The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Bonita Sneiderman, a/k/a Bonita Mattingly (Ms. Mattingly), is a Caucasian female born March 17, 1953. At the time of the events complained about in this proceeding, Ms. Mattingly was 53 years old. Ms. Mattingly was then known as Ms. Sneiderman and was single. Ms. Mattingly married and changed her name shortly before the hearing in this case. Dillards, Inc., is a corporation that operates a chain of department stores, referred to as Dillards. In many of the Dillards stores, there are styling salons. The Dillards department store at the Orange Park Mall in Orange Park, Florida is referred to as Store #232. During the time period relevant to this case, Susan Konstantatos was the Salon Manager of the salon at Store #232. On July 26, 2005, Ms. Konstantatos attended a manager's meeting, in which she received and discussed new policies for the salons. One such policy dealt with the schedules for salon employees and stated that all new hires would work five-day, full-time schedules. This policy, however, did not necessarily apply to employees already employed at the salons. For example, employees that worked in the Iveys salon before Dillards took over what used to be the Iveys store were considered to be "grandfathered in." Dillards honored whatever scheduling terms the employees had negotiated when taking their positions with Iveys. George Craywick, Cynthia Anderson and Marie Cox were three such salon employees. In September 2005, Ms. Mattingly applied for and received a position as a hair stylist in Dillards Store #232. Her application for employment with the store indicates that she applied for a full-time position. The application also indicates that she was hired for a full-time position. On September 21, 2005, Petitioner attended a new employee orientation session and signed the new employee orientation sheet, acknowledging that she had received orientation on Respondent's Associate Work Rules and Attendance Policy. Petitioner also signed an Associate Acknowledgment Form indicating that she received and understood Respondent's Associate Work Rules and General Policies. The Associate Work Rules and General Policies for Dillards reiterated the importance of attendance and provided notice that a "no show" would not be tolerated and would result in termination of employment. Among the stylists' job duties was an activity called "instant eventing." Instant eventing was an activity designed to generate interest in using the salon's services. Stylists could choose the type of instant eventing they would perform, such as handing out business cards, setting up a paraffin wax table and offering demonstrations, or setting up a color table with hair color swatches. Petitioner's chosen method of instant eventing involved setting up the paraffin wax demonstration. Instant eventing not only created interest in the salon, but hopefully helped new stylists to establish a following for their services. Stylists were expected to participate in instant eventing when they had no appointments. As a consequence, the more customers a stylist had, the less time he or she had to devote to instant eventing and the less stylists were expected to participate in the activity. Petitioner complains that George Craywick was not required to instant event and claims that she never saw him participate in any instant eventing activity. Mr. Craywick had more customers than any other stylist working at the Dillards salon. As a result of the number of repeat customers he served, he did not have the need for or the opportunity to engage in the same amount of instant eventing that Petitioner had. There is evidence that Mr. Craywick participated in a color table as an instant event, but it is unclear whether his participation in this activity was during the time that Petitioner was employed. Petitioner admitted that while she never saw Mr. Craywick participate in instant eventing, she had no knowledge as to whether he participated at times when she was not working with him. During May 2006, all of the salon's stylists at Store #232 were scheduled to work five days per week and one Sunday per month. When an employee worked on Sunday, Ms. Konstantatos attempted to schedule another day off for the employee during that week. Often the day off would be Monday, but the coverage needs of the salon would control. Mr. Craywick often worked on his scheduled days off at Ms. Konstantatos' request to ensure overage for the salon. Others sometimes did the same. Petitioner was scheduled to work Sunday, May 7, 2006. On or about May 1, 2006, Ms. Konstantatos checked the posted schedule and saw that Petitioner's name had been crossed off the schedule for Monday, May 8, 2006. Ms. Konstantatos had not removed Petitioner from the schedule and assumed that Petitioner had crossed her name off because she was working Sunday. Ms. Konstantatos needed Petitioner to work Monday, May 8, 2006, in order to ensure that the salon was adequately staffed. Petitioner had not worked the previous Monday. Ms. Konstantatos left Petitioner a note stating that Petitioner needed to work on Monday, May 8, 2006. After receiving the note, Petitioner called Ms. Konstantatos on Wednesday, May 3, 2006, and told her she could not work on Monday because she had made arrangements to go out of town that day. Petitioner's regular day off is Tuesday. Ms. Konstantatos advised that she needed Petitioner to work Monday to make sure that there was proper coverage for the salon, but that she could give Petitioner Wednesday off so that her days off would be consecutive. Petitioner insisted that she could not work on Monday, May 8, 2006. Ms. Konstantatos informed her that if she did not work on Monday, she would be considered to have abandoned her job and her employment would be terminated. Whether or not she worked on Monday, May 8, 2006, remained Petitioner's choice. Petitioner worked Thursday through Saturday, May 4-6, 2006. On Saturday evening, Petitioner packed up her belongings and left a note indicating that she had arranged for someone else to cover her shift on Sunday and would not be at work on Monday. She never returned to work because she considered herself to have been fired. On May 11, 2007, Respondent terminated Respondent for job abandonment. Between September 2005 and May 2006, Respondent terminated several other salon employees for job abandonment or excessive absenteeism. Those employees were both male and female, married and single. Their ages ranged from 21 to 35. After Petitioner's termination, Ms. Konstantatos hired Debra Doss as a stylist. At the time she was hired, Ms. Doss was a 49-year-old single female.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of discrimination. DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of October, 2007. COPIES FURNISHED: Bonita Y. Mattingly 2040 Wells Road, Apartment 2-E Orange Park, Florida 32073 Grant D. Petersen, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto Respondents Rene L. and Carol A. Couture have been licensed to practice cosmetology and operate a cosmetology salon in this state with licenses numbered CL-0116811, CL-0122446 and CE-0031848, respectively. Respondents have owned and operated a cosmetology salon named Rene Couture World Champion Stylist Image Makers (Image Makers) located at 1515 22nd Avenue North in St. Petersburg at all times material hereto. Respondent Nancy Winch is not, at all times material hereto has not been, licensed to practice cosmetology or barbering in this state. Respondent Winch has been employed at Image Makers as the receptionist and manager at all times material hereto. In her position, Respondent Winch is responsible for making appointments for from ten to thirteen licensed cosmetologists who work at Image Makers, welcoming customers, ordering hair care products used and sold at retail in the salon, and also keeps the books for Image Makers. On March 28, 1984, the Board of Cosmetology issued a Final Order imposing a $100 administrative fine against Rene Couture following a stipulated settlement of a prior case involving the practice of cosmetology by Nancy Winch at Image Makers on or before to June 3, 1983. The testimony produced at the hearing concerning whether Nancy Winch performed cosmetology services at Image Makers between June 3, 1983 and August 1984 conflicts. Two former employees and a customer at the salon testified that Winch had performed these services. and four current employees, one former employee and three customers testified that she had not practiced cosmetology during this time. Respondents deny that she continued to practice cosmetology after June 3, 1983. After weighing the evidence presented and the credibility of a witnesses who testified, it is the finding of the undersigned Hearing Officer that Petitioner has not established that Nancy Winch performed cosmetology services. between June 3, 1983 and August 1984. It is unlikely that a receptionist/manager of a salon that employs ten to thirteen cosmetologists and who handles all appointments for those cosmetologists, orders all of the products used in the salon and also handles the bookkeeping, would have time to also shampoo and rinse customers' hair. The most persuasive and apparently unbiased testimony was that of the customers of Image Makers. While one customer, Helen Packett, testified that Winch had shampooed her hair once in 1984, she was uncertain and vague as to when this occurred. On the other hand, two customers, Barbara Earle and Sharon Calkins, who have each been going to Image Makers at least once a week for four years testified that Winch acted solely as the receptionist/manager each time they went to the salon. Petitioner also presented the testimony of former employee, Krista McLean, who had been fired in March 1984 for not reporting to work, and Patricia Wolfe, also a former employee who resigned in June 1984. Respondent presented the testimony of current employees Carl Galambos, Frank Lasito, Pam Wolf and Debra Antunovich, and former employee Walta Gaskill. The most persuasive and unbiased testimony from these current and former employees was that given by Gaskill who was employed at the salon during the times in question and could see the reception area from his station. He testified that the reception area was constantly busy and Winch was always in that area acting as the receptionist.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued dismissing the charges against all Respondents contained in the Administrative Complaints filed herein. DONE and ENTERED this 8th day of August, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1985. COPIES FURNISHED: Myrtle Aase, Executive Director Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32301 Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 A. Dawn Hayes, Esquire 333-31st Street North, Suite 14 Post Office Box 13188 St. Petersburg, Florida 33713 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the Respondent is an employer within the meaning of Chapter 760, Florida Statutes?
Findings Of Fact Bianca King was an employee of a dry-cleaning store located at 1660 North Monroe Street and using the trade name Blue Ribbon Cleaners. It was managed by Timothy Weber, who discharged the Petitioner for a fight with a fellow employee. The store had eight to nine employees. The Petitioner had worked for another Blue Ribbon Cleaners store located on Capital Circle prior to her employment at the 1660 North Monroe location. The Petitioner did not present any other evidence on how many employees the Respondent had. The Respondent presented the testimony of David Wallenfelsz, who prepares the paychecks for the employees of the several Blue Ribbon Cleaner stores in the area. He identified a check used by the store located on North Monroe. This check (Respondent's Exhibit 1) was imprinted with the name, Wally of Tallahassee, Inc., and it is representative of the checks used to pay payroll and other expenses at that store. Wally of Tallahassee, Inc., is the separate corporation that owns the North Monroe store. David Wallenfelsz also identified a check used by the Capital Circle store, which has 25 employees. This check (Respondent's Exhibit 2) was pink in color and was imprinted with Wallenfelsz, Inc. Wallenfelsz, Inc. is a separate corporation, although some of the shareholders of Wally of Tallahassee, Inc. are also shareholders of Wallenfelsz, Inc. David Wallenfelsz also identified a check used by the East Lafayette store. This check (Respondent's Exhibit 3) was gray-green in color and is imprinted with the name Blue Ribbon Cleaners, Inc. This store has 25 employees. Some of the shareholders in Wally of Tallahassee, Inc. and Wallenfelsz, Inc. are shareholders in Blue Ribbon Cleaners, Inc. Timothy Weber was called to testify. Weber was the manager of the North Monroe store who discharged the Petitioner. He has managed that store for twelve years, and there is no one above him. He is totally in charge of hiring and firing at that store. The store is its own cost center. He makes independent management decisions to include the purchase of equipment and supplies and earns bonuses for exceeding expectations in earnings. The number of its employees, about eight, are dictated by the amount of its business. Weber was not present when the fight between the Petitioner and another employee occurred. He was told about it when he returned. He terminated both employees, the Petitioner, who is black, and the other employee, who was white. He did not clear his decision with the principal stockholders. Michael Wallenfelsz was called to testify. He is a major stockholder in all three corporations, together with his brother, Greg. He identified documents (Respondent's Exhibit 4) which the stores must file confirming to the state the hiring of employees. Each store files a separate report and each store has a separate federal identification number. He confirmed Weber's testimony that each store was a separate profit center. Each store has its own plant; each store has its own lease; and each store has a separate manager, who is free to hire and fire without clearing their decisions with him or his brother. The books of account treat each store separately and funds from the three operations are not commingled. Employees who want to transfer from one store to another must resign from one store and be accepted at another store, where they lose seniority and serve a new probation period. Michael Wallenfelsz testified about the reasons for operating as separate corporations. He stated that this had nothing to do with avoiding jurisdiction of Chapter 760, Florida Statutes. He stated, as did his father, David, that two of the stores have about 25 employees, well within the jurisdictional limits. There was no evidence presented to show that the method of operation was a subterfuge to avoid jurisdiction by FCHR.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Commission enter its final order dismissing the Petitioner's Petition for Relief. DONE AND ENTERED this 24th day of November, 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 24th day of November, 2004. COPIES FURNISHED: Bianca King 509 East Magnolia Drive Apartment 2050 Tallahassee, Florida 32301 Mark S. Levine, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether or not Petitioner (complainant) is entitled to recover $1,340.50 or any part thereof against Respondent dealer and Respondent surety company.
Findings Of Fact Petitioner is a grower of watermelons and qualifies as a "producer" under Section 604.15(5) F.S. Respondent Steve Helms Fruit Co., Inc. is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S. Respondent Ohio Casualty Insurance Co. is listed as surety for Steve Helms Fruit Co., Inc. The amount and period of the bond have not been established. The time material to the amended complaint is June, 1994. Two or three weeks before Petitioner's melons were ready for harvest, Steve Helms personally came to Petitioner's home and requested to ship Petitioner's melons for ultimate retail sale. Petitioner requested to be paid "up front." Mr. Helms would not agree to pay all the money "up front" but agreed to pay some. He also agreed to pay within 14 days of the first shipment. Petitioner had had a bad experience two years previously, so he got Mr. Helms to promise to "clean up" his field. This expression is subject to some interpretation, and although Petitioner initially stated that the agreement was for Respondent broker-shipper to buy all his melons regardless of condition, Petitioner later modified his statement to say that Mr. Helms only promised not to take the best melons and leave the rest. Harvesting began May 15, 1994. Until June 10, 1994, Petitioner's usual contact with Respondent broker- shipper was Frank Favuzza, who oversaw all weighing and loading and assessed the Petitioner's melons on behalf of Respondent broker-shipper. On June 10, 1994, Mr. Helms was again personally in the field. Petitioner told Mr. Helms that he had to get the remainder of the melons off the field by Sunday, otherwise the heat would ruin them. Mr. Helms said he would wait until Monday. Petitioner believes that if the melons had been harvested by Sunday, June 12, 1994, three truckloads could have been harvested. On Monday, less than a full truckload was in good enough condition to be loaded onto a truck. A lot of melons were going bad and were left in the field to rot. On Tuesday, June 14, 1994, Petitioner's melons were weighed at Romeo, Florida and the poundage established at 29,330 pounds. Frank Favuzza estimated to Petitioner that his melons would only bring $.04/lb. From this conversation, related by Petitioner, it may be clearly inferred that Petitioner knew he would not be paid until after Respondent broker-shipper received payment from the ultimate retailer at the other end of the transaction. Petitioner's amended complaint alleged the amounts due as follows: "On June 1, 1994, #92111, 700 lbs. at $.07 equals $49.00, not $490.00; June 3, 1994, #92117, 900 lbs. at $.07 equals $63.00, not $630.00; and June 3, 1994, #92120, 790 lbs. at $.07 equals $55.30, not $553.00. Therefore Item (12) Complaint Total is amended to $1,340.00." The amendments did not alter the original claim for 6-14-94, invoice 92157 for 29,330 lbs. of melons at $.04 for $1,173.20. There was no claim for the melons that rotted in Petitioner's field. Weight tickets and Respondent's corresponding broker-shipper's bills of lading were admitted in evidence. These showed the following amounts were received by Respondent broker-shipper: 6/1/94 INVOICE 92111 46,020 net weight melons 6/3/94 INVOICE 92117 45,580 net weight melons 6/3/94 INVOICE 92120 44,720 net weight melons 6/14/94 INVOICE 92157 29,330 net weight melons Petitioner testified, without refutation, that he was present at each weighing and that he had agreed to take $.07 per pound on all loads except for the June 14, 1994 load for which he was claiming $.04 per pound. The bills of lading support Petitioner's testimony as to the price per pound. The bills of lading also clearly show that the price per pound was "to farm minus labor." This notation means that the net amount to be paid Petitioner by Respondent was subject to a prior deduction for labor, but it cannot reasonably be inferred to include a deduction for shipping. Petitioner's last load of 29,330 lbs. of melons weighed on June 14, 1994 was less than a full truckload, so Respondent added melons from another farm to that truck to make up a full load. Respondent broker-shipper did not pay Petitioner for 700 pounds of the June 1, 1994, invoice 92111 truckload; for 900 pounds of the first June 3, 1994 invoice 92117 truckload; for 790 pounds of the second June 3, 1994 invoice 92120 truckload; or for any (29,330 pounds) of the June 14, 1994 invoice 92157 truckload, upon grounds that those melons were not saleable at their destination. Petitioner put in evidence Exhibit P-3 which is an accounting Respondent had sent him. It shows that Respondent broker-shipper had deducted $690.30 for labor on invoice 92111 and claimed 700 pounds could not be sold; had deducted $683.70 for labor on invoice 92117 and claimed 900 pounds could not be sold; had deducted $670.80 for labor on invoice 92120 and claimed 790 pounds could not be sold; and had paid Petitioner nothing on a June 14, 1994 truckload, invoice 92159. Invoice 92157, which corresponds to Petitioner's June 14, 1994 partial truckload of 29,330 pounds of melons, is not listed or otherwise explained in the exhibit. The exhibit is conclusionary and inexplicably is dated 1993. There is no back-up evidence to support Respondent's making these deductions. No inspection certificate or labor charges are in evidence. Petitioner's initial complaint, which he put in evidence as P-1, constitutes an admission by him. In the complaint, Petitioner contended (1) that he was selling "direct" to Respondent broker-shipper; (2) that he was selling "f.o.b."; and (3) that he was selling "Fob shipping point excectance (sic) after final inspection." Petitioner also stated therein that he was given an inspection sheet showing 46,310 lbs. of watermelons had failed inspection and he did not feel the melons that failed inspection were his melons because Frank Favuzza approved of all melons loaded from Petitioner's field and the inspection sheet did not say that the bad melons were Petitioner's melons. Somewhat contrariwise, Petitioner testified at formal hearing that he had asked Respondent broker-shipper for a government inspection certificate showing that his melons were bad and never got it. From the credible evidence as a whole, it is inferred that Petitioner sold his watermelons on the June 14, 1994 truckload at $.04 per pound contingent upon the melons arriving at their ultimate destination in saleable condition per a federal inspection. It is further inferred that the prior three loads at issue also were sold contingent upon their arriving in saleable condition. The evidence as a whole also supports a finding that Petitioner's melons left the weigh station in a condition capable of being sold for the respective prices agreed upon between Petitioner and Respondent broker-shipper. Any deterioration of melons between June 10, 1994 when Petitioner requested that the broker-shipper take the last load and June 14, 1994 when the last load actually was weighed and shipped is attributable to Respondent broker-shipper, but that fact is not significant since the lesser rate of $.04/lb. was agreed upon prior to shipping and after Respondent broker-shipper had seen and approved the loaded melons. Petitioner's foregoing evidence of delivering saleable quality melons to Respondent broker-shipper is unrefuted. The presumption is thereby created that but for some failure of Respondent broker-shipper, the melons would have arrived at their ultimate destination in saleable condition. There is no evidence of record to support Respondent's deductions for "labor," or for melons which allegedly could not be sold upon delivery at the ultimate destination. Petitioner moved ore tenus to further amend his complaint to include a prayer for reimbursement for the cost of the melons which rotted in his field and became unsaleable between June 10 and June 14, 1994 due to Respondent broker-shipper's delay in loading and to assert a claim for interest on the $1,340.50 claim. This motion was denied as too late.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture enter a final order awarding Petitioner $1,340.50, and binding Respondents to pay the full amount of $1,340.50, which in Ohio Casualty Insurance Co.'s case shall be only to the extent of its bond. RECOMMENDED this 2nd day of June, 1995, at Tallahassee, 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 2nd day of June, 1995. APPENDIX TO RECOMMENDED ORDER 94-6189A The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-2 Accepted. Rejected as unnecessary Rejected as subordinate and mere argumentation. 5-6 Rejected as mere argumentation. Rejected as these were not the dates testified. Rejected as mere argumentation. Respondent Steve Helms Fruit Co., Inc.'s PFOF: 1 Accepted. 2-4 Rejected as not proven. Accepted as to the June 10-14, 1994 load. Rejected as not proven. Not proven in whole. Covered to the extent proven. While one inference might be that a different invoice number was assigned to the combined load, that is not the only reasonable inference based on the evidence submitted. Likewise, although Petitioner apparently got some inspection certificate, that certificate is not in evidence. There is no record evidence as to what it covered. It is not reasonable to infer or guess that it covered four loads on four trucks on three dates or that there is any way to calculate from it that the only bad melons were Petitioner's melons and not those mixed in from another farm on June 14, 1994. See FOF 19-20. 8-15 Rejected as not proven. Respondent Ohio Casualty Insurance Co.'s PFOF: None filed COPIES FURNISHED: Frank Favuzza, President Steve Helms Fruit Co., Inc. Post Office Box 1682 Auburndale, Florida 33823 Tom Morton Ohio Casualty Insurance Co. Post Office Box 94-5010 Maitland, Florida 32794-5010 L. C. Stevenson 333 NW 46th Avenue Ocala, Florida 34482 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol PL-10 Tallahassee, Florida 32399-0810 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL 10 Tallahassee, Florida 32399
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 parties stipulated, at the final hearing, that petitioner's national headquarters are in Florida. Before the hearing began, the parties had entered into a written stipulation, setting forth facts pertinent to the dispute. The parties also entered into a written supplemental stipulation, before the hearing began. These stipulations are hereby incorporated into the recommended order, and the facts to which the parties have stipulated are deemed true. Attached as appendices to the recommended order are the parties' written stipulations, sans attachments.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the proposed deficiency be withdrawn. DONE and ENTERED this 21st day of October, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Samuel C. Ullmann, Esquire and Mr. Richard J. Razook, Esquire 1301 Alfred I. DuPont Building Miami, Florida 33131 Mr. E. Wilson Crump, II, Esquire Assistant Attorney General Department of Legal Affairs Post Office Box 3906 Tallahassee, Florida 32303
The Issue The issue is whether Respondent discriminated against Petitioner based on her race and/or age in violation of Section 760.10, Florida Statutes(2005).
Findings Of Fact Petitioner is an African American female. She was over the age of 40 when Respondent hired her and when she resigned her position as Respondent’s sales associate. Respondent is an employer as defined by the Florida Civil Rights Act of 1992, as amended, Sections 760.01-760.11 and 509.092, Florida Statutes (2005)(FCRA). Dillard’s Inc., purchased numerous department stores owned by C. J. Gayfer and Company in 1998. Respondent, which is located in the Cordova Mall, Pensacola, Florida, is one of those stores. Respondent employs 200 to 250 sales associates. Approximately 48 percent of Respondent’s employees are over the age of 40. About 90 percent of Respondent’s employees are older than Petitioner. Additionally, 28 percent of Respondent’s employees are African American. Respondent hired Petitioner on May 11, 1999, as a sales associate in the Cordova Mall Store. Because Petitioner did not apply for a specific position, Respondent assigned her to the men’s fragrance department/work center with a starting rate of pay at $8.00 per hour. Respondent also provided Petitioner with health insurance benefits. Petitioner was an experienced retail salesperson when Respondent hired her. However Petitioner had no experience or training in selling men’s fragrances. Throughout Petitioner’s employment with Respondent, Beth Winter was the store manager. Ms. Winter is responsible for the store’s profitability and merchandise. She also manages the area sales managers (ASM) of the various work centers. Ms. Winter reports directly to Linda Sholtis, Respondent’s District Manager. Ms. Sholtis is responsible for 18 of Respondent’s stores. In December 2004, Respondent was in the process of preparing its payroll budgets for the following year. Respondent’s executive management made a business decision to reorganize some of its work centers. Specifically, Respondent decided to use its smaller work centers to train new sales associates, to keep the lower pay rates in the smaller work centers, and to move the sales associates in the smaller work centers, who were earning higher rates, to other work centers that could support their higher rates. High rates in a small work center means that Respondent has less hours to allocate to the department, resulting in less hours available for customer service. Respondent made a business decision to move the higher rates into the larger work centers that could support those rates. As a non-commissioned sales associate, Petitioner was subject to Respondent’s Sales-Per-Hour (SPH) program. Respondent applies the SPH program to all non-commissioned sales associates and to some commissioned sales associates working in ladies shoes. The SPH program is based on objective criteria described below. The SPH program has “standard goals” and “raise goals” that are based upon an employee’s hourly rate. The standard goal is the dollar volume of sales an employee is required to average for each hour worked to support his/her pay. The raise goal represents the dollar volume of sales an employee should average per hour during a review period to justify a pay increase. To determine the goals, each work center is assigned a “selling cost” (SC). Respondent’s executive management determines the SC for each work center in each store. The SC for a work center reflects the percentage of sales that Respondent determines should be the maximum amount budgeted for payroll expense for a particular work center. SC calculations are based on historical sales and marketing data. The SC and the SPH goals for sales associates vary among work centers based on sales history. For example, in the Cordova Mall store, the men’s fragrance work center has a SC of 12 percent, meaning that Respondent does not want the payroll budget in that department to exceed 12 percent of the dollars earned from its sales. The men’s fragrances department is a very small work center. It has a higher SC because it does not have as much sales volume as the larger work centers. To derive an employee’s SPH goals, an employee’s hourly wage is divided by the SC percentage for the employee’s work center. Accordingly, as an employee’s hourly wage increases, the employee’s SPH goal increases. Further, as the work center’s SC percentage increases, an employee’s SPH goals decrease. An employee’s age and race are not factored into the sales goals derived under Respondent’s SPH program. The program is a mathematical formula centered around an employee’s hourly rate and the SC of the employee’s assigned work center. Before the above-referenced reorganization took place, there were four sales associates assigned to men’s fragrances. Petitioner was the only Africa American. Lois Thomas and Cathy Carlisle were Caucasian. Marie Aceval was Hispanic. All four associates were over the age of 40. In December 2004, Petitioner was one of Respondent’s top sales associates. She was the best sales person in men’s fragrances and received the highest rate of pay. She was a very aggressive salesperson. Over the course of Petitioner’s employment, her salary increased substantially from $8.00 to $17.00 per hour as a result of her ability to sell men’s fragrances and merchandise outside of her work center in men’s clothing. Men’s fragrances was a small work center that was not budgeted for a sales associate to earn $17.00 per hour. As of December 2004, Petitioner had a pay rate of $17.00 per hour and men’s fragrances had a 12 percent SC. Therefore, Petitioner’s individualized SPH standard was $142.00. On the other hand, a sales associate assigned to men’s clothing would have a SC of 6 percent and an SPH of $283.00 if paid $17.00 per hour. When assigned to men’s fragrances, Petitioner’s substantially increased her productivity by selling goods from the men’s clothing work center. This significantly inflated Petitioner’s performance because she received double-credit for the sales outside of her assigned area. Petitioner had less volume to sell in men’s fragrances (with a SC of 12 percent) to meet her SPH, whereas, employees in men’s clothing (with a 6 percent SC) had a larger volume of merchandize to sell. When Petitioner sold merchandize in men’s clothing, she would still get the men’s fragrances 12 percent SC credit. Petitioner sold more merchandize outside her area than any other employee in men’s fragrances. Petitioner understood that her primary duty was to sell goods in men’s fragrances. However, about 25 percent of Petitioner’s sales were from the men’s clothing work center. In December 2004, Respondent did not have a policy prohibiting sales associates from selling goods from other work center. Respondent did not write employees up for such sales. Respondent understood that a certain amount of such sales were necessary for customer convenience. However, Respondent discouraged out-of-area sales. Respondent continued to give Petitioner annual raises because there was no specific prohibition against her selling merchandize from men’s clothing. Petitioner actively went out of her work center to get customers, knowing such sales would inflate her rate. On several occasions, Lisa Bell, the ASM for cosmetics and the direct supervisor for men’s fragrances, advised Petitioner and other associates about the need to limit sales outside of men’s fragrances. Early in December 2004, Ms. Sholtis visited the Cordova Mall store. Ms. Sholtis met Ms. Winter and Ms. Bell in Ms. Bell’s office. During the meeting, Ms. Sholtis explained that employees in the smaller work centers, who are earning more than their assigned work center’s support rate, would be moved to better areas in the store that could support their pay rates. Ms. Sholtis also explained that some of the smaller work centers would be used as training areas. Specifically, men’s and ladies’ fragrances, junior’s clothing, ladies’ accessories, and children’s clothing would become training grounds for new associates. The company-wide plan for all stores included moving associates to better areas in the store after a training period. Ms. Sholtis reviewed a computer screen that identified employees by last name and pay rate. The screen did not disclose the employees’ race and age. Ms. Sholtis, without any knowledge of Petitioner’s race and age, selected her as the first employee to be reassigned from men’s fragrances. Ms. Sholtis selected Petitioner solely because her pay rate was the highest at $17.00 per hour. The men’s fragrances work center could support a rate of $10.00 or $11.00 per hour. All of the employees in men’s fragrances earned more than that amount. Therefore, all four sales associates had to transfer out to another area. Respondent transferred them in rank order from highest to least paid. The same reorganization involving Caucasian employees took place in the children’s work center and the ladies’ accessories area. When Ms. Bell questioned the timing of the transfers, Ms. Sholtis explained that the reorganization was a corporate- wide decision. Respondent was transferring associates in ladies’ and men’s fragrances in other stores. The transfers were affecting associates with up to 15 years of experience. In some cases, all of the employees in a work center would be transferred. Ms. Sholtis informed Ms. Bell that transfers should not be delayed until after the holidays. According to Ms. Sholtis, Petitioner’s immediate transfer would give her first choice of the best available positions in the store. Moreover, Petitioner’s compensation would not be affected by transferring before Christmas. At the time that Respondent made its decision to reorganize, the company could have instituted a policy that allowed Petitioner and other employees to remain in men’s fragrances and limit the credit they received for sales outside their work center. However, Respondent decided instead to transfer its most experienced associates to larger areas where they could maintain their high rates of pay. In any event, Petitioner would have considered it a demotion to have her pay reduced to $8.00 per hour, even if she had been allowed to stay in men’s fragrances. By the time of the hearing, Respondent had adopted a policy that limits the credit employees receive on sales outside their work center. In December 2004, Ms. Winter met with Petitioner to explain the decision to move her out of men’s fragrances due to her high rate of pay. Ms. Winter explained that the best areas in the store to support her pay rate would be the shoe department and cosmetics. Over a period of about two weeks, Ms. Winter provided Petitioner with several options for reassignment. Ms. Winter explained the benefits of each area, but specifically and repeatedly recommended ladies’ shoes and cosmetics, especially the Estee Lauder makeup counter. Respondent had associates making the highest rates of pay in those areas. At the time of the hearing, Respondent had four people in ladies’ shoes making $17.00 per hour or higher. One employee made $21.53 per hour. An employee in ladies’ shoes does not need years of experience to develop a client base in order to achieve a high rate of pay. One employee in ladies’ shoes was able to earn $15.81 per hour after seven months. Respondent transferred this employee from the junior department to shoes with no special knowledge about shoes and no customers. Another example of not needing time in ladies’ shoes to be successful involved an employee hired two weeks before Petitioner resigned in September 2005. The employee achieved an hourly pay of $18.46 after 15 months in ladies’ shoes. The record indicates that African American and other minority employees earn rates of pay as high or higher than $17.00 in ladies’ shoes. It is undisputed that some of the minority employees earning these high rates are older than Petitioner. Employees in the shoe department may earn a commission in addition to their SPH pay rate. They have a support rate but can earn higher raises if they support their rate. They can also request to raise their rates. Therefore, all associates in shoes may not have the same base rates, but they all earn 9.5 percent as commissions. The SC in shoes is also 9.5 percent. The average SPH goal for employees in shoes is $120.00. Employees earn the commission on sales made after they reach their SPH goal. Petitioner rejected the opportunity to transfer to shoes. She did not want to perform the work required to sell shoes. Petitioner was aware that one employee in her late 40s or early 50s earned approximately $17.00 in cosmetics. Ms. Bell wanted Petitioner to work in cosmetics because it would mean that she stayed in Ms. Bell’s work center. Nevertheless, Petitioner rejected the opportunity to work in cosmetics because she did not want to put make-up on people. After refusing a job in cosmetics or shoes, and not being permitted to transfer to a training work center, Petitioner’s remaining choices were in men’s clothing or women’s clothing. Petitioner elected to work in the ladies’ designer/bridge work center where Respondent sold women’s better clothes. Petitioner believed that she had a chance to support her pay rate in that area. Ms. Winter advised Petitioner not to transfer to the ladies’ designer area because it would be difficult for her to support her rate. Petitioner did not take Ms. Winter’s advice. Ms. Winter informed Petitioner that her transfer would not result in an immediate reduction in pay rate to the minimum rate paid to new hires. Rather, Petitioner would be paid her $17.00 rate regardless of her sales performance for six months. After that time, Petitioner’s rate, as well as the other transferees’ rates, would be adjusted based upon sales performance during the second three-month period and the new work center’s SC. Respondent required every transferring employee to sign a conditional transfer agreement setting forth the payment terms. The only option besides signing the conditional transfer agreement was to resign. In accordance with Respondent’s reorganization plan, Respondent used men’s fragrances to train new associates. Some of the new employees were younger than Petitioner. For example, Ms. Bell hired Renee McCurley, a Caucasian female to fill Petitioner’s position at $8.00 per hour. Ms. McCurley was 19 or 20 years old. Ms. McCurley trained in men’s fragrances for four or five months before transferring to ladies’ fragrances. Respondent subsequently fired Ms. McCurley because she was unable to meet her hourly goals after her transfer. On or about December 21, 2004, Respondent transferred Petitioner to ladies’ designer clothes. She was aware that the women’s work center had a SC of 6 percent. Brenda Maldon was the ASM over women’s clothing. Ms. Maldon became Petitioner’s direct supervisor. Ms. Maldon is African American and older than Petitioner. Petitioner’s annual review period ended in June 2005. However, Respondent gave Petitioner a review in December 2004 pursuant to policy that requires a review when any employee leaves his or her assigned area. The December 2004 monthly report indicated that Petitioner had not satisfied her SPH standard goal at that time. After several months, Petitioner was fourth in sales among about 30 people in the entire women’s clothing work center. She ranked number one in sales in the ladies’ designer area. Petitioner’s successful performance in the ladies’ designer area was not simply the result of the holiday season, which ended in January 2005. Petitioner ranked number one in her area, and number four in the entire work center, during the time between December 2004 and February 2005. January and February usually are slow retail months. Respondent reviewed Petitioner performance again in April 2005. As set forth in the conditional transfer agreement, employees who have transferred to another area receive a three- month review. During the second three-month period of her reassignment, Petitioner’s sales decreased. She took long weekends off from work, thereby missing the busiest sales time of the week. She ranked number 18 in sales in the entire women’s clothing work center. However, she still ranked number one in sales in the ladies’ designer area. Petitioner’s sales performance during the second three months after the transfer could not support her $17.00 pay rate. Instead, her sales performance supported a pay rate of $7.95 per hour. At that time, due to the impact of a hurricane, no one in the ladies’ designer area supported their rates. Everyone was off their sales goals. Although Petitioner ranked number one in sales in her area, the decision that she was unable to support her $17.00 pay rate was based on the mathematical formula set forth in the conditional transfer agreement. Petitioner’s $7.95 pay rate was derived by dividing her actual SPH of $136.00 by her SHP goal of $291.00 and multiplying the product by her pay rate of $17.00. Petitioner’s $7.95 pay rate became effective July 31, 2005. Of all the employees transferred out of men’s fragrances, Petitioner received the largest pay reduction after six months because she had the highest pay rate before the transfer. Respondent applied the same formula and calculations to every employee who transferred out of a work center. For example, Ms. Thomas, who continued to work for Respondent at the time of the hearing, received a reduction in her pay rate after transferring from men’s fragrances to another work center from $13.45 to $8.60 per hour. There is no persuasive evidence that Respondent denied Petitioner training in the ladies’ designer area. Additionally, Petitioner never complained to Respondent’s management that she was experiencing a hostile work environment because of her race and/or age. Petitioner requested and received a leave of absence on August 8, 2005. She resigned on September 1, 2005. Petitioner advised Respondent’s staff that she was resigning due to the stress and anxiety related to her “demotion” and her resulting financial problems. Petitioner implied that she had another job that she did not want to discuss. During the hearing, Petitioner testified that she resigned because she “could no longer afford to drive 90 miles per day.” After leaving her job with Respondent, Petitioner received about $6,000.00 in unemployment compensation. Six months after her resignation, Petitioner began working for another employer, earning $9.00 per hour without any medical or other benefits. Two months later, Petitioner quit her job again; she was unemployed for approximately three months without unemployment compensation. In August 2006, Petitioner accepted employment with Wal-Mart.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of February, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2007. COPIES FURNISHED: Christopher E. Varner, Esquire Christopher E. Varner, P.A. 6056 Doctor's Park Road Milton, Florida 32570 Lori R. Benton, Esquire Ford & Harrison LLP 300 South Orange Avenue, Suite 1300 Post Office Box 60 Orlando, Florida 32802-0060 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denis Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the license of Respondent should be revoked, annulled, withdrawn or suspended for employing a student without a permit to work who had not yet taken the state board examination for cosmetologists.
Findings Of Fact Elaine York is the owner and operator of the Act II Salon of Beauty. Mary Mainello, also called Kathy Mainello, is employed to work in he subject beauty salon. At the time of the inspection Miss Mainello had not yet obtained her work permit and had not taken the state board examination or been licensed to practice cosmetology. She told the inspector that she had been working doing shampoos and sets but that no damage was done. Therefore a violation notice was written against the owner of the salon. At the time of the inspection Miss Mainello was in the beauty shop of Respondent for the purpose of observing and was not on the payroll of the subject beauty salon. Although the inspector did not actually see her work, there was a station for her to work which . had been used at the time of the inspection. She said that she had been observing for a period of two (2) weeks. At the time of the inspection the owner, Mrs. York, was not in the shop, having gone to the bank. The Hearing Officer finds that the student, Mary Mainello, was in fact performing the duties of a cosmetologist, that is, shampooing and setting hair but without the knowledge or permission of the Respondent owner.
Recommendation Write a letter of reprimand for lack of close supervision of the student who should have learned the laws and rules pertaining to cosmetology. DONE and ORDERED this 19th day of August, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Clifford L. Davis, Esquire LaFace & Baggett, P.A. Post Office Box 1752 Tallahassee, Florida 32302 J. Kermit Coble, Esquire Coble, McKinnon, Reynolds, A Rothert, Bohner & Godbee, P.A. Post Office Drawer 9670 Daytona Beach, Florida 32020
The Issue The issue in this case is whether Respondent, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the “Department”), is operating under an unadopted rule in its application of sections 210.276 and 210.30, Florida Statutes, which impose a surcharge and an excise tax, respectively, on tobacco products other than cigarettes or cigars, commonly known as other tobacco products (“OTP”), by utilization of “best available information” in lieu of actual documents submitted by the taxpayer when performing audits to establish a tax assessment. Unless otherwise stated herein, all references to Florida Statutes shall be to the 2016 codification.
Findings Of Fact Global Hookah was formed as a Florida corporation on June 9, 2005, with its principal place of business in Melbourne, Florida. After graduation from college, Global Hookah’s owner and 100 percent shareholder, Brennan Appel, decided to move his company to North Carolina. Global Hookah was re-formed as a North Carolina corporation on June 14, 2007. Appel then moved all of his inventory and business equipment to a 10,000-square- foot warehouse in Charlotte, North Carolina. Each corporate annual report filed since 2007 reflects the Charlotte, North Carolina, address. All annual meetings and corporate tax returns indicate North Carolina as the situs for the corporation. Mr. Appel, sole shareholder of Global Hookah, has resided in North Carolina continuously since 2007. At all times pertinent hereto, Global Hookah was conducting its business from North Carolina. When the North Carolina corporation was formed, Mr. Appel mistakenly failed to convert the Florida Global Hookah corporation into a foreign for-profit corporation. That oversight was corrected on May 31, 2016, by way of a filing with the Florida Division of Corporations. Global Hookah does not currently have a physical place of business in Florida; its only connection to the State is the sale and delivery (by unaffiliated carriers) of the products it sells. When the company was still operating out of its Florida offices, Mr. Appel’s mother, Jennifer Appel, worked as an employee and was an officer of the Florida corporation. After the move to North Carolina, Mrs. Appel became a part-time employee, performing quality assurance checks in the North Carolina warehouse. She was paid for her services by way of a direct deposit into her checking account in Florida. Mrs. Appel continues to reside permanently in Florida, traveling to North Carolina when working for Global Hookah. Mrs. Appel is not an officer of the North Carolina corporation. When Global Hookah was located in Melbourne, Florida, the Department’s Orlando office conducted its semiannual tax audits. The Department’s office in Margate, Florida, conducts audits of out-of-state licensees, and the audit at issue was therefore conducted by the Margate office. Global Hookah sells about 3,500 different tobacco- related products to customers in many jurisdictions, including Florida. Its customers are primarily businesses, such as hookah lounges, night clubs, bars, restaurants, and cigar stores, but also other tobacco distributors. Some products are also sold by Global Hookah directly to consumers. The products are sent to customers via U.S. Mail, or third-party carriers. The Department is the government agency responsible for, inter alia, monitoring and collecting taxes on the sale of tobacco and OTP in Florida. As part of its duties, the Department audits on a regular basis (from every six months to every two years) each entity which distributes tobacco and OTP in Florida. In July 2013, the Department notified Global Hookah that an audit would be performed on that company for the period January 1, 2013 through June 30, 2013. The primary purpose of the audit was to determine the wholesale sales price of the OTP sold by Global Hookah in Florida during the audit period, determine the amount of products which had been sold, and assess a tax on the total. How that audit actually transpired is a matter of dispute between the parties. The parties agree that an auditor from the Department, Deborah Spady, contacted Mr. Appel and requested certain records so that she could conduct the audit. Beyond that, the parties completely disagree as to what transpired. The Department’s position, based almost entirely on unsubstantiated hearsay testimony from Mr. Torres, is as follows: Ms. Spady asked for certain company records to be sent to her via U.S. Mail, but Global Hookah refused to comply with the request. Ms. Spady then scheduled a visit to the Global Hookah offices in North Carolina to obtain the records she needed. She was provided numerous boxes of documents to review, but was not allowed to use the company’s copier to make copies. She called her supervisor, Mr. Torres, who told her to purchase a hand-held scanner and to scan all the documents so they could be printed on her return to Florida. Ms. Spady purchased a scanner and returned to Global Hookah. At that point, she was told that she could not scan the documents. Discussions between the Department and attorneys for Global Hookah ensued, resulting in Ms. Spady being allowed to scan the documents. She allegedly scanned an amazingly large number of documents in just a day and a half at the Global Hookah offices. Ms. Spady brought the scanned documents back to Florida so they could be printed and an audit could be performed for the audit period. At that point, Ms. Spady commenced the audit. According to Mr. Appel, the audit happened like this: Mr. Appel was informed by Mr. Torres that Ms. Spady would be conducting an audit for the aforementioned time period. Mr. Torres said that Ms. Spady preferred to come to North Carolina to do the audit. Upon her arrival at the Global Hookah offices in North Carolina, Mr. Appel gave Ms. Spady a CD containing all the requested documents, i.e., purchase invoices showing the cost of the tobacco and OTP, sales documents showing the products were sold in Florida, and the monthly returns filed by the taxpayer pursuant to Florida requirements. The monthly returns are a self-reporting summarization of products shipped to and sold in Florida by a distributor (minus some allowed exemptions). Compilation of those records on a CD was Mr. Appel’s normal procedure for the semiannual audits conducted by the Department. Ms. Spady reviewed the CD on her computer when she went to lunch. When she returned to Global Hookah’s office after lunch, she reported that some of the files on the CD would not open properly. Mr. Appel converted the documents on the CD into another format and verified that Ms. Spady could open the files. Ms. Spady said she was satisfied with the results and left the Global Hookah offices. Mr. Appel never saw Ms. Spady again. The parties basically agree only that an audit was initiated by the Department, it was commenced by Ms. Spady, and that someone else ultimately completed the audit. Just about everything else about the pre-audit process is disputed. It is as if the parties were talking about two completely different audits, which is what Global Hookah suggests happened. There was a subsequent audit performed by the Department where the auditor did scan some documents. There was allegedly some dispute in the latter audit concerning the auditor attempting to scan documents relating to sales in states other than Florida. A letter was supposedly sent to the auditor addressing that issue, but no such evidence was presented at final hearing. The Department says there was a subsequent audit, but Global Hookah “refused to provide records” so it was not completed. At some point in time, another auditor, Robert Lerman, took over the Global Hookah audit from Ms. Spady. None of Ms. Spady’s audit notes were preserved and so were not available for review at final hearing to substantiate Mr. Torres’ hearsay testimony concerning how the audit was initiated. Ms. Spady, who no longer works for the Department, was not called as a witness at final hearing. On November 24, 2014 (about four month after Ms. Spady commenced the audit), Mr. Lerman set up an audit file. At the commencement of his work, Mr. Lerman was advised by Mr. Torres that the records obtained from Global Hookah could not be trusted. This was due to the fact that Global Hookah had produced documents entitled “sales order” rather than traditional “invoices,” even though the Department had accepted the same kinds of documents from Global Hookah in the past. The Department believed that the sales orders could be altered, while the invoices would be more precise and final. Faced with its unease using the sales orders, the Department contacted Mr. Appel and requested that he submit invoices instead of sales orders for the audit period. Global Hookah contacted its supplier in California, Fantasia Distributors, Inc. (“Fantasia”), to obtain invoices to submit to the Department. The only difference between the sales orders and invoices–- besides the title of the documents--was that some charges had been zeroed out, presumably because the amount had been paid when the invoice was issued. Mr. Appel provided the Department with 40 pages of invoice documents marked as “invoiced in full.” The Department compared the new Fantasia invoices with the Global Hookah sales orders and determined that some of the information contained therein did not match up appropriately. There were some missing numbers, some invoices were not in logical number sequence, and there appeared to be other discrepancies. At that point, Mr. Torres got more involved in the Global Hookah audit. From the documents supplied by Global Hookah, Torres prepared a spreadsheet identifying 18 separate dates of transactions between Global Hookah and Fantasia during the audit period. He found, however, that there were really only about 15 actual purchases; some of the costs relative to a single purchase were divided and appeared on invoices with different dates. Some of the invoices had five-digit identification numbers that did not seem to match up with the sales orders previously provided. Based upon his review and findings, Mr. Torres deemed the invoices from Fantasia (which had been provided by Global Hookah) to be less than credible. Mr. Torres in fact concluded, unilaterally, that Global Hookah was attempting to hide purchases and to “deceive” the Department. It is noted that the Department made no attempt to contact Fantasia, with whom it was very familiar, to ascertain why the documents did not match up. Once Mr. Torres reached that conclusion, he decided to ascertain the actual purchase amounts by way of “best available information.” According to his audit notes, Mr. Lerman was directed by Mr. Torres to determine the “best available information” as follows: He was to make a schedule of all products purchased by Global Hookah from Fantasia. Inasmuch as the Department was familiar with Fantasia and knew that company supplied many distributors in Florida, Mr. Lerman was told to compare the cost of each product Global Hookah had bought from Fantasia with the cost other providers had paid for the same products. An average unit price for the products was thus calculated by the Department. The Department determined that Global Hookah was paying far less for some products than Fantasia was charging some of its other distributor customers. No competent evidence was produced as to why this disparity existed. The Department simply surmised that Global Hookah was apparently misstating the amounts it had paid Fantasia for the products. The Department, based on its comparison of Fantasia’s other non-related invoices, determined that Global Hookah was understating those product costs amounts by 454 percent. The Department thereupon applied a factor of 4.54 to all of Global Hookah’s purchases and Florida sales for the entire audit period. Although less than 20 percent of Global Hookah’s purchases for that audit period were with Fantasia, the factor was applied to all Florida sales in order to make the tax assessment.1/ The tax assessment on Global Hookah using the revised cost figures was determined to be $305,374.76, plus $152,687.37 of penalties, and $58,419.43 in interest, for a total tax assessment of $516,481.53. The Department had taken the purchases reported by Global Hookah on the monthly returns filed during the audit period, multiplied that figure by 4.54 to arrive at an adjusted figure, took the difference between the reported amount and the adjusted figure, and made a tax assessment on that amount. Later, the Department decided to revise its assessment by removing some of the non-Fantasia purchases, resulting in a tax assessment of $170,292.42 in tax, plus 1 percent interest per month, plus a penalty in the amount of 50 percent of the assessment, for a total tax assessment of $241,818.77. The basis for this reduction in tax assessment was that the Department determined that the 454 percent mark-up based on the Fantasia invoices should not necessarily be applied to the other 80 percent of Global Hookah’s purchases from other suppliers. Contrary to the Department’s position regarding the Fantasia purchases, Mr. Appel’s unrefuted testimony was that the prices shown on the sales orders were the actual amounts paid by Global Hookah to Fantasia. An affidavit dated April 2, 2016, from Fantasia’s president, Randy Jacob, corroborated Mr. Appel’s testimony.2/ That evidence is contrary to Mr. Torres’ contention that Global Hookah was falsifying its purchase price as to products purchased from Fantasia. The Department presented no competent evidence as to the basis for the prices Fantasia charged Global Hookah for products. The Department’s position, though based on logical reasoning in the abstract, was still entirely speculative and unpersuasive.3/ The Department’s decision to rely upon “best available information” is a new, unique way of conducting its review of records for an audit. Mr. Torres stated that in 30 years, he had not had to resort to such a process. The Department relied upon the “best available information” policy only in the instant case. There is no evidence that the policy was to be used in any other case or as a regular or appropriate method of dealing with less than acceptable records. It was used in the case at issue because Mr. Torres felt no other means would suffice. Global Hookah also contends that the Department’s inclusion of federal excise tax, shipping costs and other items in the taxable base for distributors constitutes an unpromulgated rule. That issue, however, has already been decided in Florida Bee Distributors, Inc. v. Department of Business and Professional Regulation, Case No. 15-6108 (DOAH Mar. 3, 2016)(“Florida Bee”), and will not be addressed in this Recommended Order. The Final Order in Florida Bee has been stayed and is currently under appeal at the First District Court of Appeal, Case No. 1D16-1064, meaning that the Department is free to rely on the policy pending a decision by the appellate court.
