The Issue Whether Respondent, Cox Cable, discriminated against Petitioner, Janice B. Campbell, in violation of the Florida Civil Rights Act of 1992 (“the Act”), sections 760.01–760.11 and 509.092, Florida Statutes, by disciplining and then terminating her, in retaliation for her participation in a protected activity under the Act.
Findings Of Fact Cox Cable (Cox) is a provider of telephone, internet, cable, and digital television service in several regions of Florida. Cox is an employer within the meaning of the Act and Title VII of the Civil Rights Act of 1964, as amended. Petitioner was employed by Cox in its Pensacola office from May 2000, until her termination on March 19, 2012. Petitioner held a number of different positions during her tenure with Cox, including Quality Control, Customer Care Representative and Retention Representative. Petitioner joined the Customer Retention Department in July 2010, as a Retention Representative. The primary duty of a Retention Representative is to take calls from existing customers who are requesting termination or downgrade of their existing service and save those customers for Cox. Cox trains Retention Representatives to use a “call flow” with these customers. The call flow is a quality guideline that shows representatives what offers can be made to the customer at the time of the call. When a customer or potential customer calls Cox, they encounter an automated menu of services and are directed to a specific department based on their menu selections. For example, an existing customer with technical or billing questions is routed to the Customer Care Department; a customer moving out of the area is routed to the Account Services Department; and an existing customer who wishes to downgrade or disconnect service is routed to the Retention Department. Calls waiting for a representative in a particular department are “in the queue” for that department. Calls should be answered in the order received. While a Retention Representative’s primary job is to save existing customers, they may sell services to those customers as a secondary duty. For example, a retention representative may try to save the customer money by offering to provide services the customer is receiving from another provider (e.g., telephone) with services currently provided by Cox (e.g., cable) in order to reduce the customer’s overall service cost while retaining the customer. The term for this practice is offering to “bundle” services. Cox maintains a policy against Retention Representatives taking calls transferred directly to their line from representatives in other departments in order to sell services. This practice is known as “direct transfer calls.” Retention Representatives, however, are not prohibited from taking all sales calls. They may handle, for example, a call from a customer looking to purchase services when that call comes into the retention queue (presumably because the caller pressed the incorrect key). In fact, the Retention Department has sales goals set by Cox corporate office. When goals are set for a particular product or service, Cox provides incentives to boost sales of the particular product or service. The call flow provides Retention Representatives with a tool to sell upgrades to existing services based on availability of promotional offers. The Retention Department was formerly part of the Inbound Sales Department. In May 2010, just two months before Petitioner joined, Retention was created as a separate “stand alone” department with a focus on saving existing customers. The authority of the Retention Representatives with respect to selling services was subject to much confusion during the separation of the Retention Department from the Incoming Sales Department. On September 14, 2011, the Retention Managers, Shannon Boyd-Tibbs and Daniel Lister, met with all the Retention Representatives in a “huddle” to explain the types of calls they could and could not receive. The group meeting was followed up the same day by one- on-one meetings between the Retention Supervisors and each of the Retention Representatives under their supervision. On September 14, 2011, following the huddle meeting, Petitioner met with Ms. Boyd-Tibbs who reviewed with her a document titled “Sales Performance Expectation Clarification.” The “Sales Performance Expectation Clarification” provides, among other expectations, “Closed sales should not be transferred from one sales representative to another which may impact commission or performance metrics” and “Sales representatives are not permitted to transfer sales to another representative, which would cause an increase in commissions or sales performance.” Petitioner acknowledged receipt of the “Sales Performance Expectation Clarification” by her signature dated September 14, 2011. Six days later, Retention Supervisor, Daniel Lister, further clarified the issue in an email to all Retention Representatives on September 20, 2011, stating “[I]f a sales call comes into the queue, you will be able to take care of this customer. It does not mean you should take calls that are sent directly to you by a representative from billing or various other departments.” The reasons for prohibiting direct transfer calls are three-fold. First, the practice skews the Retention Department’s sales goals, which are based on the prior year’s numbers. If sales are up based on direct transfer calls in the prior year, the current year’s sales goal is inflated and may be unattainable. Second, the practice causes customers in the retention queue to wait longer for a representative, potentially causing them to become more irate and less likely to be retained. Finally, it is unfair to other Retention Representatives who compete for incentives and bonuses based on sales. Petitioner admits taking direct transfer calls from a number of sales representatives. Despite management’s clarification of the company policy in September 2011, Petitioner continued the practice throughout the remainder of the year and into 2012. On March 13, 2012, Petitioner was suspended with pay for continuing to take direct transfer calls. Her supervisor, Ms. Boyd-Tibbs, met with Petitioner and explained the basis for her suspension. During Petitioner’s suspension, Ms. Boyd-Tibbs and Mr. Lister requested and reviewed a number of reports documenting Petitioner’s direct-transfer sales and confirming Petitioner’s disproportionate sales numbers. The final decision to terminate Petitioner was made by Dennis Huber, supervisor of both Mr. Lister and Ms. Boyd-Tibbs, but only after consultation with Human Resources and the Customer Care Sales Manager. Petitioner was terminated on March 19, 2012. Ms. Boyd-Tibbs delivered the news over the phone to Petitioner. Petitioner claims she was terminated in retaliation for reporting unethical behavior by another Retention Representative, Belinda Thompson. Petitioner claims Ms. Thompson inflated her performance numbers by failing to disconnect customers who requested termination of service, transferring certain calls back to the queue, giving unauthorized credits to customers, and other questionable practices. The evidence shows Petitioner did complain to Ms. Boyd-Tibbs about Ms. Thompson’s sales practices, which were investigated by Cox and found the complaints to be unsupported. Rather than showing that Petitioner was retaliated against, the evidence demonstrated that Petitioner was terminated by Cox on March 19, 2012, for violating company policy against taking “direct transfer” sales calls from other representatives in different departments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of November, 2012, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 13th day of November, 2012.
Findings Of Fact Frank Pope incorporated Porcine Motors Inc., in 1972, and has operated a used car lot at 16928 South Dixie Highway under that name since that time. He also leases cars. In 1974 the annual corporate report was not filed by Perrine Motors Inc., and the corporation was dissolved, by proclamation. Pepe was unaware that his corporation had been dissolved. In about 1978, Pepe leased part of his used carlot to James P. Fashik, who also sold used cars under the name of "Jamiel." This lease extended until 1980, when Fashik's sister, on October 1, 1980, obtained a corporate charter in the name of Perrine Motors, Inc., and opened a used car lot et 17750 South Dixie Highway. This lot is operated by Fashik. The sign on the business at 17750 South Dixie Highway is "Jamiel's at Perrine Motors" with the same size lettering throughout except for "at", which is smaller lettering. At all times from 1972, until recently, the signs at the used car lot at 16928 South Dixie Highway read "Perrine Motors." After obtaining the corporate name, "Perrine Motors, Inc.," the new corporation advised Pepe that he could no longer use that name. On November 17, 1980, Pepe was issued a corporate charter in the name of "Frank Pepe's Perrine Motors, Inc." It is this name that Petitioner seeks to have rescinded. To prove the deceptive similarity of these names, Petitioner called three witnesses besides Fashik. Ludwig Blaha purchased two cars from Jamiel while he was located at 16920 South Dixie Highway and attempted to call him after his relocation to explain he would be late for a monthly payment. He used the phone number on the card he obtained from Jamiel and testified the phone was answered by someone at Pepe's who said, "Jamiel is dead." The phone number on the card was Fashik's number which did not stay at 16928 South Dixie Highway after Fashik left. When Blaha drove down South Dixie Highway, he readily found Jamiel at his new location. Jack Coler was advised that Fashik needed an accountant and attempted to call him for an appointment. He looked in the yellow pages of the telephone directory and called the number listed for Perrine Motors. This number was answered at Pepe's. Coler then drove to Fashik's business location at 17750 South Dixie Highway. Michael Johnson, in April, 1981, left a deposit check at Perrine Motors, Inc., on a car he was interested in. He shortly thereafter changed his mind and attempted to call Perrine Motors, Inc. to toll them not to deposit his check. He called the number in the phone book and got Pepe's. He dialed information and called the number given. He again got Pepe's. He then drove down to Perrine Motors, Inc. at 17750 South Dixie Highway. The yellow pages section of the Miami telephone directory was printed before Perrine Motors, Inc. was incorporated October 1, 1980. It was sometime later before the necessary information was presented to the telephone company so the correct phone number for Perrine Motors, Inc. could be obtained from the information operator. The signs at 16928 South Dixie Highway were not changed to read "Frank Pepe's Perrine Motors" until after April 1 1981 although Pepe testified he contracted with a painter to change the signs shortly after he incorporated on November 17, 1980. While operating his used car business at 16928 South Dixie Highway, Fashik was using Pepe's address, premises and license. He now claims that after he acquired the right to use the name "Perrine Motors, Inc.", the name "Frank Pepe's Perrine Motors, Inc." is deceptively similar to "Perrine Motors Inc." As a result of this similarity, some of his advertising benefits Pepe, some of his supplies and billings are misdirected, and the telephone book shows Perrine Motors located at Pepe's address. At the time of the hearing, the yellow pages had not yet been reprinted to correctly reflect the address of Perrine Motors, Inc. at 17750 South Dixie Highway, but when next reprinted, it will contain the correct telephone number and address.
The Issue The issue in this case is whether Respondent, Qablawi Auto Sales, discriminated against Petitioner, Carmen R. Cuevas, on the basis of her disability (hearing loss) in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a woman who wears hearing aids. She provided no explanation for her hearing loss other than the fact that she was “hard of hearing.” No medical documentation was introduced by Petitioner to substantiate her claim of hearing loss, but it appeared she struggled at times to hear clearly. Respondent owns a small used auto sales business located in Cocoa, Florida. The manager of his business is James Devore. Some time in early October 2011, Petitioner came into the auto sales store to make a payment on a car she had purchased from the store. During a conversation with the store manager, Petitioner stated that she was looking for a job. The manager suggested that there may be an opening for her at the store. Petitioner filled out an employment application and it was submitted to Qablawi for review. An interview was conducted, and Petitioner was hired as a web sales agent. Qablawi said that he agreed to hire Petitioner because he liked her personality and she seemed able to do the required work. Petitioner told Qablawi about her hearing issues, but he advised her that the phones were state of the art, that there would be other people in the same office, and that he believed she would not have any problems. Petitioner said she had worked in a marketing job for nine years and had no problems using the telephone in that position. When Petitioner started work, she was trained by an employee named Jessica who was being promoted to another job. The training was conducted at Jessica’s desk within the office. The office was a small open room with five or six desks situated around the room. There was another web sales agent at one of the desks; the others belonged to the manager and outside car salesmen. Each desk had a computer and a telephone with each of those items “coded” to a specific employee. After her training was complete, Petitioner continued to work at Jessica’s desk for the remainder of the first week. When she came in the second week, she was assigned a new desk. The parties disagree as to where in the office the new desk was located: Petitioner said the desk was located right next to the door which was used for ingress and egress by employees and customers. The manager said her desk was right next to the desk where she had been trained. Upon review of all the evidence, the manager’s testimony (confirmed by Qablawi) is more credible. The two web sales agent desks were in one section of the office, the outside car salesmen desks were in another. Thus, it is most likely that Petitioner’s assigned desk was close to Jessica’s desk. On Saturday, October 15, 2011, Petitioner started her business day working at Jessica’s desk. When she returned to work after lunch that day, she found that she had been moved over to the next desk. She finished her work day, but felt like the new work space was not as preferable as Jessica’s desk. The two desks were basically side by side in an L-shape. On Monday, October 17, 2011, when Petitioner reported to work she placed her handbag, lunch, and other personal items on the desk just inside the front door. She then went to the manager and asked if she could be moved to Jessica’s old desk. Jessica had by that time moved on to her new position. The manager explained that her assigned work space was “coded” for her and that she needed to work in that space. Petitioner objected to the new work space on the basis that it was near a door and that she would be bothered by all the coming and going of employees and customers. (However, during her sworn testimony, Petitioner said that there was not much traffic in the office and she often worked in the room alone or with one other person.) The manager denied her request and said that Petitioner had to work where she was assigned. In response, Petitioner told the manager that if she could not work at the desk she wanted, she would leave. The manager called Qablawi and told him what had transpired. Qablawi said that if that was Petitioner’s decision, he could not do anything about it. When advised as to what Qablawi said, Petitioner asked for a ride back to her car and left the office. Petitioner did not call Qablawi or the manager after leaving the store. She did not inquire of Qablawi whether any accommodations could be made. Petitioner did not submit a letter of resignation, nor did she make any complaint about discrimination of any kind. Approximately one month later, Petitioner woke up to find that her car was missing. She called Qablawi to ask whether he had repossessed it because she was behind on payments. She understood that her car would be repossessed and did not object to that happening. Her call to Qablawi was simply to make sure he had the car and that it had not been stolen. Qablawi had been trying to help Petitioner by allowing late and short payments, but she still could not keep up. A short time later, Qablawi found out that Petitioner had filed a complaint against him for discrimination. An appeals referee from the Agency for Workforce Innovation conducted a hearing to discuss Petitioner’s complaint. During that hearing, Qablawi offered Petitioner her job back, but she did not accept his offer. No such offer was made at the final hearing in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Carmen R. Cuevas's Petition for Relief in full. DONE AND ENTERED this 4th day of October, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 4th day of October, 2012.
The Issue The issue is whether Nissan North America, Inc.'s (Nissan) rejection of the proposed transfer of the equity interest in Love Nissan, Inc. (Love), from Robert Halleen and Chad Halleen to Marilyn Halleen, is in violation of the laws regulating the licensing of motor vehicle dealers and manufacturers, maintaining competition, providing consumer protection and fair trade and providing minorities with opportunities for full participation as motor vehicle dealers, as set forth in Sections 320.61-320.70, Florida Statutes.
Findings Of Fact Nissan is a "licensee" as defined by Section 320.60(8), Florida Statutes. Love is a "motor vehicle dealer" as defined by Section 320.60(11)(a)1, Florida Statutes. Love serves a territory centered on Homosassa, Florida. Nissan and Love are parties to a Dealer Sales and Service Agreement (Agreement), which is an "agreement" or "franchise agreement," as defined by Section 320.60(1), Florida Statutes. Robert Halleen and Chad Halleen became owners of Love as the result of a 1999 gift of the equity of Love from Robert's father and Chad's grandfather. Subsequent to the donation, Robert became a 90 percent owner of Love and Chad became a ten percent owner. Robert Halleen and Chad Halleen entered into the Agreement with Nissan on March 4, 1999. Since that time Robert Halleen has served as the Dealer Principal and Principal Owner of Love Nissan, and Chad Halleen has served as the Executive Manager and Other Owner. The Agreement has never been amended. The Agreement clearly states that Nissan relied on the personal qualifications of the Principal Owner, Other Owner, and Executive Manager in entering into the Agreement. In addition to personal qualifications, the Agreement recites expertise, reputation, integrity, experience, and ability, as characteristics expected of the Principal Owner, Other Owner, and Executive Manager. Since Robert and Chad Halleen became owners of Love the dealership has never met the regional average sales penetration. The regional average sales penetration is the measurement used by Nissan to evaluate the sales performance of each of its dealers. Subsequent to the inception of the Agreement, Nissan has issued multiple Notices of Default to Love citing Love's poor sales performance. In an effort to facilitate Love's success, Nissan contracted their primary market area on several occasions. This and other efforts to bolster Love's performance failed. As a result, Nissan issued a Notice of Termination of the Dealer Sales and Service Agreement between itself and Love, dated April 1, 2004. This precipitated a protest and a formal hearing before Administrative Law Judge Ella Jane Davis who recommended that DHSMV dismiss the protest and ratify the Notice of Termination. As noted above, DHSMV has not issued a final order. Because it has not, and because an appeal could follow, Nissan has not yet entered into a franchise with a new dealer for the Homosassa primary market area. It is Nissan's intention to award the area to a qualified minority candidate. Eleven days after the issuance of Judge Davis's order, on July 25, 2005, Robert and Chad Halleen notified Nissan of their intent to sell all of their stock in Love to Marilyn Halleen. In a short letter to Nissan, the selling price was said to be $100 with an increase to $5,000,000 should the sale ultimately be made to a third party. The dealership, if sold on the open market, would bring much more than $100. It could sell for as much as five million dollars. The letter also averred that there would not be a change in the executive management. The decision to sell all of the stock in Love to Marilyn Halleen was made by Robert Halleen. Chad Halleen was instructed by his father to comply with his decision to sell and he did as instructed. Prior to the issuance of Judge Davis's Recommended Order, Robert and Chad Halleen decided that if the termination case had an unfavorable outcome, they would avoid it by selling Love to a family member. They attempted to give effect to this course of action by discussing with Robert Halleen's father the possibility of transferring ownership to him. Robert and Chad Halleen desired to keep the dealership in the family and to ensure that Chad remained employed. Pursuant to the contemplated transfer to Robert Halleen's father, Chad Halleen would continue as Executive Manager, which was also the case in the proposed transfer to Marilyn Halleen. The discussion with Robert Halleen's father did not ripen into a course of action. During their tenure at Love, Robert and Chad Halleen informally divided the operational responsibilities between themselves. Chad Halleen was primarily responsible for the sales department and Robert Halleen focused on supervising the day-to-day operations of the parts, service, and accounting departments. However, it is clear that Robert Halleen, has been since the inception of the Agreement, and was, at least up to the date of the formal hearing, in ultimate overall charge of all of the operations of Love. Robert Halleen asserted at the hearing that he would abandon his role in the management of Love. Love attempted to prove that Chad Halleen was capable of successfully managing the operation without the aid of his father. However, the evidence taken as a whole, indicated that he had never operated the dealership without the assistance of Robert Halleen and that he would have difficulty doing so without that assistance. Subsequent to the proposed transfer, the management of Love would, allegedly, consist of Marilyn Halleen and Chad Halleen. They would be, under the Agreement, the "executive management," which is the term used in the Agreement to describe the Dealer Principal and the Executive Manager. It is not necessary under the Agreement, for a Dealer Principal to be actively involved in the daily business of the dealership, and because a Dealer Principal may own dealerships in more than one geographical area, it is not unusual to find a Dealer Principal who is not active in the day-to-day management of dealerships she or he owns. However, in this case it is contemplated, and Marilyn Halleen has so stated, that she and Chad Halleen would operate the business together. Currently, Marilyn Halleen's participation in the operation of the dealership has been working as a bookkeeper in the accounting department. Marilyn Halleen stated that should the transfer be approved, she would make the decisions about running the dealership, how the dealership is capitalized, new car sales, used car sales, allocation and ordering, marketing, management of the parts and service departments, and all of the other myriad responsibilities incumbent on a manager of an automobile dealership. However, her work experience does not qualify her to successfully accomplish all of these tasks and this plan is contrary to the assertion in the notice to Nissan that there would be no change in executive management. Marilyn Halleen has never owned a dealership or any other business. Her management experience is limited to filling a position as an office manager in a Buick dealership many years ago. In various automobile dealerships she has worked as a title clerk, receptionist, cashier, and in a warranty department. Prior to becoming bookkeeper at Love she worked full-time selling cosmetics for Mary Kay. Nissan was unaware of the details of Marilyn Halleen's business experience, or lack of it, at the time they determined that they would reject the proposed transfer. However, the notice to Love that the proposed transfer was rejected, dated September 20, 2005, recited in the attachment that the rejection was based on Nissan's belief the transfer was a sham. Marilyn Halleen's lack of experience is evidence tending to prove that the transfer was a sham. To find as a fact that Robert and Chad Halleen were really going to give Marilyn Halleen complete ownership and control over Love would require a suspension of disbelief. Having observed the lackluster performance of Robert and Chad Halleen over a five-year period, Nissan reasonably concluded that Marilyn Halleen was unlikely to ramp up Love's performance. Although Section 320.943(2), Florida Statutes, does not require that a transfer of an equity interest be at arms- length, the fact that a purported transfer is not an arms-length transaction, when considered with other evidence, may tend to demonstrate, as it does in this case, that the purported transfer is a sham. The fact that the purchase price is remarkably below market value does not in every case mean that a purported transfer is a sham. Under the facts of this case, however, the below market sales price tends to prove that the purported transfer is illusory. The evidence, taken as a whole, proves that the purported transfer is an artifice or device designed to avoid the consequences of the poor performance of Love while under the command of Robert and Chad Halleen. Thus the proposed transfer is not a real transfer; it is a sham designed to avoid Judge Davis's Recommended Order upholding the termination. Marilyn Halleen, although a human being separate from her spouse and off-spring, cannot be considered "any other person or persons." She is the alter ego of Robert and Chad Halleen and, should the transfer be approved, the evidence demonstrates she will be a mere agent or tool of the current owners and the inept management of Love will continue. It was not proven that Marilyn Halleen lacked good character as that term is used in Section 320.643(2), Florida Statutes, which governs the transfer of an equity interest in a dealership. The question of whether or not the proposed transfer involved a change in executive management at Love, which might trigger consideration of Section 320.643(1) or 320.644, Florida Statutes, a question advanced by Nissan, at the hearing, and in Nissan's Proposed Recommended Order, need not be addressed for the reasons set forth in paragraph 23, above. In order for those sections to be invoked there must first be a valid transfer.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a Final Order stating that pursuant to Nissan's verified Petition for Determination of Invalid Proposed Transfer Pursuant to Section 320.643, Florida Statutes, and Notice of Rejection of Proposed Transfer, no transfer under Section 320.643, Florida Statutes, is proposed and Nissan's rejection of it was proper. Further, the Department of Highway Safety and Motor Vehicles should enter a Final Order dismissing Robert Halleen and Chad Halleen's Petition for Determination of Wrongful Turndown. DONE AND ENTERED this 18th day of January, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2006. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 S. Keith Hutto, Esquire Nelson, Mullins, Riley & Scarborough, LLP 1320 Main Street Columbia, South Carolina 29201 Dean Bunch, Esquire Sutherland, Asbill & Brennan, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312-1267 John W. Forehand, Esquire Lewis, Longman & Walker, P.A. 125 South Gadsden Street, Suite 300 Tallahassee, Florida 32301-1525 Alex Kurkin, Esquire Pathman Lewis, LLP One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 Tallahassee, Florida 32399-0600 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1701
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 central issue presented in this case concerns whether the Department of Banking and Finance’s application of Section 717.124(5), Florida Statutes, as amended effective October 1, 2001, to claims filed prior to October 1, 2001, but paid after October 1, 2001, is an unpromulgated rule in violation of Section 120.56(4), Florida Statutes.
Findings Of Fact Computer Mart Claim 1.(A) On or about September 4, 2001, Petitioner filed a claim on behalf of Computer Mart, Inc., for unclaimed property account number 3563-1994-44 in the amount of $1,854.85 and reported in the name of Computer Mart (“the Computer Mart Claim”). Prior to the filing of the Computer Mart Claim, Computer Mart, Inc., executed an Agreement authorizing Petitioner to file the claim on its behalf. Petitioner obtained a bankruptcy search for Florida Central Realty, formerly known as Computer Mart. On or about October 12, 2001, the Department approved the Computer Mart Claim. The Agreement authorized the payment of fees of thirty percent of the accounts claimed, which equaled $556.45. The remaining seventy percent of the accounts claimed equaled $1,298.40. On or about October 19, 2001, the Department issued a warrant in the amount of $556.45 to Petitioner. On or about October 19, 2001, the Department issued a warrant in the amount of $1,298.40 to Computer Mart, Inc. Diversified Claim 2.(A) On or about September 4, 2001, Petitioner filed a claim on behalf of Diversified Hospitality Group, Inc., for unclaimed property account numbers 6467-96-31364, 1165-92- 2634, 1165-92-2241, 1165-92-24712, and 1165-92-1871 in the aggregate amount of $4,165.60 and reported in the name of Diversified Hospitality or Diversified Hospitality Group (“the Diversified Claim”). Prior to the filing of the Diversified Claim, Diversified Hospitality Group, Inc., executed an Agreement authorizing Petitioner to file the claim on its behalf. Petitioner obtained a bankruptcy search for Diversified Hospitality Group, Inc. On or about October 8, 2001, the Department approved the Diversified Claim. The Agreement authorized the payment of fees of thirty percent of the accounts claimed, which equaled $1,249.68. The remaining seventy percent of the accounts claimed equaled $2,915.92. On or about October 19, 2001, the Department issued a warrant in the aggregate amount of $1,249.68 to Petitioner. On or about October 19, 2001, the Department issued a warrant in the aggregate amount of $2,915.92 to Diversified Hospitality Group, Inc. Charde Claim 3.(A) On or about November 13, 2001, Petitioner filed a claim on behalf of Charde, Inc., for unclaimed property account number 4432-00-2 in the amount of $1,641.47 and reported in the name of Charde, Inc. (“the Charde Claim”). Prior to the filing of the Charde Claim, Charde, Inc., executed an Agreement authorizing Petitioner to file the claim on its behalf. Petitioner obtained a bankruptcy search for Charde, Inc. On or about November 13, 2001, the Department approved the Charde Claim. The Agreement authorized the payment of fees in the amount of $125.00. After the deduction of fees, the remaining amount equals $1,516.47. On or about November 20, 2001, the Department issued a warrant in the amount of $125.00 to Petitioner. On or about November 20, 2001, the Department issued a warrant in the amount of $1,516.47 to Charde, Inc. MTS Claim 4.(A) On or about July 11, 2001, Petitioner filed a claim on behalf of MTS Roofing and Installation Corporation, for unclaimed property account number 1495-96-83 in the amount of $1,000.00 and reported in the name of MTS Roofing Corporation (“the MTS Claim”). Prior to the filing of the MTS Claim, MTS Roofing and Installation Corporation, executed an Agreement authorizing Petitioner to file the claim on its behalf. Petitioner obtained a bankruptcy search for MTS Roofing and Installation Corporation On or about November 7, 2001, the Department approved the MTS Claim. The Agreement authorized the payment of fees of thirty percent of the accounts claimed, which equaled $300.00. The remaining seventy percent of the accounts claimed equaled $700.00. On or about November 14, 2001, the Department issued a warrant in the amount of $300.00 to Petitioner. On or about November 14, 2001, the Department issued a warrant in the amount of $700.00 to MTS Roofing & Installation Corp.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by June C. McKinney, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Polaris Sales, Inc., and Broward Motorsports of Palm Beach, LLC d/b/a Broward Motorsports to sell low-speed vehicles manufactured by Polaris Industries, Inc., (GEM) at 2300 Okeechobee Boulevard, West Palm Beach, (Palm Beach County), Florida 33409. Filed December 10, 2012 1:21 PM Division of Administrative Hearings DONE AND ORDERED this ( | day of December, 2012, in Tallahassee, Leon County, Florida. Buréati of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services i rf Hol prcembe, 2012 Naini Vinayak, Dealer Yicense Administre'" NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: A. Edward Quinton, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com Michael W. Malone Polaris Sales, Inc. 2100 Highway 55 Medina, Minnesota 55340-9770 Sam Nehme Broward Motorsports of Palm Beach, LLC 4760 Sunkist Way Cooper City, Florida 33330 Marc Osheroff Broward Motorsports of Palm Beach, LLC 13600 Stirling Road Southwest Ranches, Florida 33330 Jonathan Brennen Butler, Esquire Akerman Senterfitt 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 Jonathan.butler@akerman.com June C. McKinney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue Whether the Respondent discriminated against the Petitioner in discharging him contrary to Chapter 760, Florida Statutes?
Findings Of Fact The Petitioner is a white, middle-aged male. He was employed by the Respondent until approximately June 2003. His employment was "at will," which is to say that he was not employed pursuant to a contract. The Respondent is a family-owned corporation engaged in the sales of motorcycles, motor scooters, personal watercraft, their parts and accessories. It sells Honda, Kawasaki, and Skeedoo products and is a family-oriented business. It has a standard of employee conduct, and provides its employees copies of its employee handbook. The Petitioner was employed by the Respondent for a number of years prior to 1995, when the Petitioner left to start his own computer sales business. When that business failed, the Petitioner returned to work for the Respondent in approximately 1999, and worked for the Respondent as a parts and accessories salesperson until he was terminated near the first of June 2004. The Petitioner alleges that he was discharged because of his religious beliefs, and testified in his own behalf. On or about March 27, 2003, the Petitioner was waiting on a customer who had purchased several items from him. After the sale was concluded, the Petitioner was engaged by a customer in a religious discussion in which the customer attempted to sway the Petitioner to the customer's fundamentalist, Christian beliefs. The Petitioner was unable to disengage himself from the customer, although from the Petitioner's comments he was engaged in a discussion of his alternative religious beliefs with the customer. During this discussion, another employee approached the Petitioner and asked him in a whisper what was going on. The Petitioner testified that he told the employee, in a whisper, words to the effect that he could not get free of "this asshole who is trying to convert me!" The employee asked in a conversational voice, "Whose the asshole?" This brought forth a question from the customer, "Did you call me an asshole?" The Petitioner answered, "Yes!" or words to that effect. There is no question or controversy that the Petitioner called or intimated that the customer was an asshole. The Respondent's General Manager, Richard McGraw, became aware of the Petitioner's comment to the customer, and as a result the Petitioner was counseled on that date regarding the use of offensive language in the business and warned that any further use of profanity or obscenity on the premises would result in his termination. Religion was not part of their discussion at that time or at any other time. The Petitioner had received a disciplinary report in October of the prior year for passing bad checks to the Respondent. There is no controversy that the Petitioner tendered the Respondent the checks or that he was disciplined. On May 20, 2003, Marion Jones, the owner's wife and an officer in the company, was walking to her office and passed the Petitioner, who was on the telephone at the parts counter of the store. He was talking on the telephone with a parts supplier, and was commenting to the supplier's representative about Fred Marzloff, the Petitioner's direct supervisor. It is uncontroverted that the Petitioner said of Marzloff, "He is a fucking idiot." Ms. Jones brought this matter to the attention of McGraw. On the same day, May 20, 2003, another incident occurred in which the Petitioner was abrupt and rude with a customer for whom parts had been ordered. Although there were extenuating circumstances concerning the ordering of the parts, the Petitioner's conduct was unprofessional, inappropriate, and did not seek to defuse a bad situation, but only made it worse. On May 24, 2003, McGraw observed the Petitioner intervene in a sale by another parts clerk, and take credit for a sale that had been initiated by the other clerk. Sales are on commission, and this disadvantaged the other clerk. The Petitioner admitted taking credit for the sale, and excused his conduct at hearing indicating that he was ringing up a sale and put his initials on it by force of habit. On May 28, 2004, McGraw terminated the Petitioner for the comments overheard by Ms. Jones, for the Petitioner's conduct with the customer over the parts and for the Petitioner's taking credit for the sale. The Petitioner refused to sign the disciplinary reports; however, none of the participants in the meeting at which the Petitioner was terminated or his other counseling sessions mentioned any discussion of religion other than the Petitioner's describing the customer's discussion of religion as being what caused him to call the customer an asshole. The Petitioner did not controvert the essential facts of the incidents. The Petitioner asserts that his declaration that he was an atheist at the counseling session regarding calling the customer an asshole was the basis for his being disciplined. McGraw testified that he was a non-believer, and that his sole reason for discharging the Petitioner was the Petitioner's repeated disregard of customer relations that included the use of obscene and profane language in the sales area, confrontational behavior with customers, and failing to maintain an appropriate professional relationship with fellow employees. The Petitioner presented no credible evidence that the grounds given for his discharge were pretextual or that showed he had been treated differently from similarly situated employees.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order dismissing the Petition for Relief. DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 17th day of September, 2004. COPIES FURNISHED: John H. Waaser Route 5 Box 4975 Lake Butler, Florida 32054 Thomas A. Daniel, Esquire Thomas Daniel, P.A. 623 North Main Street Gainesville, Florida 32601 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
The Issue The issues in this case are whether Petitioner has standing to protest the establishment of an additional motorcycle dealership; and, if so, whether Petitioner is adequately representing this line of motorcycles in the relevant territory or community pursuant to section 320.642, Florida Statutes (2018).1/
Findings Of Fact Tropical Scooters is located at 11594 Seminole Boulevard, Largo, Florida 33778. It has been in the business of selling scooters and other motorized vehicles for ten years. Michele Stanley is the owner and manager of Tropical Scooters and she has knowledge regarding its purchasing and franchise agreements, inventory, and sales figures. Although no franchise agreement was offered into evidence, Ms. Stanley testified Petitioner has an agreement with a distributor, Pacific Rim International, d/b/a Ice Bear ATV (Ice Bear), to sell YNGF motorcycles. Ice Bear has been supplying Petitioner with YNGF motorcycles for approximately two and a half years. Tropical Scooters has had a good relationship with this distributor and has encountered no problems selling the YNGF line. In the last 18 months, Tropical Scooters has sold 137 YNGF units and currently has 23 units at its showroom. Ms. Stanley discovered that Respondents had applied with the Department to establish a YNGF motorcycle dealership at 9145 66th Street North, Pinellas Park, Florida 33782, from the February 22, 2018, notice published by the Department in the Florida Administrative Register.2/ Subsequently, Tropical Scooters filed a timely complaint with the Department challenging Respondents’ application. Ms. Stanley was familiar with the proposed location of the new dealership and stated that it was four miles “as the crow flies” from the Tropical Scooters showroom. Tropical Scooters is an existing dealership that sells YNGF motorcycles and is within 12.5 of the location proposed by Powersports and Motrac for the new dealership. Therefore, Tropical Scooters has standing to bring this challenge pursuant to section 320.642(3). There was no evidence that Tropical Scooters’ representation of the YGNF line of motorcycles was inadequate in its community or territory as described in section 320.642(2)(b).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department denying the new dealership application of Respondents for the sale and service of Sanmen County Youngfu Machine Co., Ltd., vehicles at 9145 66th Street North, Pinellas Park, Pinellas County, Florida. DONE AND ENTERED this 27th day of July, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 27th day of July, 2018.
