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 Whether All Seasons Landscape Contractors, Inc., should be awarded Department of Transportation Contract Number 7584 as the lowest and best bid.
Findings Of Fact Invitation to Bid (ITB) for DOT Contract Number E- 7584, involves the mechanical sweeping of state roadways within District Seven of DOT. District Seven is headquartered in Tampa, Florida. The budget amount for the sweeping project was $194,500.00. There were three bids submitted for the work contemplated by this contract. The bidders and amounts are: All Seasons Landscape $155,320.10 Mark Dunning Industries $187,719.68 Sweeping Corporation $191,864.03 All bidders, submitted bids that were under the budget amount. Petitioner's bid was the lowest bid submitted. The contract specifications for this project provide in pertinent part: M110-31-6 EQUIPMENT The mechanical sweeper shall have a capacity of at least three (3) cubic yards and shall be equipped with one or more brooms to loosen dirt and click it up into the sweeper. The swept material is then gathered onto the elevators for transport to the self contained storage hoppers for eventual rejection at selected disposal locations. A mechanic unit equipped with self elevation and self unloading hoppers for direct discharge into the trucks is also acceptable. The mechanical sweeper shall be equipped with the required safety devices as listed under Section M110-31 of the Special Provisions. The following sweepers are not considered mechanical sweepers for this specific contract. Vacuum Sweepers The vacuum sweeper uses brooms to loosen the dirt in the road and a vacuum to carry the dirt into the collection and storage chamber or container. Vacuum sweepers do not require mechanical elevators to pick up and load into the hoppers. Therefore, it DOES NOT meet the instead specified requirements. Regenerative Sweepers Regenerative sweepers that use forced air of a broom to loosen dirt on the road and employ the vacuum principle to collect the dust loosened by the blowing air and broom. This sweeper DOES NOT meet the requirements. The Contractor must have proof of ownership, or a signed lease for the duration of the contract for equipment suitable for meeting the requirements of this contract. A list of equipment to be used must be enclosed with the Contractor's bid. Where new equipment was purchased, the Contractor shall provide a signed quotation from an equipment dealer with a guaranteed delivery date in order to ensure that the work can begin on time. A sufficient supply of back-up equipment must be readily available by the Contractor by either lease or purchase to ensure timely and continuous fulfillment of this contract. In the event that an accident occurs involving the Contractor's equipment and another vehicle, other than the Contractor's, while the equipment is being used to accomplish authorized work on this contract, no relief in responsibility for work performance shall be granted to the Contractor. The above specification was specifically drafted by DOT to ensure a certain type of sweeping equipment be used by the contractor. DOT had problems with the equipment used under other sweeping contracts. The specifications for the sweeping contract required an equipment list to be submitted with the bid. The list was not required for other equipment. The requirement of the list was not confusing and apparent upon reading the specification. The Petitioner submitted a bid without including an equipment list. Intervenor submitted an equipment list. The third place bidder for the project also did not submit an equipment list with its bid. However, the fact that two out of three bidders failed to submit an equipment list does not lead to the conclusion that the specifications were not clear or confusing. After reviewing the bids, DOT determined that Petitioner's bid was non-responsive for failing to include an equipment list. The equipment list submitted by the Intervenor with its bid listed two pieces of equipment. DOT could not tell from this submitted list whether or not the equipment so listed met the specifications for the project. DOT procured from MDI an equipment brochure from the contractor as supplemental information to the submitted equipment list. This equipment brochure was received by DOT. The brochure demonstrated the equipment met the specification. The brochure did not materially alter the bid. DOT did not attempt to verify with the Petitioner what type of equipment it was currently using on DOT projects nor did DOT attempt to verify what type of equipment the Petitioner had available to use on this project. DOT could not allow the late submission of an equipment list since such a procedure would materially alter the bids after they were opened.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, RECOMMENDED: That the protest of ITB E-7584 be dismissed. DONE and ENTERED this 27th day of November, 1996, in Tallahassee, Leon County, Florida. 3060 9675 Hearings 1996. COPIES FURNISHED: _ DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 SUNCOM 278- Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 27th day of November, Andrea Smart, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Brant L. Hargrove, Esquire 1026 East Park Avenue Tallahassee, Florida 32301 Thomas J. Cassidy, III, Esquire 303 Magnolia Avenue Panama City, Florida 32401 John Radey, Esquire Radey, Hinkle, Thomas, et al. 101 North Monroe Street Tallahassee, Florida 32301 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Did Respondent, Ricoh Americas Corporation, (Ricoh), discriminate against Petitioner, Tamara Gleason (Ms. Gleason), because of her gender by demoting her? Did Ricoh retaliate against Ms. Gleason for complaining about gender discrimination?
Findings Of Fact Ricoh is in the business of selling and servicing document imaging and output equipment, including copiers, fax machines, printers, and related supplies and services such as software, paper, and toner. Ricoh has locations across the United States. Ms. Gleason worked for Ricoh from August 2008 until she resigned on March 31, 2010. She worked in its East Florida Marketplace. That area covers the eastern part of Florida from Jacksonville to Miami. In 2008, and at all times relevant to this proceeding, Al Hines (Mr. Hines) was the East Florida Marketplace manager. His responsibilities included supervising sales personnel and meeting sales quotas. Mr. Hines has worked for Ricoh in various positions for over 31 years. He is based in Ricoh's Maitland, Florida, office near Orlando. In 2008, the organizational structure of the East Florida Marketplace consisted of two group sales managers, one in Central Florida and one in South Florida. These group sales managers reported directly to the Marketplace Manager Mr. Hines. They oversaw sales managers who in turn supervised the various account executives. Also, one sales manager in Jacksonville reported directly to Mr. Hines. The group sales managers and sales managers were responsible for supervising the sales personnel, consisting of major account executives, senior account executives, and account executives. Ricoh assigned major account executives to work with specific large client accounts. Senior account executives were more experienced sales representatives. Senior account executives and account executives were assigned territories. Daytona Beach or a series of zip codes are examples of territories. Ricoh also assigned "vertical markets" for a specific industry, such as "faith-based" institutions to an Account Executive. Ms. Gleason applied and interviewed for an account executive position in the central Florida area of the East Florida Marketplace in August 2008. Mr. Hines, General Sales Manager Cecil Harrelson, and Sales Manager Anthony Arritt interviewed Ms. Gleason. On her resume and in her interview, Ms. Gleason represented that she had 20 years of experience as a sales representative in the office equipment field. Her resume stated that she was "[p]roficient in all areas relating to sales and leasing of copiers, printers, scanners, fax machines and various software solutions. Consistently exceeded sales quota." After the interview, Mr. Hines decided to hire Ms. Gleason for Mr. Harrelson's team. Ricoh hired Ms. Gleason as a senior account executive on August 11, 2008. Mr. Hines initially assigned her to work in the vertical "faith-based" market. In September 2008, a sales manager position for the Daytona Beach/Melbourne territories, overseen by Mr. Hines, opened. Three males applied for the position. Ms. Gleason did not apply. Mr. Hines asked Ms. Gleason if she would be interested in being considered for promotion to sales manager. Although Ms. Gleason had no prior management experience and had only worked for Ricoh for two months, Mr. Hines believed that she would be good in the position and asked her to consider it. Ms. Gleason accepted Mr. Hines' proposal. On September 30, 2008, Mr. Hines promoted her to sales manager. Ricoh provided Ms. Gleason manager training. In April and May of 2009, Ricoh restructured its sales positions. Ricoh changed group sales manager positions to strategic account sales manager positions. It removed all major account executives from teams supervised by sales managers and placed them on the teams supervised by the strategic account sales managers. In central Florida, the reorganization resulted in Cecil Harrelson being moved from general sales manager to strategic account sales manager. The major account executives on Ms. Gleason's team (Mary Cobb, David Norman, and Patrick Mull) and Arritt's team (Todd Anderson and Lynn Kent) were moved onto the new team supervised by Harrelson. All of the major account executives in the East Florida Market supervised by Mr. Hines were transferred to strategic account sales manager teams. On average, the sales managers in the East Florida Marketplace each lost two major account executives due to the reorganization. Mr. Hines required all of the sales managers to hire new sales personnel to bring the number of sales personnel on their teams to expected levels. This is known as maintaining "headcount." Ms. Gleason knew of this requirement. Also it was not new. The responsibility to maintain headcount pre-existed the reorganization. From the time of her hire until early 2009, around the time that the Company reorganized its sales positions, Ms. Gleason had no issues with Mr. Hines or complaints about his management. As a sales manager, Ms. Gleason bore responsibility for supervising a team of sales personnel and for ensuring that her team members met their monthly sales quotas. In addition, Ms. Gleason was responsible for maintaining the headcount on her team. Mr. Hines assigned monthly sales quotas for sales managers. He based the quotas on the types of sales representatives on each team. The monthly quota for major account executives was $75,000. For senior account executives, the monthly quota was $40,000. The monthly quota for account executives was $30,000. Mr. Hines conducted bi-monthly two-day sales meetings with all of the sales managers and office administrators to discuss their sales progress. Managers were expected to discuss their completed and forecast sales. Mr. Hines required managers to stand before the group to report on their progress and discuss any issues with quotas or goals based on month-to-date, quarter-to-date, and year-to-date expectations. Mr. Hines also considered "sales in the pipeline," or anticipated sales, to help determine sales trends for the next 90 days and in evaluating sales personnel. In addition, Mr. Hines conducted weekly sales calls with the sales managers to review their sales progress. During the calls, sales managers were to identify which sales they believed had a strong, "95 percent chance," of closing. Mr. Hines also discussed the performance of each individual sales representative on a manager's team during the calls. The discussions included examination of reasons for non-performance. Around the time of the reorganization, Mr. Hines transferred Senior Account Executive Tina Vargas in the Ocala territory from Mr. Arritt's team to Ms. Gleason's team. Mr. Hines made this transfer, in part, to help Ms. Gleason achieve her headcount and sales quotas. At the time of the transfer, Vargas expected to complete a large, one-time $320,000 sale on which she had been working. Mr. Hines anticipated that this sale would help Ms. Gleason achieve her sales quotas. Ms. Vargas was not located in the Daytona Beach/Melbourne territory. But Mr. Hines expected that Ms. Vargas would require minimal supervision because she was an experienced sales representative. Other managers also supervised sales representatives in multiple or large territories. For example, Cecil Harrelson supervised sales representatives in four areas. They were Orlando, Melbourne, Daytona, and Gainesville. Sales Manager Derrick Stephenson supervised a substantially larger geographic area than Ms. Gleason. His area reached from Key West to West Palm Beach. After the reorganization, Ms. Gleason's sales productivity declined. She also was not maintaining her headcount. The other Sales Managers experienced the same problems initially. But they recovered from the changes. Ms. Gleason never did. For the seven-month period of April through October, Ms. Gleason's record of attaining her quota was as follows: April - 35% or $70,867 in sales May - 196% or $385,452 in sales (Due to Ms. Vargas joining the team with a pending sale; 23% without Ms. Vargas.) June - 31% or $61,136 in sales July - 8% or $12,948 in sales August - 12% or $19,521 in sales September - 11% or $18,261 in sales October - 23% or $36,811 in sales During that same period, Ms. Gleason was the lowest performing sales manager in July (19 points less than the next lowest), August (14 points less than the next lowest), September (33 points less than the next lowest), and October (6 points less than the next lowest). She was the second lowest in June when Mr. Comancho was the lowest with 25% attainment compared to Ms. Gleason's 31%. The attainment percentages for all of the sales managers varied. Each had good months and bad months. After April and May, Ms. Gleason, however, had only bad months. For the months June through October, Ms. Gleason was the only sales manager who did not achieve 50% attainment at least twice, with two exceptions. They exceptions were Mr. Comancho and Mr. Rodham. Mr. Comancho chose to return to an account executive position after Mr. Hines spoke to him about his performance. Mr. Rodham joined Ricoh in October and attained 52% of quota that month. In addition to steadily failing to meet 50% of her quota, Ms. Gleason failed to maintain a full headcount for the same period of time. No male sales managers in Ricoh's East Florida Marketplace had similar deficiencies in meeting sales quota. There is no evidence that any male sales managers in Ricoh's East Florida Marketplace had similar failures to maintain headcount. There is no evidence of sales manager productivity or headcount maintenance for any of Ricoh's other markets. Ms. Gleason tried to improve her headcount by hiring additional sales personnel. She conducted a job fair with the assistance of Ricoh's recruiter. They identified 19 applicants for further consideration and second interviews. Mr. Hines reviewed and rejected all 19. They did not meet his requirement for applicants to have outside sales experience and a history of working on a commission basis. Ms. Gleason was aware of Mr. Hines' requirements. But she interpreted them more loosely than he did. Mr. Hines helped Ms. Gleason's efforts to improve her headcount by transferring four sales representatives to her team. At Ms. Gleason's request, Mr. Hines also reconsidered his rejection of one candidate, Susan Lafue, and permitted Ms. Gleason to hire her. Still Ms. Gleason was unable to reach the expected headcount. David Herrick, one of the individuals who Mr. Hines assigned to Ms. Gleason's team, had already been counseled about poor performance. Mr. Hines directed Ms. Gleason to work with Mr. Herrick until he sold something. This was a common practice with newer sales representatives. Mr. Herrick had also been assigned to male sales managers. Mr. Hines asked Ms. Gleason and Mr. Herrick to bring him business cards from their sales visits. He often did this to verify sales efforts. After Mr. Hines reviewed the cards, he threw them in the trash. But he first confirmed that Ms. Gleason had the information she needed from the cards. Mr. Hines often threw cards away after reviewing them to prevent sales representatives providing the same card multiple times. Ricoh's Human Resources Policy establishes a series of steps for disciplinary action. The first is to provide an employee a verbal warning. The next two steps are written warnings before taking disciplinary action. Mr. Hines gave Ms. Gleason a verbal warning about her performance. He spoke to her about improving sales production and headcount. Ms. Gleason's performance did not improve despite her efforts. Later, Mr. Hines gave Ms. Gleason a written warning in a counseling document dated August 31, 2009. The document stated that her performance had not been acceptable. The counseling memorandum directed Ms. Gleason to reach 65% of her quota. It also said that she was expected to maintain a minimum of seven people on her team and work in the field with her sales representatives at least four days a week. Finally the memorandum advised that failure to perform as directed would result in "being moved to sales territory." Around the end of August 2009, Mr. Hines began counseling Israel Camacho, a male, about his performance. Mr. Comancho decided to return to an account executive position. In September Ms. Gleason achieved 11% of her quota. She also did not maintain her headcount. September 24, 2009, Mr. Hines gave Ms. Gleason a second written counseling memorandum. It too said that her performance was unacceptable. The memorandum required her to produce 80% of her quota and maintain a minimum of seven people on her team. It also cautioned that failure to meet the requirements would result in "being moved to sales territory." Ms. Gleason acknowledges that she understood that if she did not perform to the expected levels that she could be demoted. After the written warning of September 24, 2009, Ms. Gleason's performance continued to be unacceptable. For October, Ms. Gleason had $23,811 in sales for a total attainment of 23% of quota. Again, she did not maintain her team's headcount. Sometime during the June through October period, Mr. Hines criticized Ms. Gleason's management style, saying that she "coddled" her personnel too much. He also directed her to read the book "Who Moved My Cheese" and discuss it with him and consider changing her management style. Mr. Hines often recommended management books to all managers, male or female. There is no persuasive evidence that Ms. Gleason is the only person he required to read a recommended book and discuss it with him. Mr. Hines' comments and the reading requirement were efforts to help Ms. Gleason improve her performance and management. During the June through October period, Ms. Gleason yawned during a manager meeting. She maintains that Mr. Hines' statement about her yawn differed from the words he spoke to a male manager who fell asleep in a meeting. The differences, she argues, demonstrated gender discrimination. They did not. In each instance Mr. Hines sarcastically commented on the manager's behavior in front of other employees. He made no gender references. And the comments were similar. Sometime during the June through October period Mr. Hines also assigned Ms. Gleason to serve in an "Ambassador" role. "Ambassadors" were part of a Ricoh initiative to develop ways to improve the customer experience. There is no evidence that males were not also required to serve as "Ambassadors." And there is no persuasive evidence that this assignment was anything other than another effort to improve Ms. Gleason's management performance. Also during the June through October period Ms. Gleason proposed hosting a team building event at a bowling alley. Someone in management advised her that the event could not be an official company sponsored event because the bowling alley served alcohol. Again, there is no evidence that males were subjected to different requirements or that the requirement was related to Ms. Gleason's gender. During this same period, Ms. Gleason received written and oral communications from co-workers commenting on her difficulties meeting Mr. Hines' expectations. They observed that she was having a hard time and that they had seen Mr. Hines treat others similarly before discharging them. Nothing indicates that the others were female. These comments amount to typical office chatter and indicate nothing more than what the counseling documents said: Mr. Hines was unhappy with Ms. Gleason's performance and was going to take adverse action if it did not improve. On November 12, 2009, Ms. Gleason sent an email to Rhonda McIntyre, Regional Human Resources Manager. Ms. Gleason spoke to Ms. McIntyre that same day about her concerns about Hines' management style. Ms. Gleason said she was afraid that she may lose her job and that she was being set up for failure. Ms. McIntyre asked Ms. Gleason to send her concerns in writing. Ms. Gleason did so on November 13, 2009. Ms. Gleason's e-mail raised several issues about Mr. Hines' management. But Ms. Gleason did not state in her email or her conversations that she was being discriminated against or treated differently because of her gender. Ms. Gleason never complained about gender discrimination to any Ricoh representative at any time. On December 1, 2009, Mr. Hines demoted Ms. Gleason from sales manager to senior account executive. He assigned her to work on Mr. Arritt's team. Ms. Gleason had no issues with Mr. Arritt and no objection to being assigned to his team. Mr. Hines has demoted male sales managers to account executive positions for failure to attain quotas or otherwise perform at expected levels. The male employees include Ed Whipper, Kim Hughes, and Michael Kohler. In addition, Mr. Comancho was the subject of counseling before he chose to return to an account executive position. After Mr. Hines demoted Ms. Gleason, he promoted Diego Pugliese, a male, to sales manager. He assigned Mr. Pugliese the same territory that Ms. Gleason had. When Mr. Hines assigned Ms. Gleason to Mr. Arritt's team, Mr. Hines instructed Mr. Arritt to give Ms. Gleason two territories with substantial "machines in field" (MIF) to buttress Ms. Gleason's opportunity to succeed in her new position. Mr. Arritt assigned Ms. Gleason the two territories that records indicated had the most MIF. Ms. Gleason asserts that the preceding account executives maintained the records for the area poorly and that the new territories had no greater MIF than other areas. That fact does not indicate any intent to discriminate against Ms. Gleason on account of her gender. In January 2010, after Ms. Gleason's demotion, Mr. Harrelson invited Ms. Gleason to attend a non-company sponsored, employees' poker party. She had been invited to other employee poker parties and attended some. Mr. Harrelson withdrew the invitation saying that Mr. Hines was attending and that Mr. Harrelson thought Ms. Gleason's presence would be uncomfortable. Mr. Harrelson did not say that Mr. Hines had made this statement. And Mr. Harrelson was not Ms. Gleason's supervisor. Nothing about the exchange indicates that Ms. Gleason's gender had anything to do with withdrawal of the invitation. The incident seems to be based upon the natural observation that Mr. Hines might be uncomfortable socializing with someone he had recently demoted. After her demotion, Ms. Gleason asked Mr. Arritt to go with her on a "big hit" sales call. Ms. Gleason claims that Mr. Arritt told her that Mr. Hines told him not to go on sales calls with her. That may have been Mr. Arritt's interpretation of what Mr. Hines said. Mr. Hines had told Mr. Arritt that because Ms. Gleason was an experienced sales representative Mr. Arritt should focus his efforts on the less experienced sales representatives on his team. This was a reasonable observation. There is no evidence indicating that Mr. Hines treated Ms. Gleason differently in this situation than he had similarly experienced males. Ms. Gleason brought this issue to Ms. McIntyre's attention. The issue was resolved. Mr. Hines told Mr. Arritt that if Ms. Gleason wanted more assistance then Mr. Arritt should attend meetings with Gleason and provide any other assistance she believed she needed. Ms. Gleason had no other issues with Mr. Hines during the remainder of her employment. On March 31, 2010, Ms. Gleason submitted a memorandum stating that she was resigning "effective immediately." There is no evidence of derogatory or harassing comments by Mr. Hines or any other Ricoh representative toward Ms. Gleason referring to gender. There is no evidence of sexually suggestive comments or actions by a Ricoh representative. There also is no evidence of physically intimidating or harassing actions by any Ricoh representative.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition of Tamara A. Gleason in FCHR Case Number 2010-01263. DONE AND ENTERED this 18th day of February, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kimberly A. Gilmour, Esquire 4179 Davie Road, Suite 101 Davie, Florida 33314 David A. Young, Esquire Fisher & Phillips LLP 300 South Orange Avenue, Suite 1250 Orlando, Florida 32801 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The American Health and Rehabilitation Center, Inc., is a nursing home located in Plantation, Florida. The subject administrative hearing was requested by Petitioner in order to settle a dispute as to $17,356 disallowed by the Respondent, Department of Health and Rehabilitative Services, under Medicaid guidelines. The disputed disallowed costs were as follows: $6,855 - Lawn Maintenance; $1,975 - Telephone Advertising and long distance calls; $6,470 - Owner/Administrator auto rental; and $2,056 - Auto Expense for the year ending June 30, 1976. (a) Yellow Pages Advertising Petitioner contends: that the yellow pages advertising had never been disallowed before and having been paid under HIM 15 should now be paid. Respondent contends: that only a telephone listing in the yellow pages is allowable; that a display advertisement is not compensable, and that even though such display advertising might have been paid in the past, it should not have been paid and should not be allowed as a result of this hearing. Lawn/Landscape Maintenance Petitioner contends: that there was a "bookkeeping error" in the amount of $2,853 charged for additional trees and plants and agrees that amount should not have been charged to "maintenance" expense; that the maintenance service that was utilized was less expensive for the services they required and gave better protection against loss of trees and other lawn and landscaping materials; that the equipment needed to service the lawn would not be supplied by the men they could hire. Respondent contends: that a fee of $12,000 for lawn and landscape maintenance is not supportable and that the occupancy of the home had always been full and therefore did not improve with the tripling of annual landscaping expenses; that there is a poor cost-benefit ratio with such charges and that a full time maintenance man could have been employed at near minimum wage to care for the lawn. Undocumented Use of Automobile Petitioner contends: that they had been previously allowed such costs and were audited each year and they had no way of knowing that they would be disallowed for the subject cost period; that they had some staff who used the cars for errands; that automobile expense is an acceptable business expense. Respondent contends: that transportation of Medicaid patients to physicians was arranged by direct payment to third party transportation providers or by having the physicians see the patients at the nursing home; that because of the lack of documentation by Petitioner there was no way to determine the business and non-business endeavors which included the use of the automobile and therefore the full amount should have been disallowed.. The yellow page display was designed primarily to advertise the nursing home to those seeking nursing home care. Evidence presented showed that Petitioner was charged a sum of $700 per month or $8,400 per year. Whereon Petitioner claimed $12,000. The lawn covers approximately 1-1/2 acres. No documentation was presented or testimony established as to the portion of the disallowed automobile use attributable to business use, the Mercedes used by the Petitioner and the complete lack of documentation as to its business use was not substantiated.
Recommendation Allow telephone listing expense only and $700 per month for lawn maintenance. Disallow the undocumented automobile use. Unwarranted payments for advertisements, excessive lawn care and undocumented automobile expenses that have been made in the past is no reason that such undue payments should be continued. DONE AND ENTERED this 2nd day of August 1978 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August 1978. COPIES FURNISHED: James Mahorner, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Miss Patricia E. Hintz Administrator American Health and Rehabilitation Center 7751 West Broward Boulevard Plantation, Florida 33324
Findings Of Fact On or about February 14, 1996, Respondent, the Department of Labor and Employment Security (DLES), issued an Invitation to Bid, bid number 96-036-VA soliciting competitive bids for Braille embossers and Braille software. More specifically, the bid specifications describe the purpose of the invitation ...to obtain competitive bid prices for heavy duty desktop interpoint braillers; braille translation software licenses, diskettes, and documentation; sound enclosures (if necessary to meet bid specifications); and warranty/maintenance on same for the Department of Labor and Employment Security, Division of Blind Services. (Respondent exhibit no. 3) The specifications required, in pertinent part, that the bidder include three references of current owners of the printer model bid, including one owner who had operated the equipment for more than six months. The specifications also provided that after initial bid packages were reviewed and recommended, but prior to award of the bid, an on-site demonstration of the printer must be enacted by the selected vendor. Specifications for the printer included these relevant requirements: * * * Printer must be an interpoint printer - simultaneous embossing of both sides of a sheet. * * * Printer must print at a minimum speed of 40 characters per second (cps), per side, or 120 pages an hour, and a minimum of 40 braille characters per line, per side of paper. * * * If the noise level of the printer bid exceeds 60 dba, a sound enclosure must be included as an essential component of the bid package, one enclosure included per printer bid (per subsection "B" below). Total unit bid - with sound enclosure if necessary - must operate (printing and/or standing) at no more than 60 decibels. * * * (Respondent's exhibit no. 3) An addendum to the Invitation to Bid was issued on March 19, 1996. The addendum changed the bid opening to April 2, 1996 and amended the printer specification related to minimum speed, as follows: Printer Specifications (B) (Page 10 of 18) Last paragraph on the page is to read as follows: "Printer must print at a minimum speed of 40 characters per second (CPS), per side, or 120 total pages per hour; with a minimum of 40 braille characters per line per side of paper." (Respondent's exhibit no. 3) Several firms responded to the invitation. Intervenor, Easy Talk, submitted four separate bids for different equipment at different prices. One of Easy Talk's bids was initially selected as the apparent low bid, but was then disqualified for lack of references. Petitioner Enabling Technologies' was the next lowest bid but it, too, was disqualified when its references revealed that none owned the machine being bid by Petitioner, the Juliet ET. Instead, they owned the Juliet model. Petitioner does not dispute these facts nor does it dispute that its bid was appropriately disqualified. Rather, Petitioner contends that its competitor, Easy Talk, should also be disqualified because its equipment does not meet the bid specifications regarding printer speed and noise level. As provided in the Invitation to Bid, compliance with the bid specifications was determined by an on-site demonstration monitored by Respondent's designated staff. Respondent interpreted its printer speed specifications to mean that the printer must achieve 40 characters per second, per side, or 120 total pages per hour (one or the other). The addendum issued on March 19, 1996 was intended, in part, to clarify that requirement. Respondent also interpreted the term "page" to mean one side of a sheet of paper. Braille pages are commonly numbered on each side of a sheet. Respondent determined that Easy Talk's printer met the speed requirement when it produced 198, single side, pages per hour. Petitioner contends that "page" means a double-sided sheet, and that Easy Talk therefore only produced 99 pages, not the required minimum 120 total pages in an hour. Petitioner's argument is based on the fact (uncontroverted) that an interpoint Brailler is a Braille printer which produces simultaneous embossing on both sides of a sheet. (See paragraph 3, above, citing this requirement in the specifications.) Petitioner's argument is also bolstered by the fact that 40 characters per second, per side, translates to more than 120 single sides per hour. In spite of the reasonableness of Petitioner's interpretation, and the notion that Respondent could have used the term "side" if it meant side, rather than "page," there is no evidence that Respondent's interpretation is patently wrong or that Respondent contrived the interpretation in order to insure that Easy Talk would meet the specifications. The noise level of Easy Talk's printer was measured by Respondent's Division of Blind Services employee, Sylvia Voyles, who developed the specifications for the bid at issue. Ms. Voyles conducted the test with a small sound meter, hand-held or capable of being mounted on a tripod, purchased from Radio Shack. She relied on the sound meter's manufacturer's instructions in interpreting the results. According to the instructions, the meter is accurate to plus or minus two decibels when measuring a sound level of 114 decibels. Ms. Voyles observed that the wand on the meter did tend to waver back and forth within a range of two to four decibels. In conducting the test on Easy Talk's equipment, Ms. Voyles observed the wand to waver between 59.5 and 62 decibels. She rated the equipment at the high range, 62, applied the plus or minus two accuracy standard, and concluded that the equipment met the 60 decibel maximum specification. When she conducted her test on Petitioner's equipment, Ms. Voyles used the same testing methodology as described above and concluded that it achieved a 58 decibel rating. Again, there is no evidence that the testing process was fatally flawed, unevenly applied, or otherwise devised to assure that Easy Talk could pass.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that a final order be entered dismissing Petitioner's protest. DONE and ENTERED this 11th day of September, 1996, in Tallahassee, Florida. MARY CLARK, 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 11th day of September, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-3265BID To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-13. Adopted in substance. 14.-15. Rejected as immaterial. 16.-25. Adopted in substance. Rejected as immaterial. Respondent's Proposed Findings of Fact. 1.-2. Adopted in substance. 3.-6. Rejected as unnecessary, except for Petitioner's concurrence that its bid was properly disqualified. 7.-21. Adopted in substance. COPIES FURNISHED: Sonja P. Mathews, Senior Attorney Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Robert A. Schenk, President Enabling Technologies Company 3102 Southeast Jay Street Stuart, Florida 34997 Kerey Carpenter, Esquire 1228 North Adams Street Tallahassee, Florida 32303
