the management office. On March 20, 2006, the Human Resource Manager, Sheila Kates, met with the Petitioner. The Petitioner complained about her reduced hours which Ms. Kates discussed with Ms. Merritt. As soon as Ms. Merritt realized that she had misunderstood the Petitioner's hours of availability she increased the Petitioner's hours on the work schedule. The Petitioner agreed that Ms. Merritt had been unaware about any problem between the Petitioner and Mr. Morris, when she reduced the Petitioner's work hours schedule because of her misunderstanding of the Petitioner's availability. Ms. Kates again offered to allow Ms. Myles to transfer to another store if she wished (apparently to help her avoid her apparent conflict with Mr. Morris), but the Petitioner again declined. Ms. Galloway, as part of her duties as District Advisor, conducted store inventory audits. She conducted a store inventory audit for Store No. 31 on May 30, 2006. During that audit she discovered that the store had a significant inventory shortage. Ms. Galloway therefore scheduled a "red flag" meeting the next day with each employee at the store, as well as meeting with them as a group to discuss inventory control. All of the employees at the store were counseled regarding the inventory shortage, including Ms. Myles and Ms. Word. Ms. Word, who is white, was issued a written reprimand on March 24th and April 24th, 2006, because of cash shortages. Ms. Word was subsequently terminated on June 16, 2006, for causing inventory shortages by allowing her friends to come in and take merchandise out of the store without paying for it, as well as for excessive gas "drive offs," or instances where people pumped gas into their vehicles and failed to pay for it. The Petitioner was given a $1.00 per hour raise by Ms. Merritt on or about April 2006. Ms. Merritt also changed the Petitioner from a part-time to a full-time employee in May 2006. This change enabled the Petitioner to become eligible for employee benefits. Ms. Merritt also, however, reprimanded the Petitioner for a cash shortage on July 14, 2006. The Petitioner admitted that her cash register was $48.00 dollars short on that day. The Petitioner complained to Ms. Galloway sometime in July of 2006 that Mr. Morris, the former store manager, and no longer an employee, had been vandalizing her car when he came to the store as a customer. Although these allegations were uncorroborated at that time, Ms. Galloway advised the Petitioner to call the police about the matter and to contact Ms. Kates directly, in the Human Resources office, if there were any more such incidents. The Petitioner filed a retaliation claim against the Respondent on August 7, 2006. Ms. Merritt had been considering the Petitioner for promotion to assistant store manager. The Petitioner completed a background check authorization for that position on September 19, 2006. Mark Slater is a Regional Manager for the Respondent. His duties include supporting the District Advisor's position, which includes recruitment, hiring and training of managers, reviewing sales trends, and reviewing any other financial trends, such as cash shortages, "drive offs" and inventory losses. In mid-October 2006, in the course of a routine review of reports from Store No. 31, Mr. Slater became aware of a possible problem regarding excessive gasoline drive offs, and an unusual purchase-to-sales ratio. Shortly after his review of those reports, Mr. Slater went to Store No. 31 to review the store's electronic journal. The electronic journal contained a record of all the store transactions. In his review of that journal, he focused on "voids," "no sales," and "drive offs," which could explain the irregularities that he had observed in his initial review. In his review of the "voids" at store No. 31 during the period in question, Mr. Slater noted quite a few voids for cigarette cartons, for large amounts, in a very short period of time. Specifically, in the course of seven minutes, he observed voids in the total amount of $406.23. He found this to be highly irregular and suspicious. Mr. Slater also looked at the drive-offs, because he had noticed some trends on that report as well. In reviewing drive-offs, he noticed that the same employee number was involved in both the voids and the drive-off transactions. Mr. Slater noted in his review that one drive-off was held on a void and then brought down as a drive-off, which appeared suspicious to him. Mr. Slater than matched up the electronic journal transactions with the security video tape that corresponded with that journal entry. In observing the video tape, Mr. Slater identified the transaction entered as a drive-off, but saw from the video tape that a customer had in fact come in and paid for the gas in question with cash. When he began his review Mr. Slater did not know which employee had the employee number that was used in association with the voids and the gasoline drive-offs. However, after he had concluded his investigation, he researched that number and found out that it was the number assigned to the Petitioner. Mr. Slater thus knew that the Petitioner had voided the drive- off transaction, as shown in the electronic journal, while the video tape showed that the Petitioner had actually served the customer who, in fact, did not drive-off without paying, but had paid $20.00 in cash for the gasoline in question. When she was asked about the security video showing the Petitioner accepting the $20.00 for the transaction which she had entered as a gas drive-off, the Petitioner responded that she did not recall it. Mr. Slater concluded that the Petitioner had not properly handled the transaction and took his findings to the Human Resources Manager, Sheila Kates. After consulting with Ms. Kates, the decision was made to terminate the Petitioner's employment. Prior to making his investigation and prior to making his conclusions, Mr. Slater was unaware of any issues between the Petitioner and Michael Morris. None of his findings and decisions regarding the situation with the Petitioner's voids and drive-offs had anything to do, in a retaliatory sense, with any issues or complaints the Petitioner might have had against Michael Morris or to the Respondent concerning Michael Morris. After being discharged for related types of conduct, neither Ms. Lugenia Word, who is white, nor the Petitioner, Ms. Myles, are eligible for re-hire by the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the charges of discrimination and retaliation at issue in their entirety. DONE AND ENTERED this 29th day of October, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2007. COPIES FURNISHED: Latarsha Myles 2103 Haynes Street, Apt. C Pensacola, Florida 30326 Cathy M. Stutin, Esquire Fisher & Philips LLP 450 East Las Olas Boulevard, Suite 800 Ft. Lauderdale, Florida 33301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner Edward Lindsey was continuously employed by Respondent White Auto Parts between 1952 and 1989 (37 years). He was 64 years old at the time of his separation from White Auto Parts. White Auto Parts is a family-owned corporation for wholesale and retail auto parts sales. At all times material, it had eight stores and a warehouse operation in and around Gainesville, Florida. Retail sales are made over the respective store counters, and outside salesmen and inside salesmen handle wholesale sales. Inside salesmen stay at a desk in a specific assigned store and conduct most of their sales by telephone. William Thomas Hawkins, M.D., is Chairman of the Board and President of White Auto Parts. Dr. Hawkins is involved in the policy decisions affecting the management of the corporation, but is not generally involved in day-to-day business operations, including personnel matters. However, during substantially the whole of his leadership, Dr. Hawkins has urged day-to-day management personnel to hire college educated persons and/or enthusiastic and aggressive people. Usually, in connection with these urgings, Dr. Hawkins has referred to these recruits as "young," "college-educated," "new blood," or the equivalent. Despite occasional comments on individual employees being "old" or "slow," there is no evidence of a concerted effort by Dr. Hawkins to terminate or force early retirement on all employees 55, 60, or 65, or any other age for any reason, including replacement by younger, aggressive personnel. Petitioner Lindsey was initially employed in the shipping department, then worked at the counter. For the last 25 years he was employed as an outside sales person, a position he truly enjoyed. Petitioner's duties as an outside sales person included calls on independent accounts (garages, car dealers, and persons in the automotive business) to make presentations of stock, as well as to handle refunds and credits on defective returns and cores. He was also expected to develop new accounts. Outside salesmanship involved local travel by company car, getting in and out of the car many times a day, lifting heavy parts, and significant paperwork. By all accounts, it was significantly strenuous, physically. In the early years of his employment as an outside sales person, Petitioner was compensated on a commission basis, but that was gradually changed after Joe Nave became general manager of the company. At all times material, Joe Nave was general manager of White Auto Parts, with responsibility for managing day-to-day operations and for hiring and firing personnel. Seven years before Petitioner's separation, Mr. Nave intended to replace Petitioner with a younger, more aggressive person because of Dr. Hawkins' directions to seek such people out and because he was dissatisfied with Petitioner's sales performance. However, Petitioner improved his performance on the road and complied with Mr. Nave's sales policy, and thereafter Mr. Nave had no further cause to speak on the subject to Petitioner again. The situation at that time had been either based on personality problems between the two men or upon Petitioner's work performance, but not upon Petitioner's age per se, and the problem was cleared up at that time. Approximately one year before his separation, Petitioner was called in and by agreement was put on a straight salary of $370.00 per week. Later, Mr. Nave sought to reduce that amount, but Petitioner refused to accept the reduction. Nothing more was said thereafter about this request of Mr. Nave, and there is no evidence in the record to explain why the request was ever made. On the whole, Petitioner and Joe Nave had a less than cordial business relationship over the whole of their association. Mr. Nave was, by all accounts, a "hyper" or choleric personality with an aggressive, if not downright belligerent, managerial style. Very simply, Mr. Nave wanted to know where all his employees were all the time, and he yelled and "cussed" a lot over every little thing. Petitioner found his superior's use of swear words particularly unappealing and inferred that the cussing was directed at him, even if Mr. Nave actually intended it toward other persons or inanimate objects. On September 6, 1989, Petitioner had surgery for prostate cancer. He was hospitalized for approximately ten days. Petitioner received a call from Mr. Nave after he got out of the hospital. At that time, Mr. Nave told Petitioner that his vacation and sick leave had been used up and his paychecks would stop, according to company policy. Petitioner knew that company policy was exactly what Mr. Nave had represented, but he anticipated trouble which was never threatened. Petitioner thought: So then I got to thinking, once before Mr. Nave had asked me, when I was sick prior years back from that, now, this was a different time . . . and he wanted to know if the doctor released me, and I said, "No sir. He will not release me for another week." And he went out of the office saying, well, he's going to get him another guy to replace me then, which it didn't take place, of course. So then I got to thinking about this thing. He called me, reminding me about my vacation time, and I guess at that time I was thinking, well, maybe he's going to pull one and replace me, so -- (TR-16) Petitioner returned to work on Monday in the second week of October 1989. At the time, he was still wearing a catheter and two drain tubes in each side. Despite Petitioner's suspicions and despite Mr. Nave's phone call, the Respondent employer kept Petitioner on at full salary until he came back to work. After being at work one week, Petitioner felt he had "over done it." On the following Monday, he told Joe Nave that he was going to try to work a few more days, but then might need some more time to recuperate. The following Thursday, Petitioner attempted to speak with Mr. Nave regarding feeling too ill to continue any further that day, but was unable to do so because when Petitioner finished his paperwork, Mr. Nave had already left. Petitioner left the keys to the company car on Mr. Nave's desk and told Arnold Reed, the purchasing agent, that he was going to have to go home. Mr. Reed noticed that Petitioner was not looking well and offered to take him home, but Petitioner called his wife, who came and got him. On Friday, Petitioner did not report for work or call in to Respondent. That day, he traveled to South Carolina with his son-in-law. Petitioner did not return to work the next Monday. That day, Arnold Reed told Joe Nave that Petitioner had had to go home Thursday. After Mr. Nave expressed his shock that Petitioner had not talked to him personally, Mr. Reed explained to Mr. Nave that it was obvious that Petitioner had been ill. Respondent presented no proof that it had a published personnel policy requiring Petitioner to remain on the premises, despite the circumstances, until he could be excused by Mr. Nave personally. That same Monday, Joe Nave called Petitioner's home and left word for Petitioner to return his call. Several days later, Petitioner's wife, Jean Lindsey, contacted Joe Nave to explain Petitioner's reasons for his absence. The tone and content of their conversation are disputed. Among other matters, Mrs. Lindsey testified that Mr. Nave informed her that Petitioner no longer had a job at White Auto Parts and was verbally abusive about Petitioner's absence and trip to South Carolina. Mr. Nave testified that he did not terminate Petitioner but only reiterated that Mrs. Lindsey should have Petitioner see Mr. Nave as soon as he returned home. Despite the foregoing contradictions, the two witnesses concur that Mr. Nave did, in fact, also tell Mrs. Lindsey that he had already given the company car and the accounts assigned to Petitioner to someone else. It was from this comment, made in the "heat of battle" as it were, that Mrs. Lindsey reasonably inferred that Mr. Nave had hired a replacement for, or had transferred another employee into, Petitioner's outside salesman position. 1/ However, somewhat contradictorily, Mrs. Lindsey also testified that although Mr. Nave had stated that Petitioner could come in and work on a part-time basis, she still concluded that Petitioner had been fired outright. Visibly upset, she exited the store where she had spoken on the telephone with Mr. Nave and told Howard Newsome, a long time employee, that Mr. Nave had fired Petitioner. As a result of her contact with Mr. Nave, Mrs. Lindsey called Dr. Hawkins, president of the corporation, to discuss Petitioner's job. She advised Dr. Hawkins during their telephone conversation that Petitioner was very ill, that he had not done well post-surgery, that he needed time off, that he had left the previous week to go to South Carolina to rest and recuperate, that previously he had come back to work with a catheter and two drains in him, and that he just was not up to coming back to work. She also told him Petitioner had been discharged for not coming to work. At that point, Dr. Hawkins directed Mrs. Lindsey to have Petitioner contact him upon his return so that a meeting could be set up to hear both sides and work out the situation. Upon returning from South Carolina on Saturday, Petitioner was informed by his wife that he had been fired from his job at White Auto Parts by Joe Nave, but she also told him about Dr. Hawkins' message. Petitioner phoned Dr. Hawkins as requested who offered to "iron things out." Dr. Hawkins set up a meeting among himself, Joe Nave, Petitioner Lindsey, and Mrs. Lindsey. At the meeting, Dr. Hawkins assumed Petitioner was still wearing the drain and catheter Mrs. Lindsey had described to him. He did not inquire about them and so he did not know they had been removed sometime before the meeting, which took place on October 31, 1989. The only persons present for the entire meeting were Petitioner, his wife, and Dr. Hawkins. Also present at the beginning of the meeting was Joe Nave, and at the very end of the meeting, Sherry Deist. At the beginning of the meeting, Dr. Hawkins had Petitioner's sales reports in front of him because he and Joe Nave had just gone over Petitioner's entire record and agreed on what they could offer Petitioner to resolve the situation. Dr. Hawkins perceived the situation to be that Petitioner was a long- time employee, not yet released from post-surgery medical care, who had come back to full-time employment too soon to be able to do the strenuous work of full-time outside salesman and who was afraid of losing his job because he had not and could not report in to do it. Petitioner and Mrs. Lindsey perceived the problem as Petitioner already having been unjustly terminated from his outside salesman job and that reinstatement to that position was the only result that would satisfy them. Because the sales reports were in front of Dr. Hawkins at the beginning of their meeting, Petitioner became defensive, since, by his perception, for years he had never been told that his work was unsatisfactory or inadequate nor had he received any documentation to that effect. 2/ Despite obvious biases, Petitioner's description of this part of the meeting is the most credible of the several conflicting versions, and it is found that Dr. Hawkins did make comments about sales being down, about Petitioner slowing down, about Petitioner being unable to continue in outside sales work, and about Petitioner being "burned out" physically. Nonetheless, Dr. Hawkins offered Petitioner the opportunity to return to work at the less strenuous position of inside salesman. 3/ There is conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that Petitioner had never been terminated, but it is most probable from the circumstances that this was never specifically stated. There is also conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that he would pay Petitioner half pay until he could return to work, would pay Petitioner part-time wages for part-time work as an inside salesman until he could work full-time, and would pay Petitioner full-time pay as an inside salesman indefinitely. The evidence is also unclear as to whether or not the inside salesman Petitioner would replace was making $370.00 per week or slightly less. Consequently, it is possible and even reasonable that Petitioner could have inferred from Dr. Hawkins' offer that even as a full-time inside salesman, Petitioner would not make exactly the same pay rate as he had been making as a full-time outside salesman. However, it is clear and undisputed that even if Dr. Hawkins was noncommittal in response to Petitioner's pleas to keep his outside job, Dr. Hawkins did offer Petitioner a less strenuous but substantially comparable inside job, which Petitioner rejected. Petitioner concedes that neither Mr. Nave nor Dr. Hawkins ever stated that he had been or was being terminated. Petitioner's primary reason for rejecting the inside salesman's job was that the desk he would work from as an inside salesman was located in the same office with Joe Nave's desk. Petitioner, his wife, and Joe Nave all agree that Petitioner rejected the inside job regardless of any beliefs Petitioner held about what salary was involved and regardless of whether it was a part-time or full-time job, purely because the inside salesman job offer was not a return to his same outside sales job and because he refused to share an office with Joe Nave, the superior he believed had fired him. At that point, Petitioner's refusal of the inside sales job, Petitioner's wife's insistence that Joe Nave had already fired Petitioner, and Joe Nave's response became so loud, adamant, and vitriolic that Dr. Hawkins tried to calm the situation down by asking Joe Nave to leave the meeting and the room. After Joe Nave left, the meeting among Petitioner, his wife, and Dr. Hawkins continued in only a slightly calmer atmosphere. Petitioner never specifically told Dr. Hawkins he was able to return to his outside sales job that day. According to Petitioner's testimony at formal hearing, at the time of the meeting on October 31, 1989, he felt that he could have resumed his duties, but that he could not have daily serviced his usual number of accounts. At the meeting, Dr. Hawkins remained under the mistaken impression that Petitioner was still wearing the drains and catheter. Therefore, Dr. Hawkins still would not make any statement binding the Respondent corporation to return Petitioner to his outside salesman job. Dr. Hawkins asked Petitioner whether he had been released by his treating physician. Petitioner told Dr. Hawkins that he still needed to see his doctor on November 10. 4/ Dr. Hawkins told Petitioner they would meet after November 10 to "iron out" the situation. Dr. Hawkins called in the corporate comptroller, Sherry Deist, and instructed her to pay Petitioner half pay until November 10. There is no evidence that Respondent had any policy or employee plan that would have provided Petitioner with any pay at all after his vacation and sick leave was used up. Even though Petitioner's vacation and sick leave had run out, Respondent had actually paid Petitioner full pay until he returned to work. 5/ Respondent also paid Petitioner full pay while he tried to work for approximately 10 days before he was "done in" and went home to recuperate. Respondent continued to pay Petitioner full pay while he was in South Carolina and for the few interim days up until the October 31 meeting. From October 31 until November 10, 1989, Respondent paid Petitioner half salary. Dr. Hawkins anticipated hearing from Petitioner on or about November 10, 1989 as to whether or not he had been released by his doctor. Dr. Hawkins had planned to set up a new meeting to work out Petitioner's job status at that time, but Petitioner never called Dr. Hawkins to set up such a meeting. At Dr. Hawkins' request, Sherry Deist called Petitioner on or about November 10, 1989 to ask if he had called Dr. Hawkins. Petitioner told her that he had not called Dr. Hawkins and that it was Dr. Hawkins' duty to set up a new meeting. Ms. Deist offered Petitioner Dr. Hawkins' phone number, but Petitioner said he had it. Sherry Deist relayed this information to Dr. Hawkins. It is Respondent's policy that unless an employee personally asks to have a check mailed, he must pick it up personally. At Ms. Deist's request, Petitioner came in to see her to pick up his check covering the November 10 date. Dr. Hawkins could have initiated a phone call or set up another job status meeting at that point, but he deliberately did not. Based upon gossip that Petitioner had never been released by his doctor, was seeking employment elsewhere, and/or was hiring a lawyer to fight his termination, none of which conflicting hearsay statements were ever established to be true, Dr. Hawkins did not initiate any further direct contact between himself and Petitioner and told Sherry Deist to keep good notes whenever she talked to him. Up to this point, Respondent had treated Petitioner in every way as if he were still employed. Dr. Hawkins' open-ended offer of another meeting to "iron out" the situation made it unreasonable of Petitioner to continue to insist that he had been terminated by Joe Nave and refuse to contact Dr. Hawkins. Also, it was reasonable, on the basis of his past experience in the Respondent's employ, for Petitioner to know, regardless of the confusion, that the burden was on him to make clear to his employer, probably through a written medical release, that he was medically able to resume his duties. 6/ Sherry Deist then phoned Petitioner, pursuant to COBRA, to inquire whether Petitioner wished to continue his group medical insurance. When he replied affirmatively, she told Petitioner he could mail Respondent a check. No evidence was presented to show that COBRA requires offering this insurance option only if Petitioner were terminated or if the employer would also have had to offer it upon Petitioner's retirement. Later, Ms. Deist called Petitioner and asked him to fill out his retirement papers. Although Petitioner told Ms. Deist that he had not retired, but had been terminated, he also requested her to fill out the retirement papers for him. He signed them in January 1990. Prior to his surgery, Petitioner was 64 years old, and the other outside salesman, Ed Girton, was 58. Mr. Girton left Respondent's employ for another job in August 1989, a month before Petitioner's surgery. Shortly prior to the time Petitioner had surgery, Respondent offered an outside sales job to Mike Monaghman, age 35. Mr. Monaghman did not accept the offer. There is no clear evidence which outside sales position was being offered to Mr. Monaghman, but it is most probable that it was the one previously held by Mr. Girton. Eventually, Rick Thames, age 36-37 took that position. Rick Thames was not hired from outside but previously had been a counter man for Respondent. He lasted only eight months on the outside and requested to return to counter work. Petitioner's position was not covered by anyone for the first two weeks he was out sick. From approximately the time of Joe Nave's acrimonious phone conversation with Mrs. Lindsey, wherein he told her he had given Petitioner's accounts and car to someone else, until May 1990, Petitioner's accounts were covered by Burt Oliver, 66 years old, who already worked for Respondent in parts management only three days a week to supplement his Social Security retirement income. When Mr. Oliver could no longer cover the accounts in three days, he returned to inside employment in parts work and his outside accounts were given to a younger man, Mark Roberts, who was 32 years old. Mark Roberts was hired from outside, but the record is unclear as to precisely when. Since 1989, both outside sales positions have been filled by a succession of people at various times and the territories were reorganized at approximately the time Burt Oliver returned to inside employment. Eventually, the persons placed in outside sales were Mark Roberts, 32, Phil Snyder, a man in his 50's, and Wayne Butler, age 40. Respondent's car formerly used by Petitioner in outside sales was used by Burt Oliver and by just about every other White Auto Parts employee on a haphazard basis until it was sent for repair. The Respondent currently employs at least 20 people over the age of The Respondent currently employs, and consistently has employed, many employees over the age of 60, but most of these work/worked only part-time to supplement their Social Security retirement income. There are currently two full-time employees over sixty. One is approximately 70 years old and was hired after Joe Nave left the Respondent for other employment. Petitioner has remained under a physician's care on a three-months- return-visit basis.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition and denying the prayed-for relief. RECOMMENDED this 25th day of November, 1991 in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 25th day of November, 1991. 1/ See
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
The Issue The issue is whether Respondent committed an act of discrimination in employment based on age, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner was born on December 11, 1951. She was employed by Respondent from 1977 until December 27, 1999, at which time Respondent terminated her. During the entire term of her employment, Petitioner has served as an outside sales representative. As an outside sales representative, Petitioner was typically assigned a territory within which she was to serve existing advertisers and develop new advertisers. Petitioner often helped customers prepare their advertisements and plan and budget their advertising campaigns. While employed with Respondent, Petitioner helped train Mr. Fine, who has been employed with Respondent for nearly 13 years. Mr. Fine is currently the National Advertising Director, but, during the time in question, served as the Broward Advertising Sales Manager, and, as such, he supervised Petitioner. He served as the Broward Advertising Sales Manager from September 1998 through February or March 2000. While Broward Advertising Sales Manager, Mr. Fine supervised eight sales representatives. Mr. Fine found that Petitioner was strong in persuasiveness, but weak at times when she displayed a negative attitude and sense of entitlement to her job and her way of doing her job. She also treated customers inconsistently. In February 1999, Mr. Fine disciplined Petitioner for her handling of an internal fax that the Broward office received from an employee of Respondent in another office. The fax was addressed to a member of management and contained salary information about five persons in the office. Petitioner happened to find the fax and revealed its contents to her coworkers before delivering it to the addressee. When Mr. Fine reprimanded Petitioner for her actions, she denied any wrongdoing. Next, Mr. Fine began receiving complaints from various of Petitioner's customers, mostly over a relatively short period of time. A marketing person at the Swap Shop complained that Petitioner was brusque in dealing with her. Another customer representative mentioned that Petitioner had criticized one of her coworkers in suggesting that the customer place all of its business with Petitioner. A similar situation arose with another customer, to whom Petitioner claimed that its outside sales representative handled only smaller accounts. A representative of the Florida Philharmonic Orchestra requested that Mr. Fine assign it a new outside sales representative because Petitioner raised her voice and talked down to its young, inexperienced marketing person. On June 29, 1999, Mr. Fine sent a memorandum to his supervisor, Donna Sasser, who was then Advertising Director. The memorandum describes Petitioner as "dynamite" and expresses concern as to when she "will blow and who she will hurt." At the time, Mr. Fine was concerned that Petitioner's actions might undermine morale among the other staff for whom he was responsible. Ms. Sasser advised Mr. Fine to communicate to Petitioner specific expectations in terms of job performance and customer interaction in particular. Mr. Fine met with Petitioner and detailed his problems with her job performance and his expectations for improvement. By memorandum dated July 30, 1999, Mr. Fine memorialized the meeting, including specific customer complaints, and warned that Petitioner's job "will end, even within the next few weeks, if you are unable to achieve the following: no additional customer complaints, monthly goals [met] on a consistent basis; positive, collaborative attitude with co-workers, customers, and managers; [and] acceptance of responsibility for what goes well and what does not go well." Petitioner resisted Mr. Fine's criticism. By memorandum dated August 22, 1999, she defended her actions by pointing to shortcomings elsewhere within Respondent. Significantly, the memorandum does not address the complaints about brusque, discourteous treatment of employees of customers. At this point, Mr. Fine, who was a young manager, was legitimately concerned about whether Petitioner's attitude would undermine his ability to do his job. Mr. Fine resolved to assess over the next three to six months whether Petitioner met the goals that he stated in the July 30 memorandum. In late October 1999, a representative of the Cleveland Clinic complained about Petitioner's handling of its account. The complaints included Petitioner's "flip attitude" and "lack of professionalism." Two months later, Mr. Fine received a more serious complaint because it involved a loss of revenue to Respondent and the advertiser. Due to some miscommunication, Respondent published the wrong advertisement for a customer. When the customer's representative telephoned Petitioner and complained, she blamed someone at the Fort Lauderdale Sun Sentinel, who had supplied her the wrong advertisement for publication. When she did not call him back on the day that she had promised, the customer representative called Respondent, complained about the poor handling of the account, noted the reduction in advertising from his company over the past year as compared to the prior year, and requested a different outside sales representative. Mr. Fine consulted with Ms. Sasser and Janet Stone, the Human Relations specialist assigned to advertising. The three agreed that Respondent should terminate Petitioner. Their decision was submitted through four levels of management--up to the level of Publisher--and each level approved the decision before it was implemented. On December 27, 1999--six days after the receipt of the last complaint--Mr. Fine and Ms. Stone met with Petitioner and told her that she had been terminated. At the hearing, Petitioner presented evidence of a contemporaneous complaint about age discrimination that she had made to a Human Relations specialist who had since left the employment of Respondent. Respondent contested this assertion, but Petitioner's August 22 memorandum states that, as a "female over 40 I feel the harassment and stress that you have been putting on me is totally unnecessary." Although not a formal complaint concerning age discrimination, this memorandum is an early mention of Petitioner's age within the context of harassment. Based on the testimony of coworkers, Mr. Fine was a high-pressure manager, given to yelling, but he did not make age-related comments to Petitioner. Even if Petitioner had timely made comprehensive complaints about age discrimination, the record in this case does not support her claim that her termination was due to age discrimination. Mr. Fine hired two outside sales representatives over 40 years old, and the only other outside sales representative whom he fired was under 40 years old. More importantly, he treated employees the same without regard to age. Most importantly, Petitioner's job performance provided Mr. Fine with ample reason to fire her. Without regard to the quality of the support that Petitioner received, customer satisfaction is paramount in advertising. In a competitive environment, Mr. Fine justifiably sought satisfaction of all customers, not just favored customers. Mr. Fine could not reasonably allow Petitioner to continue to treat discourteously representatives of advertisers, regardless of the merits of her claims of inadequate support. Past evaluations suggest that interpersonal relations was never Petitioner's strength. Despite an obvious talent at advertising sales and considerable experience, Petitioner's frustrations with the perceived incompetence of her coworkers and customers' employees weakened her interpersonal skills beyond a critical point, so that her other strengths no longer offset this important deficit.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 2002. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jan Hall-Szugye 3834 Panther Creek Road Clyde, North Carolina 28721 Ellen M. Leibovitch Adorno & Yoss, P.A. 700 South Federal Highway, Suite 200 Boca Raton, Florida 33432