The Issue The issue presented for determination is whether Respondent, Dillard’s, discriminated against Petitioner, Tanya Chun, based on her age, in violation of section 760.101, Florida Statutes (2012),1/ when it did not hire her for a sales associate position.
Findings Of Fact Ms. Chun was born April 4, 1957. Ms. Chun applied for a position as a sales associate at Dillard’s Department Store No. 209 in Lakeland, Florida, on June 7, 2012. At the time, she was 55 years old. Ms. Chun completed the employment application at a kiosk in the store linked to Dillard’s personnel system. Ms. Chun’s application disclosed only two periods of employment. The most recent was with Golf Plus, Inc., as a bookkeeper handling accounts receivable and accounts payable from January 1998 to May 2012. The other was employment at Macy’s in New York City from April 1993 to October 1994 in clothing sales and customer services as a retail sales associate. At the time, the Lakeland Dillard’s store had five openings--two in cosmetics, two in ladies’ shoes, and one in men’s shoes. At all times relevant to this proceeding, Walter Soto was operation sales manager at the store with authority to hire people to fill the openings. Mr. Soto interviewed Ms. Chun and seven other applicants for the five positions. During the interview and hiring process, Mr. Soto relied upon the information the applicants provided in their applications and the interviews. Mr. Soto hired five of the applicants. He did not hire Ms. Chun. During Ms. Chun’s interview, Mr. Soto asked her a number of questions about Macy’s sales procedures and common sales procedures and practices. Ms. Chun was not familiar with common concepts, such as sales per hour and items per transaction. These are concepts with which someone with retail experience and knowledge should be familiar. The five people Mr. Soto hired are Emil Pancorbo, Angelique Schoenmakers, Taylor Swallow, Ashley Thirion, and David Tilton. All were younger than Ms. Chun, although Ms. Schoenmakers was only three years younger. The information available to Mr. Soto about Emil Pancorbo, which he relied upon, indicated that Mr. Pancorbo had recent retail experience at large retailers, JCPenney from October 2008 to April 2011, and Guitar Center from April 2011 to September 2011. Mr. Soto considered this experience in deciding to hire Mr. Pancorbo, instead of Ms. Chun. The information available to Mr. Soto about Angelique Schoenmakers, which he relied upon, indicated that she had recent retail experience as a counter manager for Elizabeth Arden and that she worked for Macy’s from October 2010 to April 2012. Ms. Schoenmakers was recruited to work for Dillard’s. Mr. Soto considered Ms. Schoenmakers’ employment history in deciding to hire Ms. Schoenmakers, instead of Ms. Chun. Ms. Schoenmakers was born January 15, 1960, making her only three years younger than Ms. Chun. The information available to Mr. Soto about Taylor Swallow, which he relied upon, indicated she had recent retail experience, working for Kohl’s from August 2011 to June 2012. Ms. Swallow also had cosmetic experience. She had applied makeup on clients. Mr. Soto considered Ms. Swallow’s employment history in deciding to hire Ms. Swallow, instead of Ms. Chun. The information available to Mr. Soto about Ashley Thirion, which he relied upon, indicated she had recent retail experience working at a Clinique cosmetics counter at Macy’s from June 2011 to November 2011. Clinique is a cosmetics line that Dillard’s also carries. Mr. Soto considered Ms. Thirion’s employment history in deciding to hire Ms. Thirion, instead of Ms. Chun. The information available to Mr. Soto about David Tilton, which he relied upon, indicated that Mr. Tilton had recent retail experience at a large retailer, Bealls from May 2010 to May 2012. Mr. Tilton worked in the shoe department for Bealls. Mr. Soto considered Mr. Tilton’s employment history in deciding to hire Mr. Tilton, instead of Ms. Chun. Based on the information from the applications and interviews available to him, Mr. Soto made a fair and rational decision to hire applicants other than Ms. Chun. In particular, the fact that the retail experience of each of the applicants was more recent than that of Ms. Chun supports Mr. Soto’s decision. All of the applicants, except Ms. Swallow and Ms. Thirion, also had more retail experience than Ms. Chun. Ms. Swallow and Ms. Thirion both had cosmetics experience, and two of the positions that Mr. Soto was filling were for the cosmetics department. The Dillard’s employment procedure includes preparing an applicant summary for each individual interviewed. For the hiring cycle involved here, eight of the applicant summaries, including Ms. Chun’s, indicate the person was hired. In order for the Dillard’s system to permit obtaining a background check, Mr. Soto had to change an applicant’s status on the applicant summaries to “hired.” At the time, Mr. Soto was not following the Dillard’s procedure of only conducting a background check for an employee after the employee was hired. He did not think the procedure was fair to the applicants, who may be hired and then “un-hired” after the background check. Mr. Soto chose to conduct background checks before extending job offers. The status on Ms. Chun’s applicant summary states “hired.” But she was not hired, just as Ricky Davis and William Guadalupe, whose summaries state “hired,” were not hired. The status for all the applicants said “hired,” only because Mr. Soto changed the status in order to run a background check. If Dillard’s hires an employee, a Basic Employee Information sheet is prepared. There is no Basic Employee Sheet for Tanya Chun because she was not hired. There are Basic Employee Information sheets for Emil Pancorbo, Angelique Schoenmakers, Taylor Swallow, Ashley Thirion, and David Tilton. If an employee is hired, Mr. Soto conducts reference checks. He did not conduct a reference check for Ms. Chun because she was not hired. Ms. Chun maintains that Mr. Soto told her at the interview’s conclusion that she was hired and that they agreed to a start date and compensation of $10.00 per hour with full medical and dental insurance. She also maintains that Mr. Soto told her she would undergo a routine background check and requested that she sign a consent form and provide her identification card for the background check. Ms. Chun says that Mr. Soto stated that she did not “look that old” after he looked at her identification. She also claims he then said he had to talk to someone else and left the room for about five minutes. Mr. Soto denies Ms. Chun’s descriptions of the conversation. Ms. Chun, according to her own testimony, called for Mr. Soto a few times in the days following the interview to check on her employment status. She was correctly told that he had been transferred. On June 18, 2012, Ms. Chun sent a letter with the following text to Mr. Soto: I am writing to inquire the status of my employment application and I would like to receive your written response. Early last week, I applied for employment at Human Resources. The next day I was called in for an interview by you and when we met, before you offered a position you stated that I seemed to be a good candidate, and requested my identification and social security card, made photocopies, then stated that you will do a background check. As you reviewed my identification papers, your tenor changed and you stated that you will get back to me. I am writing to ask the status. I would like to request a copy of the documents I completed, as I do not have them for myself--both the application and the background disclosure form. And I would like to know why my identification with date of birth was requested before I was offered a position, and why my identification became the basis of your change of discussion. Thank you for your prompt attention. She did not receive a response. On February 28, 2013, Ms. Chun sent another letter, this one to the Dillard’s Human Resource Department. It states: I wrote the attached letter [June 18, 2012, letter] to your company more than six months ago, and I have received no response. My discussion with Walter at the interview, before being requested to provide my ID showing my age, was that I was going to be hired. Then, when my ID revealed my age I was told “we will get back to you” and I have requested an explanation and copies of the documents pertaining to my application, but you have totally disregarded my letter. I am writing to reiterate my request, and I request that you respond within five business days. Neither letter, both of which are specific and articulate, includes the claim Ms. Chun now makes that Mr. Soto said she did not “look that old” after seeing her identification. Dillard’s did not respond until March 11, 2013. A woman named “Arlie” called that day and told Ms. Chun it was Dillard’s policy to obtain identification and again advised that Mr. Soto had been transferred to another location. The weight of the credible, persuasive evidence does not establish Ms. Chun’s version of the events. The factors resulting in this determination include the fact that she testified that Mr. Soto told her she was hired and that they agreed upon a start date. Yet, she also testified that she called several times to check on the status of her application. Calling to check on the application’s status is inconsistent with having accepted a job and having agreed to a start date. If Ms. Chun had been offered and accepted a job, she would have reported for work, not called to check on the status of her application. In addition, Mr. Soto’s testimony about the process and the events is consistent with the documents for the applicants he interviewed. Finally, Ms. Chun did not make her very specific claim about what Mr. Soto said, “you don’t look that old,” in either of her letters or her initial Complaint of Discrimination filed with the Commission. From April to November of 2013, Mr. Soto hired at least ten individuals born in 1957, like Ms. Chun, or born earlier. This is persuasive evidence corroborating Mr. Soto’s testimony that he does not weigh an applicant’s age against the applicant when making his hiring decisions. Mr. Soto hired five applicants other than Ms. Chun because he found their qualifications superior for the open positions. Ms. Chun’s age was not a factor in Mr. Soto’s decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Ms. Chun’s Petition for Relief. DONE AND ENTERED this 19th day of June, 2014, 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 19th day of June, 2014.
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of handicap, in violation of section 760.10, Florida Statutes, and, if so, the appropriate remedy.
Findings Of Fact Petitioner is a 37-year-old Caucasian male. Respondent is an insurance agency registered and licensed to do business in Florida and headquartered in Boca Raton, Florida. Respondent is a direct marketer of insured products, including health insurance policies, and non-insured products, such as lifestyle benefit programs and telemedicine. Respondent uses a call center model to market insurance products. At the call center, sales agents take calls from prospective clients and are paid a "base wage" plus commission. Since sales agents are paid a base wage, they must meet minimum sales requirements to help offset the fixed costs associated with their employment. Petitioner became employed at Respondent's Miramar call center as a sales agent starting on or about September 9, 2013. His employment duties entailed calling potential sales leads and selling non-major medical insurance policies over the telephone. The position for which Petitioner was hired did not have a specified term of employment, and Petitioner and Respondent did not execute an employment contract when Petitioner was hired.1/ Petitioner's work hours were from approximately 8:00 a.m. to 5:30 p.m., five days per week. Sales agents, including Petitioner, were paid $12.50 per hour, with a guaranteed salary of $500 per week, plus a commission on sales made. In late September 2013, Petitioner became ill. His illness manifested itself as shortness of breath and coughing. By late October 2013, his illness had progressed to the point that he was experiencing acute respiratory distress episodes. Petitioner testified that he experienced shortness of breath that, at times, made it "physically impossible" to talk on the telephone. However, he also testified that "I was on the phone doing what I was supposed to be doing, making calls and talking to potential customers, and I was doing it in a way in which other agents did it, which was normal and customary."2/ During his employment tenure with Respondent, Petitioner took time off work for medical appointments related to his condition, but he could not recall how many times, or for how long. There was no evidence presented showing that Respondent was aware of the specific reason for Petitioner's medical appointments. On October 30, 2013, the day he was terminated, Petitioner experienced a respiratory distress episode and had to use the nebulizer while at work. He also had experienced a similar episode at work approximately two days before and had had to use the nebulizer. Petitioner did not inform Respondent that he was experiencing shortness of breath, respiratory distress, or any other medical condition that interfered with his ability to perform his job. The persuasive evidence establishes that Respondent's human resources representative had witnessed the acute respiratory distress episode that Petitioner suffered the day he was terminated. However, there is no direct evidence that anyone with Respondent in a position (such as supervisors or managers) to make decisions about Petitioner's employment was made aware of his shortness of breath, acute respiratory distress episodes, or use of the nebulizer while at work. On October 30, 2013, Respondent terminated Petitioner from his employment. The evidence shows that at the time Petitioner was terminated, he was informed that it was due to inadequate sales production.3/ Petitioner testified at the hearing, on rebuttal, that when he was terminated, the manager who fired him "made a comment to me that I couldn't do my job, referring to the fact that I was short of breath on the phone, not to the——to a reference of low sales."4/ There is no other evidence in the record that Petitioner was told that he was being fired because he was physically unable to do his job. Petitioner testified that he did not recall having been informed, before his termination, that he was not meeting performance expectations. He testified that he did not know how his sales performance compared to that of other agents whose employment duties were the same as his. He testified that he did not believe he was the lowest-performing sales agent at the call center. He also testified that he believed he was the only person terminated that day. However, he did not articulate any specific factual or perceptual bases for these beliefs. At the time he was terminated, Petitioner asked to be given two extra days, until Friday of that week, to allow new medications he recently had been prescribed to be given a chance to work so that he could talk on the telephone without experiencing severe shortness of breath. Respondent declined to provide him the two extra days before terminating him. Petitioner had been employed with Respondent for approximately seven-and-a-half work weeks5/ when he was terminated. Petitioner testified that as of October 30, 2013, he was "disabled,"6/ although he did not know it at that time. He testified, persuasively, that he continued to have difficulty breathing after being terminated. Sometime after he was terminated, Petitioner was determined eligible for Supplemental Security Income ("SSI") benefits from the Social Security Administration, and eligible for vocational rehabilitation services from the Florida Department of Education, Division of Vocational Rehabilitative Services.7/ Petitioner asserts that even though he did not notify Respondent that he was disabled before he was terminated, he believes that Respondent's supervisors and managers perceived him being as disabled due to his respiratory distress episodes, shortness of breath, and use of a nebulizer while at work, and that they terminated him on that basis. However, as noted above, the evidence does not show that anyone in a position to make decisions about Petitioner's employment was aware of his health condition before Respondent terminated him. At the time of Petitioner's employment, Stephen Fingal was Respondent's director of enrollment and oversaw the sales department, including the call centers. Petitioner was among the employees Fingal supervised. Fingal testified that each call center sales agent was required to make a minimum of 12 "primary" insurance policy sales per week8/ in order to cover his or her $500 per week salary,9/ as well as the cost of "leads," which are generated through Respondent's commercial advertising programs, and break down to a fixed cost of roughly $1,500 to $2,000 per week per agent. The competent, persuasive evidence, consisting of Fingal's testimony and sales logs,10/ shows that Petitioner consistently failed to meet the minimum sales performance standard over the entire term of his employment with Respondent. During Petitioner's first week of employment, he was being trained, so made no sales. He made four total sales his second week of employment; no sales his third week of employment; one total sale his fourth week of employment; 17 sales of mostly ancillary policies his fifth week of employment; no sales his sixth week of employment; nine total sales his seventh week of employment; and no sales the week he was terminated.11/ The evidence does not establish a pattern linking Petitioner's lack of productivity to any documented episodes of shortness of breath or respiratory distress. Over Petitioner's entire tenure with Respondent, he sold a total of only 33 policies. Of these, only 15 were primary health insurance policies. By contrast, using the 12-sales-per week minimum performance standard, an agent whose sales performance level was marginally adequate would have sold at least 60 primary policies over a five-week period——approximately four times more than Petitioner sold over a six-and-a-half week period. To prove this point, Respondent presented the sales productivity information for two other sales agents, whose performance was characterized as "average," for the same time period as Petitioner's employment. These agents sold approximately two times more primary policies and three times more ancillary policies than Petitioner sold during the same period. On cross-examination, Fingal characterized Petitioner's comparative sales performance as "in the lower quadrant." When asked whether it was possible that 20 to 25 percent of the sales agents performed at a lower level than Petitioner, Fingal answered "probably not." Fingal testified, persuasively, that Respondent declined to give Petitioner the requested two additional days because he asked for them when he was terminated. By that point, Respondent already had determined, based on Petitioner's consistent failure to meet minimum performance standards over his entire employment term, that Petitioner was not going to be a productive employee.12/ Respondent does not hire part-time sales agents, and at the time Petitioner was terminated, there were no sales positions that did not involve speaking on the telephone. Additionally, at the time Petitioner was terminated, Respondent did not have any available non-sales positions into which Petitioner could transfer. Moreover, even if such positions were available, there was no evidence showing that Petitioner was qualified for them. In any event, the evidence shows that Petitioner never requested to be transferred to an alternative employment position that did not entail speaking on the telephone. Petitioner did request what he characterized as an "accommodation" of two additional days, but, as discussed above, Respondent declined because it had already decided to terminate him due to his consistently inadequate performance over the term of his employment. Petitioner posited that he was not the lowest performing sales agent, but he did not present any evidence to support that supposition. He also posited that he was the only sales agent terminated that day, but, again, did not present any evidence supporting that supposition. He did not present any evidence showing that non- disabled call center sales agents who performed at or below the same level as he performed were not terminated. He presented no evidence showing that Respondent subsequently filled his position with a non-disabled person. In fact, approximately ten months after Petitioner was terminated, Respondent substantially reduced its call center sales agent work force, closed the Miramar call center, and consolidated its call center operations at its Boca Raton location, in an effort to reduce the substantial cost associated with having call centers in multiple locations. This is consistent with Respondent's assertion that Petitioner was terminated because he was not a profitable employee and that Respondent was losing money in continuing to employ him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of February, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 9th day of February, 2016.
Findings Of Fact Procedural background: By order dated July 10, 1984, notice of hearing was sent to all parties for a hearing on August 22, 1984. That hearing date was continued and rescheduled to September 11, 1984. On September 11, 1984, counsel for Petitioner moved for a continuance because he had failed to calendar the hearing and was thus not prepared. A continuance was granted upon the condition that Petitioner and counsel pay to Respondent its expenses and reasonable attorney's fees for attending the September 11, 1984, hearing. An order was subsequently entered setting the amount of expenses and attorney's fees. The Petitioner was employed as a store manager at Respondent's Majik Market Store Number 40105, Pinellas County, Florida. He had previously been a convenience store manager for 14 years, and was employed by the Respondent from December 1980 until he was terminated on August 23, 1984. The Petitioner is Black. In the relevant months prior to his termination, he was assigned to the late evening shift, 11:00 p.m. to 7:00 a.m. Ken Hinton was assigned to the 3-11 p.m. shift, and is White. Helen Lee was working the 7:00 a.m. to 3:00 p.m. shift. She is White and had worked at this store for many years. Other persons worked the three shifts on a temporary basis when one of the three regular employees had a day off. Each of the above persons, including the Petitioner, was responsible for sales of merchandise from the store, which included accounting for cash received and inventory, and protection of merchandise from theft. In the summer of 1982, the Majik Market store number 40105 experienced a loss of inventory at the end of several months of more than $1,000 in each month. These shortages were noted in normal monthly audits. Respondent requires employees to submit to a polygraph test prior to employment and when inventory shortages in a month at a single store exceed $1,000. Pursuant to that policy, all three employees of store number 40105 were asked to take a polygraph test administered by Respondent's security manager, Boyd Brown. Part-time employees were not asked to take the test. Petitioner, Helen Lee, and Ken Hinton, all were given a polygraph test. In the opinion of Mr. Boyd who administered the test, Petitioner did not answer truthfully when asked if he knew about or caused the inventory shortages. The relevant questions asked were "Did you steal money or merchandise" from the Respondent' s store. Mr. Boyd graduated from a polygraph school in Atlanta in 1972, has been licensed to administer polygraph examinations since 1974, and has worked in that field since that time. He has worked for Respondent since 1982. In Mr. Boyd's opinion, Helen Lee and Ken Hinton answered the same relevant questions truthfully. Petitioner was first notified that he was terminated by his area superviser, Richard Kenyon, who is the Group Supervisor of Majik Market stores for Pinellas County. Mr. Kenyon said he told Petitioner he was fired due to continuous inventory shortages. Petitioner testified that he was not told why he was being terminated when he met with Mr. Kenyon, but admitted that he was told that "security wouldn't allow me to work." It is apparent that Mr. Kenyon did not explain in detail why he was terminating Petitioner, and did not specifically mention failure of the polygraph as a reason. Several days later, Petitioner received a written separation notice, Petitioner's Exhibit 2, which mentioned only a "drastic" reduction in shift sales compared to other employees. On August 20, 1982, Mr. Kenyon signed an "employee separation form," Petitioner's Exhibit 3, which listed "low shift sales inventory shortages" and "shift sales drastically reduced with this employee" as circumstances surrounding the termination. Mr. Kenyon said he prepared both Petitioner's Exhibit 2 and 3 at about the same time. It does not appear that Petitioner's Exhibit 3 was shown to or given to Petitioner. In neither separation form did the Respondent mention the failed polygraph examination. The Florida Commission on Human Relations, in the process of its investigation, sought from the Respondent all the reasons for termination of Petitioner. Petitioner's Exhibits 5 through 8 contained correspondence with Jack B. Lightfoot, Director, Employee Relations, for the Respondent. Respondent's correspondence with the Commission on Human Relations does not at any point rely upon a failed polygraph examination as the reason for terminating petitioner. Paragraph 6 of a letter to Commission Representative Robert Jones states that "Polygraph not pertinent to case and results are never released without full releases because of state licensing law and Privacy Act." At the hearing on November 2, 1984, Richard Kenyon testified that it was very difficult to accurately determine why inventory shortages occur or to pinpoint responsibility. One method used is to compare shift sales to see if any particular shift is experiencing unusually low sales. Use of the polygraph test is another means. Respondent claimed to have used both methods with regard to the inventory shortages at Store Number 40105 in the summer of 1982. Mr. Kenyon testified that the late evening shift, 11:00 p.m. to 7:00 a.m., which was Petitioner's shift, was more prone to having inventory shortages, and afforded more opportunity to steal. Mr. Kenyon testified that he considered shift sales, store paperwork, the longevity of Helen Lee, the auditor's findings of inventory shortages, and the results of the security interview (polygraph) in determining whether to terminate the Petitioner. Mr. Kenyon further testified that he was most influenced by the fact that petitioner had failed the polygraph test as the basis for terminating him. Mr. Kenyon stated that he had never kept an employee who failed the polygraph test. Respondent's Exhibits 1 and 2 are summaries of the terminations of employees from Store Number 40105 from January 10, 1980 through at least August 20, 1983. Of the thirty-five (35) persons on this summary who are identified by race, two (2) were Black. This exhibit further shows that a large number of persons who were not of the Black race were terminated for reasons similar to those given for termination of Petitioner. The other Black person terminated at this store was Joe Stephens, who was the person who replaced Petitioner when he was terminated in August, 1982. Mr. Stephens was terminated on January 19, 1983. All of the persons listed on Respondent's exhibit 1 who have a circle around the coded reason for termination were terminated for inventory control related reasons, and all of these were White. Respondent's attempts to show that Petitioner's shift sales were significantly lower than other sales persons were not persuasive. Mr. Kenyon referred to Petitioner's Exhibit 4, which sets forth all shift sales at Store Number 40105 for the weeks of July 29, 1982 through October 14, 1982. He pointed to the fact that Petitioner sold only $74.75 on Friday, July 23, 1982, and then sold $186.60 the next night, while Helen Lee on the afternoon shift sold $173.99 and $270.49 for the same Friday and Saturday, respectively. But Mr. Kenyon admitted that Petitioner's late night shift was "notoriously low" in sales due to the lack of customers, and that Ms. Lee's day shift was the most productive. Further, comparison of Petitioner's Friday evening sales with the sales of other persons covering that shift after he was terminated shows their sales to be essentially the same. Similarly, sales for all persons, including Petitioner, were proportionately greater on Saturday nights. Petitioner's Saturday night sales, however, were not significantly less than the sales of other persons for the same shift. Mr. Kenyon's claim that Petitioner's sales were "drastically reduced" has no basis in fact, and indicates that Mr. Kenyon did not in fact closely analyze the sales figures with respect to Petitioner. Mr. Brown, who administered the polygraph test, disclosed the results of the tests of all three shift employees at Store Number 40105 to Mr. Kenyon. Although he did not inform the Petitioner explicitly, Mr. Kenyon did rely upon the results of the polygraph test in making his decision to terminate the employment of the Petitioner, and did inform the Petitioner that "security" had advised not to employ Petitioner any longer. There was no evidence that the polygraph test was administered or graded differently with respect to Petitioner, or that it had been used in the past to discriminate against Black persons.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that the Petitioner has failed to establish that Respondent violated Section 760.10(1), Florida Statutes, with respect to the termination of the Petitioner in August 1984. RESPECTFULLY SUBMITTED and ENTERED this 4th day of December, 1984. WILLIAM C. SHERRILL, JR. 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 4th day of December, 1984. COPIES FURNISHED: Morris Milton, Esquire P.O. Box 13517 St. Petersburg, Florida 33733 Robert D. McIntosh, Esquire P.O. Drawer 7025 Ft. Lauderdale, Florida 33338 Mr. Donald A. Griffin, Executive Director Fla. Commission of Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32301
Findings Of Fact Petitioner, Donald W. Telander, was employed by Royal Brake Centers, Inc. in its Tampa, Florida store for nine years prior to October, 1985. At that time, Respondent opened a new store in Brandon, Florida. Petitioner was assigned to that store as manager because he asked for a transfer since the new store was closer to his home in Valrico. Petitioner felt that because it was a new store in a virgin territory, in which he knew quite a few people, he would be able to make it successful. At the time of his transfer, Petitioner went into the new store as a non-working manager. This meant that he performed managerial duties but did not perform actual hands-on mechanical brake repairs, leaving those to the service manager and service technicians. In September, 1986, Petitioner was advised that he would be required to be a hands-on working manager in the future and Petitioner refused to accept that change. Though asked several times, he consistently declined to accommodate his employers and, on September 9, 1986, was terminated from employment with the company. Just prior to this time, Royal Brake Centers, Inc. was sold to a new owner, Sure Brake, Inc., and as a part of the new ownership reorganization, personnel changes were implemented throughout the more than twenty stores in Georgia and Florida. The Brandon store was not the only one which had a reduction in force at the time Petitioner was terminated. Every store in the chain was reduced by one personnel slot in September, 1986 at the same time as Petitioner's dismissal, and numerous executives within the system were either demoted in position or given a cut in pay. In early August, 1986, in advance of the proposed change and at the time the ownership transfer was effected, Mr. Sutton, General Manager of Florida operations, advised Mr. Telander there would be a requirement for all managers to become hands-on working managers. Mr. Telander does not recall that conversation. After Mr. Telander declined to become a hands-on working manager in the Brandon store, he was offered a position as a non-hands-on working manager in one of the Atlanta, Georgia stores, but declined this assignment as well as he did not want to leave the Brandon area. Only when his termination was made known to him, did he offer to perform some other job within the organization, such as driving the parts truck. His offers in this regard were rejected because the jobs he offered to do were otherwise filled. During the eleven months Petitioner was in charge at the Brandon store, it grossed in excess of $136,000.00 in sales at an acceptable cost of goods sold ratio. That store was opened in October, 1985, and by March, 1986, it did $20,000.00 per month in sales at a 21.3% cost of goods sold ratio. This is an acceptable record. He had achieved between $9,000.00 and $15,000.00 per month in sales prior to that time. Petitioner did a good job for the Respondent for the nine years he worked for it. Records which, in part, were admitted into evidence, reflect that the Brandon store ranked approximately in the middle in business done by the stores in this chain. Petitioner was never advised at any time during the eleven months he was manager of the Brandon store, that he was not doing well, and his performance was consistently increasing and improving. Mr. Sutton, while not disputing that Petitioner did an acceptable job while manager, had some reservation about reassigning Petitioner to the Brandon store because it was a new store and he did not know whether or not it would succeed. The operation has succeeded, however, and there are still two employees at that store. In April, 1986, Mr. Telander had an accident on the job for which he filed a Workman's Compensation claim. This claim was subsequently denied because it was determined he was not disabled or in need of treatment as a result of the accident. No medical documentation to support disability from that accident was, apparently, submitted. Petitioner contends that he was terminated from employment by Respondent not because of his failure to accept employment as a working manager, but because, due to his extensive medical problems, the company's insurance premiums were expected to increase dramatically. In support of this theory, John M. Topping, a former employee of the Dale Mabry store from 1984 - 1986, who went to the Brandon store to replace Petitioner when Petitioner was terminated, relates that in a discussion with Mr. Sutton which took place in Topping's office Sutton indicated the company was planning to let Mr. Telander go because of his health problems. Mr. Sutton emphatically denies this. In addition, another employee who was also discharged for refusing an assignment, Jose Rodriguez, was allegedly advised by his supervisor, Mr. Rizzo, that the company was planning to discharge Petitioner because of his health problems, which had resulted in too many claims against the company. Rodriguez' testimony, in so far as it relates to the disclosure made to him by Rizzo, however, is hearsay, and cannot be used by itself to support a finding that Petitioner was discharged because of his health. It does, however, tend to lend some credence to Topping's testimony regarding Sutton's alleged disclosure. Nonetheless, the testimony of both Rodriguez and Topping is somewhat suspect in that both were separated from employment with the company for cause. Consequently, it is found that though Petitioner did have a series of medical problems, he has failed to establish by a preponderance of the evidence that his discharge was motivated by a desire on the part of company officials to avoid paying increased insurance costs. Petitioner has also alleged that his discharge was based on his age and that he was replaced by a younger man (Mr. Topping). Admittedly, Petitioner is in his mid-fifties and Mr. Topping is some twenty years younger. However, a partial listing of Respondent's employees as of August 31, 1986 indicates there are at least two other employees older than Mr. Telander. Therefore, though the documentation submitted by Respondent is less than accurate (it reflects Petitioner and his son are the same age and that Petitioner is scheduled to retire in 2027 when he would be 95 years old), it does establish that other employees are as old or older than Petitioner, and defeats his claim that his separation was based on his age. It is clear, then, that Respondent's basis for discharging Mr. Telander is that business had dropped and the reorganization brought about thereby dictated that store managers should be hands-on working managers, involved in the day to day provision of brake maintenance. Petitioner's agreement to comply with these wishes was, unfortunately for him, too late coming after the decision was made to terminate him when he initially declined to comply with the company's wishes. Petitioner did a creditable job for Respondent during the period of his employment. His termination was not based on his inability to perform nor, as he claims, on his age or medical background. Instead, the evidence shows that Petitioner initially refused to comply with the terms of a reorganization plan and under those circumstances, his termination from service with the company appears justified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petition for Relief filed in this case by Petitioner, Donald W. Telander, be dismissed. RECOMMENDED this 25th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1988. COPIES FURNISHED: Donald W. Telander Margaret Agerton, Clerk 1101 Ravenwood Drive Florida Commission on Valrico, Florida 33594 Human Relations 325 John Knox Road Sherman Sutton Building F, Suite 240 General Manager Tallahassee, Florida 32399-1925 Florida Operations SURE BRAKE, INC., 1406 North Dale Mabry Boulevard Tampa, Florida 33607 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue in this case is whether Respondent, Winn Dixie, discriminated against Petitioner, Simon Rowland, on the basis of his disability (cerebral palsy) in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is an elderly man who has had cerebral palsy since birth. In August 2004, Petitioner went to work at the Dundee, Florida, Winn Dixie store as a courtesy clerk or bagger. His duties were to retrieve shopping carts from the parking lot, help customers, clean restrooms, and other general duties. He was not as fast a worker as others, but Winn Dixie accommodated him so that he could continue working. Petitioner claims that he was initially told he would work 20 to 25 hours per week. Winn Dixie asserts that he was given no indication of hours he might work. It is clear that Petitioner worked approximately ten hours per week during his employment. Lora Prine was the manager of the Dundee store, and Petitioner enjoyed working with Prine. Prine was later transferred to the Winter Haven store, and Petitioner asked to be transferred there, as well. There was no position open at first, but when a position became available, Prine contacted Petitioner to apply. When he was hired at the Winter Haven store, Petitioner was told that he would average between ten and 15 hours per week. While Petitioner was working at the Winter Haven store, Prine would make sure that his duties were consistent with his capabilities. She would make sure that Petitioner had assistance when lifting heavy objects, for example, when he was bagging groceries. Prine also allowed Petitioner to leave work early on many occasions due to illness and to miss work altogether at times, e.g., when he needed to visit his ailing brother in Gainesville. Petitioner freely admits that Prine and Winn Dixie accommodated him when he was working there. In November 2009, Petitioner was hospitalized for a week. The hospitalization involved an unnamed malady, but Petitioner was adamant that it did not involve a stroke. There is no evidence that Winn Dixie believes Petitioner suffered a stroke at that time. Upon release from the hospital, Petitioner was provided with portable oxygen. He said that the oxygen was supposed to be used while he was sleeping, but he used it a few times during the day right after he got out of the hospital. Prine learned from Petitioner's son that Petitioner was using oxygen. In mid-January 2010, Petitioner called Prine to see about coming back to work. Prine had just returned from medical leave and asked Petitioner to call her back in a few days. When Petitioner called back, he discussed his hospitalization and convalescence with Prine. He informed Prine of his need to utilize oxygen as a result of his illness. Prine suggested to Petitioner that maybe it was time for him to retire; Petitioner agreed with Prine that it was time. Prine annotated Petitioner's work file to indicate he was on retired status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Simon Rowland's, Petition for Relief in full. DONE AND ENTERED this 19th day of April, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2011.
The Issue The issue is whether Respondent, Wal-Mart Stores East, LP (“Walmart”), discriminated against Petitioner, Ramon Santiago Lopez (“Petitioner”), based upon his national origin or age, and/or terminated his employment in retaliation for engaging in protected activity, in violation of section 760.10, Florida Statutes (2016).1/
Findings Of Fact Walmart is an employer as that term is defined in section 760.02(7). Walmart is a national retailer. Petitioner is a Cuban (Hispanic) male. He was 62 years old when he was hired by Walmart in November 2005 and was 72 years old at the time of his dismissal. Petitioner was initially hired to work at a store in Jacksonville, but transferred to Tampa. In June 2010, Petitioner requested a transfer back to Jacksonville and was assigned to Store 4444 on Shops Lane, just off Philips Highway and I-95 in Jacksonville. The store manager at Store 4444 was Scott Mallatt. Mr. Mallatt approved Petitioner’s transfer request and testified that he “very much” got along with Petitioner. Petitioner confirmed that he never had a problem with Mr. Mallatt. Petitioner testified that when he first started at Store 4444, he had no problems. After about four months, however, he began reporting to a supervisor he recalled only as “Lee.” Petitioner described Lee as “kind of a maniac.” Lee would harass Petitioner and give him impossible assignments to accomplish. Petitioner testified that he complained repeatedly to Mr. Mallatt about Lee’s abuse, but that nothing was ever done about it. Eventually, Petitioner gave up complaining to Mr. Mallatt. Mr. Mallatt testified that Petitioner never complained to him about being discriminated against because of his national origin or age. Petitioner apparently did complain about being overworked, but never tied these complaints to any discriminatory intent on the part of Lee. Petitioner testified that Lee no longer worked at Store 4444 in January 2016. From 2010 to 2015, Petitioner worked from 1:00 p.m. to 10:00 p.m. in various departments, including Grocery, Dairy, Paper, Pet, and Chemical. In 2015, Petitioner spoke with Mr. Mallatt about working at least some day shifts rather than constant nights. Mr. Mallatt approved Petitioner’s request. In August 2015, Petitioner was moved to the day shift in the Maintenance department. As a day associate, Petitioner typically worked from 8:30 a.m. to 5:30 p.m. Assistant Store Manager April Johnson transferred to Store No. 4444 in October 2015. Petitioner reported directly to Ms. Johnson. On January 14, 2016, Petitioner was scheduled to work from 8:30 a.m. until 5:30 p.m. He drove his van into the parking lot of Store No. 4444 at approximately 7:58 a.m. He parked in his usual spot, on the end of a row of spaces that faced a fence at the border of the lot. Petitioner liked this spot because the foliage near the fence offered shade to his vehicle. Closed circuit television (“CCTV”) footage, from a Walmart camera with a partial view of the parking lot, shows Petitioner exiting his vehicle at around 8:00 a.m. Petitioner testified that he could see something on the ground in the parking lot, 50 to 60 meters away from where his van was parked. The CCTV footage shows Petitioner walking across the parking lot, apparently toward the object on the ground. Petitioner testified there were no cars around the item, which he described as a bucket of tools. Petitioner stated that the bucket contained a screwdriver, welding gloves, a welding face mask, and a hammer. The CCTV footage does not show the bucket. Petitioner crosses the parking lot until he goes out of camera range.3/ A few seconds later, Petitioner returns into camera range, walking back toward his car while carrying the bucket of tools. When Petitioner reaches his van, he opens the rear door, places the bucket of tools inside, then closes the rear door. Petitioner testified that after putting the tools in the back of his van, he went to the Customer Service Desk and informed two female African American customer service associates that he had found some tools and put them in his car. Petitioner conceded that he told no member of management about finding the tools. Walmart has a written Standard Operating Procedure for dealing with items that customers have left behind on the premises. The associate who finds the item is required to take the item to the Customer Service Desk, which functions as the “lost and found” for the store. Mr. Mallatt and Ms. Johnson each testified that there are no exceptions to this policy. Petitioner was aware of the Standard Operating Procedure. On prior occasions, he had taken found items to the Customer Service Desk. Petitioner conceded that it would have been quicker to take the bucket of tools to the Customer Service Desk than to his van. However, he testified that he believed that he could have been fired if he had taken the tools to the desk before he had clocked in for work. Petitioner cited a Walmart policy that made “working off the clock” a firing offense. It transpired that the policy to which Petitioner referred was Walmart’s Wage and Hour policy, which states in relevant part: It is a violation of law and Walmart policy for you to work without compensation or for a supervisor (hourly or salaried) to request you work without compensation. You should never perform any work for Walmart without compensation. This language is plainly intended to prevent Walmart from requiring its employees to work without compensation. Petitioner, whose English language skills are quite limited, was adamant that this policy would have allowed Walmart to fire him if he performed the “work” of bringing the tools to the Customer Service Desk before he was officially clocked in for his shift. Therefore, he put the tools in his van for safekeeping and informed the Customer Service Desk of what he had done. Petitioner was questioned as to why he believed it was acceptable for him to report the situation to the Customer Service Desk, but not acceptable for him to bring the tools to the desk. The distinction he appeared to make was that the act of carrying the tools from the parking lot to the desk would constitute “work” and therefore be forbidden, whereas just stopping by to speak to the Customer Service Desk associate was not “work.” The evidence established that Petitioner would not have violated any Walmart policy by bringing the tools to the Customer Service Desk before he clocked in. He could have been compensated for the time he spent bringing in the tools by making a “time adjustment” on his time card. Mr. Mallatt testified that time adjustments are done on a daily basis when associates perform work prior to clocking in or after clocking out. Petitioner merely had to advise a member of management that he needed to make the time adjustment. Mr. Mallatt was confident that the adjustment would have been granted under the circumstances presented in this case. Petitioner did not go out to retrieve the tools after he clocked in. Mr. Mallatt stated that employees frequently go out to their cars to fetch items they have forgotten, and that Petitioner absolutely would have been allowed to go get the tools and turn them in to the Customer Service Desk. Later on January 14, 2016, Ms. Johnson was contacted by a customer who said tools were stolen off of his truck.4/ Ms. Johnson had not heard anything about lost tools. She looked around the Customer Service Desk, but found no tools there. Ms. Johnson also called out on the store radio to ask if anyone had turned in tools. Finally, the customer service manager at the Customer Service Desk told Ms. Johnson that Petitioner had said something about tools earlier that morning. Ms. Johnson called Petitioner to the front of the store and asked him about the missing tools. Petitioner admitted he had found some tools in the parking lot and had placed them in his vehicle. Ms. Johnson asked Petitioner why he put the tools in his vehicle. Petitioner told her that he was keeping the tools in his car until the owner came to claim them. Ms. Johnson testified that Petitioner offered no other explanation at that time. He just said that he made a “mistake.” Ms. Johnson explained to Petitioner that putting the tools in his vehicle was not the right thing to do and that he should have turned them in to “lost and found,” i.e., the Customer Service Desk. Petitioner was sent to his van to bring in the tools. After this initial conversation with Petitioner, Ms. Johnson spoke with Mr. Mallatt and Mr. Cregut to decide how to treat the incident. Mr. Cregut obtained approval from his manager to conduct a full investigation and to interview Petitioner. Mr. Cregut reviewed the CCTV footage described above and confirmed that Petitioner did not bring the tools to the Customer Service Desk. Ms. Johnson and Mr. Cregut spoke with Petitioner for approximately an hour to get his side of the story. Petitioner also completed a written statement in which he admitted finding some tools and putting them in his car. Mr. Cregut described Petitioner as “very tense and argumentative” during the interview. As the interview continued, Mr. Cregut testified that Petitioner’s reaction to the questions was getting “a little bit more hostile [and] aggressive.” Mr. Cregut decided to try to build rapport with Petitioner by asking him general questions about himself. This tactic backfired. Petitioner volunteered that he was a Cuban exile and had been arrested several times for his opposition to the Castro regime. Petitioner then claimed that Mr. Cregut discriminated against him by asking about his personal life and prejudged him because of his activism. Mr. Cregut credibly testified that he did not judge or discriminate against Petitioner based on the information Petitioner disclosed and that he only asked the personal questions to de-escalate the situation. Mr. Cregut’s only role in the case was as an investigative factfinder. His report was not colored by any personal information disclosed by Petitioner. At the conclusion of the investigation, Mr. Mallatt made the decision to terminate Petitioner’s employment. The specific ground for termination was “Gross Misconduct – Integrity Issues,” related to Petitioner’s failure to follow Walmart policy by bringing the tools to the Customer Service Desk. Mr. Mallatt testified that his concern was that Petitioner intended to keep the bucket of tools if no owner appeared to claim them. Mr. Mallatt credibly testified that had Petitioner simply taken the tools to the Customer Service Desk, rather than putting them in his vehicle, he would have remained employed by Walmart. Walmart has a “Coaching for Improvement” policy setting forth guidelines for progressive discipline. While the progressive discipline process is used for minor and/or correctable infractions, such as tardiness, “serious” misconduct constitutes a ground for immediate termination. The coaching policy explicitly sets forth “theft” and “intentional failure to follow a Walmart policy” as examples of serious misconduct meriting termination. Petitioner conceded that no one at Walmart overtly discriminated against him because of his age or national origin. He testified that he could feel the hostility toward Hispanics at Store 4444, but he could point to no particular person or incident to bolster his intuition. Petitioner claimed that his dismissal was in part an act of retaliation by Ms. Johnson for his frequent complaints that his Maintenance counterparts on the night shift were not adequately doing their jobs, leaving messes for the morning crew to clean up. Ms. Johnson credibly testified that Petitioner’s complaints did not affect her treatment of him or make her want to fire him. In any event, Ms. Johnson played no role in the decision to terminate Petitioner’s employment. Petitioner’s stated reason for failing to follow Walmart policy regarding found items would not merit a moment’s consideration but for Petitioner’s limited proficiency in the English language. It is at least conceivable that someone struggling with the language might read the Walmart Wage and Hour policy as Petitioner did. Even so, Petitioner was familiar with the found items policy, and common sense would tell an employee that he would not be fired for turning in customer property that he found in the parking lot. At the time of his dismissal, Petitioner had been working at Walmart for over 10 years. It is difficult to credit that he was completely unfamiliar with the concept of time adjustment and truly believed that he could be fired for lifting a finger to work when off the clock. Walmart showed that in 2016 it terminated three other employees from Store 4444 based on “Gross Misconduct – Integrity Issues.” All three were under 40 years of age at the time their employment was terminated. Two of the employees were African American; the third was Caucasian. Petitioner offered no evidence that any other employee charged with gross misconduct has been treated differently than Petitioner. At the hearing, Petitioner’s chief concern did not appear to be the alleged discrimination, but the implication that he was a thief, which he found mortally offensive. It could be argued that Mr. Mallatt might have overreacted in firing Petitioner and that some form of progressive discipline might have been more appropriate given all the circumstances, including Petitioner’s poor English and his unyielding insistence that he never intended to keep the tools. However, whether Petitioner’s dismissal was fair is not at issue in this proceeding. The issue is whether Walmart has shown a legitimate, non-discriminatory reason for terminating Petitioner’s employment. At the time of his dismissal, Petitioner offered no reasonable explanation for his failure to follow Walmart policy. Mr. Mallatt’s suspicion regarding Petitioner’s intentions as to the tools was not unfounded and was not based on any discriminatory motive. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Walmart for his termination. Petitioner offered no credible evidence that Walmart’s stated reasons for his termination were a pretext for discrimination based on Petitioner’s age or national origin. Petitioner offered no credible evidence that his termination was in retaliation for his engaging in protected activity. The employee who was allegedly retaliating against Petitioner played no role in the decision to terminate his employment. Petitioner offered no credible evidence that Walmart discriminated against him because of his age or national origin in violation of section 760.10.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Wal-Mart Stores East, LP, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 25th day of October, 2018.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was the victim of a discriminatory employment practice perpetrated by the Respondent by the alleged discharge of the Petitioner on account of her handicap.
Findings Of Fact The Respondent, Sunshine Jr. Stores, Inc., is a Florida corporation, with the principal offices located in Panama City, Florida. The Respondent operates convenience stores in Marianna and Alford, Florida, along with numerous other locations. On December 14, 1990, the Petitioner, Jo-Ann Duffy, was hired as a sales associate and placed in the Marianna store. She indicated in her job application that she was willing to work in Chipley, Bonifay, Marianna and Panama City, Florida. The Petitioner received her employee training in the policies and procedures under which the Respondent operates. She received training in policy no. 030-040, the robbery/theft policy. She signed a "statement of understanding" to that effect, acknowledging that she had received such training. That statement of understanding acknowledges that if the Petitioner violated company policies, such as the robbery and theft policy, her employment was subject to termination by the Respondent. The Petitioner was described as a good worker, initially; and she had a good working relationship with her supervisor, Mr. George Susanka. Mr. Susanka was the store manager and ultimately received some complaints regarding the Petitioner's attitude toward customers. He verbally counselled her regarding this matter. On April 25, 1991, the Petitioner received a written reprimand for failure to perform assigned duties, specifically, noncompliance with policies and procedures, including with regard to inventory shortages. The reprimand was placed in her personnel file. All of the employees at that store, Store No. 190, were also given written reprimands concerning these matters. On May 2, 1991, the Petitioner suffered an injury due to slipping and falling on a wet floor at the Alford Store No. 190. The Petitioner was taken to the emergency room and treated for her injuries. The physicians determined that the Petitioner had suffered a cervical spondylosis, with no evidence of acute injury. After a two-week leave of absence, the Petitioner received permission to return to work from her doctor, Dr. Laubauah, an orthopedist. On June 14, 1991, he released her to return to work with restrictions on her bending and lifting of weight. The Respondent was aware of the Petitioner's work restrictions and that she was receiving worker's compensation benefits from the Respondent as a result of her injury. The Petitioner returned to work at Store No. 190 in Alford, Florida, under the supervision of Renate Ovaldson, who was then store manager. The Petitioner was placed on light duty which is generally defined as merely operating the cash register. She was allowed to sit on a stool behind the counter while she worked, in view of her condition. The Petitioner was later transferred to Store No. 226 in Marianna, Florida. That store was under the supervision of George Susanka, the Marianna store manager. The basis for transferring the Petitioner to that store was that Mr. Susanka was shorthanded and needed another sales associate. Mr. Susanka had previously maintained a positive working relationship with the Petitioner at Store No. 190, and the decision to transfer the Petitioner to Store No. 226 was deemed to be beneficial to the store and to Mr. Susanka. The Petitioner was given light duty at Store No. 226, also, and was given a stool to sit on while she worked. Mr. Susanka was aware that she was taking medication for her back injury. Mr. Susanka's supervisor, Keith Shipman, was not aware that the Petitioner was taking medication. Store No. 226 was considered a less busy store in terms of sales volume; however, the neighborhood was considered to be less desirable. Mr. Susanka soon began receiving verbal complaints regarding the Petitioner's attitude toward customers at Store No. 226. He received a verbal complaint from a Ms. Virginia Smith stating that the Petitioner had been flirting with several men one evening at the counter and had permitted them to go into the store cooler and leave the store with beer without paying for it. A written statement signed by Virginia Smith regarding this incident was later received by the Respondent and placed in the Petitioner's personnel file. Mr. Susanka confronted the Petitioner concerning this incident and asked her if she had been afraid to report the theft, and she indicated that she was not. Mr. Susanka and the assistant store manager, Mr. Coley, conducted a "night ride", whereby they parked their car across the street from the store to observe activities at the store while the Petitioner was on duty. Mr. Susanka witnessed a customer walk in the store and walk out with a small item without paying for it. The only door in which to enter and exit the store was a few feet directly in front of the cash register counter. Mr. Susanka submitted a written statement on the incident, which was placed in the Petitioner's personnel file by the Respondent. Mr. Susanka discussed the various complaints he had received concerning the Petitioner's attitude, performance, and the incident he observed with Mr. Coley with his district manager, Keith Shipman. Mr. Shipman had been aware of prior complaints which the Respondent had received about the Petitioner's attitude with customers, as well. Based upon the documents contained in the personnel file, customer complaints and the fact of customers leaving the store without paying for merchandise while the Petitioner was on duty, and Mr. Susanka's relation of the various incidents, Mr. Susanka and Mr. Shipman made a decision to terminate the Petitioner. The stated reason for Petitioner's termination was violation of company policy and poor customer relations. Mr. Susanka completed an employee status report terminating the Petitioner on July 24, 1991. That report stated that the reason for termination was "on Saturday, July 20, 1991, the clerk, Jo- Ann Duffy, was talking and laughing with six guys at the counter and at that time there was three to four guys in the cooler and walked out with beer and did pay for it and also has a bad attitude with customers". Mr. Susanka testified that the statement had been written in error and it should have read "did not pay for it". The employee status report was signed by Mr. Susanka and Mr. Shipman and placed in the Petitioner's personnel file. Mr. Shipman stated that due to the fact that inventory control was so important in the convenience store business, the Respondent simply could not afford to keep in its employee a sales associate who allowed merchandise to leave the store unpaid for. The Respondent's disciplinary and termination policy no. 040-003 generally states the procedures for discipline and termination. The robbery/theft Policy No. 030-040 states that an employee who violates the guidelines of the robbery and theft policy (as the Petitioner did) is subject to disciplinary action up to and including dismissal.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's petition for relief. DONE AND ENTERED this 30th day of April, 1993, in Tallahassee, Florida. P. MICHAEL RUFF 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 6th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5313 Petitioner's Proposed Findings of Fac A-C. Accepted. D. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. E-F. Accepted. G-H. Accepted, but not in itself materially dispositive. I-J. Accepted, but not in themselves materially dispositive. Rejected, as not in accord with the greater weight of this witness' testimony which was that some violations, such as allowing theft to occur, are the proper subjects of first occurrence terminations. Accepted, but not itself material. Rejected, as immaterial. Rejected, as immaterial given the greater weight of the testimony and evidence, which the Hearing Officer has accepted and embodied in the above Findings of Fact. Rejected, as immaterial. Accepted. Accepted, but not materially dispositive. Accepted, but not materially dispositive in itself. S-T. Accepted, but not itself materially dispositive. Accepted, but not itself materially dispositive. The Respondent's position in this case does not depend upon all low inventory being the fault of the Petitioner. Accepted, but not itself materially dispositive. Respondent's Proposed Findings of Fact 1-24. Accepted. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Ms. Jo-Ann Duffy Route One, Box 221-X Chipley, FL 32428 Kelly Brewton Plante, Esq. TAYLOR, BRION, BUKER & GREENE 225 South Adams Street Suite 250 Tallahassee, FL 32301
The Issue The issue for consideration in this hearing is whether the Petitioner, Lee C. Smith, was unlawfully discriminated against by the Respondent, Food Lion, Inc., on the basis of his marital status.
Findings Of Fact At all times in issue, Respondent, Food Lion, Inc., operated its food supermarket, No. 728, in Tampa, Florida. Petitioner, Lee C. Smith, was employed by Respondent as manager. Petitioner was discharged from employment with the Respondent on December 2, 1990. The "constructive advice memo" supporting the discharge indicated the action was being taken because of "dishonesty - fraud - reputation of manager." The background to the charge related that 9 checks, totalling $1,100.00 were cashed by Petitioner's wife and "possibly endorsed or OK'd by Mr. Smith." The memo went on to further state that the decision [to discharge] was based on current evidence "and also failure to maintain mgt. role." The memo further indicated that while in management training, Mr. Smith had a problem with returned checks and "was documented on same." The memo was signed by Mr. Legett and was also signed by the Petitioner on December 5, 1990. Petitioner claims that when he first learned of the check situation, during the period March through June, 1990, when he was a management trainee, on his own initiative and without prompting by anyone in authority, he notified his store manager and assistant manager of the situation and suggested they call in a tel-alert advising all Food Lion stores in the area not to cash any checks for his wife. He was not discharged at that time. He also claims that after he was promoted to manager, his wife again started passing bad checks without his knowledge. When he found out about them, in October and November, 1990, before he was discharged, he paid some of them off. He also instituted another tel-alert through the Dunedin store, where some of the checks had been written, but he did not alert the people in his own store not to cash them. Apparently, Mrs. Smith cashed some checks in Store 728 but only one was approved by Petitioner. An area-wide listing of dishonored checks shows some that were cashed by Mrs. Smith. This listing is sent to each store and probably came to Petitioner's store. Petitioner admits he may have seen it but most of the checks written by Mrs. Smith were approved by the assistant manager. Whenever he saw a check listing with his wife's name on it, he redeemed that check, but the listing he saw was for his store only. He claims not to have seen listings from other stores, but from time to time, the manager of other stores would call him to ask if they could take her checks. He claims always to have said no. None of the checks relied upon by Respondent in the discharge action were admitted in evidence. Petitioner claims that at the time in issue, he had no knowledge his wife was writing the bad checks. During this period, he and his wife were having domestic difficulties. Some of the time they were living together and some of the time they were separated. Even when they were separated, she continued to come into the store for purchases and to cash checks. Petitioner claims that as a result of his discharge by the Respondent he has been damaged in a total amount of between $452,122.55 and $518,122.55, including legal fees. These sums are based on his salary at the time of his discharge, modified by certain assumptions regarding sick pay, bonus, profit sharing and holiday pay. At the time of his discharge, Petitioner was earning $550.00 per week and claims he was due an increase to $610.00 per week. Therefore, he claims, his base salary for December, which he was not paid, would have been $2,440.00. Added to that, he claims is 2 percent for sick pay totalling $572.00, a 2 percent bonus of $572.00, a 15 percent profit sharing pay out of $4,290.00 and holiday pay for 6 days at $110.00 per day, for $660.00. This additional amount totals $6,094.00 which, when added to the base salary claimed due amounts to $8,534.00 for December, 1990, not paid to him because of his termination. His base salary of $610.00 per week for calendar year 1991, would have totaled $31,720.00 and his insurance benefit would have been an additional $1,242.60. This totals $32,962.60. Added to that, he claims are the bonuses, sick pay, profit sharing, profit forfeiture, holiday pay at $122.00 per day for 6 days, and two weeks vacation ($1,220.00) for a subtotal of $9,566.00. When this figure is added to his base for 1991, he claims his total income from Respondent would have been $42,528.60 for the year. However, when his actual earnings from Kash & Karry, with whom he found employment after he was discharged by Respondent, in the amount of $13,941.58 are deducted, his actual loss for calendar year 1991 is, he claims, $28,587.60. Following the same formula, using identical factors but with slightly different amounts for each due to a projected increase in weekly salary, the net loss to Petitioner is claimed to be $19,903.32 for calendar year 1992, and through March 5, 1993, the date of the hearing, his calendar year 1993 loss is claimed to be $6,474.39. The sum total of the yearly losses is $71,109.77 to which Petitioner has added a 1 percent per month interest figure which totals $19,910.73 for the 28 months in issue. The sum of these figures is $91,020.50. To this Petitioner has also added a 4 year loss of projected profit sharing pay outs had he stayed with Food Lion which he estimates at between $30,000.00 to $45,000.00 per year. At $30,000.00 the total would be $120,000 to which Petitioner has added an unexplained $200,000.00. Adding this to the $120,000.00, and the $91,020.50 amounts to $411,020.50 to which Petitioner has added 10 percent legal fees of $41,102.05 for a grand total of $452,122.55. Applying the same calculations to a loss of profit sharing figure of $45,000 per year for 4 years, and the unexplained $200,000.00 addition, with similar 10 percent legal fees and the actual claimed out of pocket loss described above, his claim amounts to $518,122.55. In support of his claim of Food Lion earnings, Petitioner submitted only one pay slip, for the period ending 12/01/90 which showed his regular earnings to be $1,100.00 and special earnings of $650.00 for the period. The evidence he presented is insufficient to support his monetary claim. His earnings at Kash and Karry are not questioned. Petitioner's wife's bad check activity first came to light when he was a manager trainee and he paid those checks off immediately. However, in the latter part of 1990, a loss prevention investigation was initiated into alleged cash shortages and bad checks at Petitioner's store. Mr. Satterfield, the Area Perishable Supervisor was told by the investigator that Petitioner was aware of his wife's passing of bad checks. Mr. Satterfield also talked to other employees. One of these, Mr. Koonce, cashed several checks for Mrs. Smith which had been approved by one of the managers. Petitioner was one of those approving managers on only one occasion. Based on that one approval, which he does not know to have been for a subsequently dishonored check, he merely assumed the Petitioner approved the others. An unsworn written statement to the investigator, Mr. Greer, by Kimberly Lantrip, an employee of another Food Lion store, indicates that Petitioner told the grocery manager it was OK to cash his wife's checks and hid the bad check register bearing his wife's name for several weeks when it came in. This evidence is clearly double and even triple hearsay evidence, however, and though admissible here, is of minimal probative value. Furthermore, neither were the checks themselves nor photocopies thereof were offered. Mrs. Smith, by sworn affidavit, also hearsay, indicated that at no time did Petitioner have any knowledge she had written checks in Food Lion stores, nor did he ever approve any for her or tell anyone else to cash them. This statement carries little evidentiary weight. Petitioner clearly had knowledge of his wife's prior check writing activity and, in fact, paid off several. He obviously failed to take appropriate action to correct her activity or to preclude her writing other checks at Food Lion stores. After the investigation, Satterfield met with Petitioner and other supervisors, and as a result of that meeting, where at least one supervisor recommended termination, Mr. Satterfield, who had observed Petitioner over the months in both training and as assistant manager and saw him do nothing wrong, nonetheless decided to put the Petitioner on indefinite suspension with pay pending further investigation. Mr. Satterfield then notified the Regional Supervisor and Mr. Legett, the Area Supervisor, of what he had done. The next he heard about it was when the constructive advice memo terminating Petitioner was issued. He thereafter had nothing more to do with the matter. Mr. Legett was satisfied at the way Petitioner took care of the first series of bad checks written by Petitioner's wife in the Spring of 1990. However, based on what he was told by Mr. Satterfield, and the information contained in the loss prevention investigation, he concluded that Petitioner was aware of the second series of bad checks his wife was writing and did not attempt to stop them. Based on this, which he found showed fraud and dishonesty on Petitioner's part, he decided to discharge Petitioner Before doing so, however, he discussed the matter with Food lion's Vice President for Personnel who agreed with the decision to discharge. While Petitioner's failure to take corrective action to preclude his wife from cashing any further checks at Food Lion stores reflects on his management ability and may support termination for that reason, absent a clear showing of his conspiracy with her, his encouragement of her actions, or his knowing acquiescence in her misconduct, it does not rise to the level of fraud or dishonesty. Regarding Petitioner's claim for damages, Mr. Legett indicates a proposed raise of $60.00 per week in 1990 is not justified. A maximum raise is $20.00 per 6 month increment based on performance. Not all managers get raises each year. In addition, continuing employees do not get paid for holidays they don't take off. If the time is not taken, it is lost. However, if a person is terminated, any unused accrued vacation time for that year is paid. By the same token, sick days are not compensated. Employees receive 2 percent of salary as a sick pay bonus at the end of the year unless too much sick leave is taken. In general, a sick day taken once a week results in a net loss, not earned bonus. Also, profit sharing is not a constant but varies year by year. In 1990 and 1991, the amount was 15 percent. The amount for 1992 had not been determined as of the hearing, but 15 percent is a maximum. In any case, employees do not become eligible to participate in the profit sharing plan until they have been with the company for 5 years. If the employee leaves before the five years are up, the accrued but unpaid profit sharing maintained in his name is forfeited and paid on a pro rata basis to other employees. The most Mr. Legett, an individual relatively high up in management, ever got was 2 percent. He has never received anywhere near 5 percent of his salary. Effective January 1, 1993, employees contribute $21.00 per month for insurance. Prior to that time, there was no contribution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Lee C. Smith's Petition for Relief from Unlawful Discrimination based on marital status, relating to his discharge from employment by Respondent, Food Lion, Inc., be dismissed. RECOMMENDED this 13th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 13th day of April, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-6047 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: None submitted. FOR THE RESPONDENT: Respondent's counsel submitted Proposed Findings of Fact but failed to number them. They will be treated paragraph by paragraph, however, in this appendix. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and, except for references to hearsay evidence, incorporated herein. Mr. Koonce, the only individual interviewed by the investigator who appeared at hearing indicated he had seen Petitioner approve only one check for his wife and assumed from that, he had approved others. The balance of the hearsay evidence, though admissible for a limited purpose, is considered of minimal probative value. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Not a Finding of Fact but more a comment on the state of the evidence. Accepted only as to the showing that the issue of Petitioner's knowledge of his wife's check writing activities was a part of the related case involving discrimination based on race. Irrelevant to the issues herein. COPIES FURNISHED: Lee C. Smith P.O. Box 260922 Tampa, Florida 33685-0922 Steven C. Ellingson, Esquire Arnold & Anderson 1200 Peachtree Center Cain Tower 229 Peachtree Street, N.W. Atlanta, Georgia 30303 Margaret Jones Clerk Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether the Respondent discriminated against the Petitioner on the basis of his disability, and whether the Respondent’s discharge of the Petitioner from employment was unlawfully based upon his disability, in contravention of Section 760.10, Florida Statutes (2003), and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. Section 1201 et seq.
Findings Of Fact The Petitioner worked for the Respondent from September 17, 1999 through July 9, 2002. At the time of his termination from employment on July 9, 2002, the Petitioner worked in the Respondent’s Pensacola, Florida, Store No. 1605 under the supervision of Front End Assistant Manager Jackie Lewis and Store Co-Manager Rodney Snyder. The Petitioner’s last position with Wal-Mart was as a “People Greeter,” working eight-hour shifts. The Petitioner suffers from diabetes. On his employment application, the Petitioner indicated that he was able to work any scheduled hours and was seeking full-time employment. The Petitioner’s diabetes did not interfere with his ability to secure full-time employment. The Petitioner began his employment with the Respondent in Pensacola, Florida, Store No. 1222 as a maintenance associate, handling janitorial tasks. During the time he worked as a maintenance associate the Petitioner had his diabetes “under control.” The Petitioner completed an ADA “Job Matrix” form provided by the Respondent, on which he represented that he was able to perform all essential functions of his position without the need for any accommodation. No mention was made by the Petitioner at that time of his diabetic condition or resulting need for an accommodation. The Petitioner had “run-ins” with store management during his tenure as an employee of the Respondent. The Petitioner had a “run-in” with a Meat Department Manager over an assignment to mop-up a sugar spill, which the Petitioner refused to do. The Petitioner complained about supplies, or the lack thereof, at the store. The Petitioner admitted that there were tasks he simply refused to perform. The Petitioner had several problems with his co- workers and managers. On August 28, 2001, the Petitioner’s poor work attitude was cited on his annual performance appraisal, which was termed “below expectations.” During the course of his employment with the Respondent, the Petitioner was disciplined on several occasions through Wal-Mart’s “coaching” process. On February 17, 2001, the Petitioner received a “written coaching” for his failure to perform assigned job tasks, and he was informed that he needed to improve his job performance. Neither the annual performance rating nor the “coaching” session was caused by the Petitioner’s medical condition. On July 31, 2001, the Petitioner received a more severe form of coaching, a “Decision-Making-Day.” The coaching indicated that the Petitioner failed to complete jobs in a timely manner, questioned the authority of his managers, and had trouble following the directions of supervisors. The Petitioner was informed that if his performance did not improve he would be terminated. The Petitioner was given a day off to consider whether he wanted to continue to work for the Respondent and to prepare a performance action plan. In his performance action plan, the Petitioner indicated he would be more productive and approach his work with a more positive attitude. Following his performance action plan, the Petitioner requested and was granted a transfer to the position of "People Greeter," who works at the front of the store and welcomes customers as they enter the store. A "People Greeter" also performs certain tasks related to security. The Petitioner claimed to have given the Respondent’s personnel office a doctor’s note on June 27, 2002, indicating that the Petitioner needed a break every two hours in order to properly regulate his medication. The note made no mention of the Petitioner’s diabetic condition. The Respondent disavows any knowledge of receipt of a note concerning the Petitioner’s medical condition and need for frequent breaks. The Petitioner claimed that he was not always given the breaks he needed to regulate his medication. Given the nature of retail operations, in terms of the ebb and flow of shoppers entering the store, regular breaks are not always possible. Prior to the alleged submission of the doctor’s note on June 27, 2002, the Petitioner received coaching from his supervisors. On June 22, 2002, the Petitioner received verbal coaching from Ms. Jacqueline Lewis concerning his lack of respect for Customer Service Managers and other store management. Ms. Lewis received a statement from the Petitioner’s trainer indicating he refused to follow Wal-Mart policies for the "People Greeter" position. Ms. Lewis received written complaints from other co- workers of the Petitioner concerning his performance as a "People Greeter." All of these statements were factors in Ms. Lewis’ evaluation of the Petitioner’s performance as a "People Greeter." On the day of his termination, the Petitioner shouted 75-feet across the front of the store to the Customer Service Manager, requesting that she contact Ms. Lewis about issues taking place in the front of the store. He called a second time when his first request went unheeded. This behavior took place in front of store customers. Based upon the shouting incident, the Petitioner’s violation of policies, and the written complaints from co- workers, the Respondent terminated the Petitioner’s employment on July 9, 2002. The specific reasons given for the Petitioner’s termination were his inability to perform his job and for his not being respectful of other associates. The Petitioner believes that his co-workers and supervisors were aware of his diabetes. No co-workers or supervisors of the Petitioner testified at hearing that they were aware of the Petitioner’s diabetes. Ms. Lewis, the Front End Assistant Manager in the store, was not aware of the Petitioner’s diabetes. Ms. Carolyn Miller, the head Customer Service Manager for the store, was not aware of the Petitioner’s diabetes. Mr. Snyder, the store co-manager, was not aware of the Petitioner’s diabetes. Upon termination from employment with Wal-Mart, the Petitioner secured a Florida security guard license on his first try and obtained work as a security guard. The Petitioner was able to work a full eight-hour shift while employed by the Respondent. The Petitioner was able to perform the duties of his maintenance position when he held that job. At the time of his termination, the Petitioner was actively seeking a new position with Wal-Mart in the heating and ventilation area. When the Petitioner was unable to perform tasks associated with his employment, he attributed this to “old age,” and not his diabetes. The Petitioner planned to open his own steam cleaning and air conditioning repair business while he worked at Wal-Mart and felt physically able to do so. Since his termination from Wal-Mart, the Petitioner has secured gainful employment as a security guard at various factories, involving activities such as walking and driving trucks. The Petitioner has plans to rewire his house by himself. The Petitioner’s diabetes is kept in control by medication, and he does not require insulin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the Respondent did not discriminate against the Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of April, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 20th day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John M. Dickson 7870 Castlegate Drive Pensacola, Florida 32534-4555 Richard L. Ruth, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Haverty's is a corporation that employs many more than 15 employees in many stores. Haverty's sells furniture. The store in which the allegations of this complaint arose is located at 1175 Eglin Parkway in Shalimar, Florida. Unless noted elsewhere, when Haverty's is mentioned, the reference is to the Shalimar store. Ms. Jester is a woman who resides in Niceville, Florida. She obtained a job at Haverty's and began working there as a sales associate on June 16, 2003. She was hired by Gary Hodge, who was the store manager. She was a sales associate during the entire time that she was employed by Haverty's. A sales associate works on a straight commission and the commission is not paid until the furniture is delivered. A sales associate, after the first three months on the job, is required to sell at least $40,000 in product each month. There are generally ten to fifteen sales associates on the floor at any given time. The environment is highly competitive. There is a computer numbering system in place, called the "up" system, which is used to determine who may approach a customer who walks into the store. If a sales associate initially helps a customer and later the customer is helped by another sales associate, the commission, if a sale is made, is split between the two. During Ms. Jester's time as a sales associate she grossed about $26,000 per year. Ms. Jester noticed shortly after she began her employment that there existed at Haverty's a clique of salespersons, including Michael Herring, Charles McEwen, Buzz Howard, and "Travis." Also in this clique was a woman named "Melanie" and another named "Trudy." This loosely affiliated group was sometimes referred to by Ms. Jester and others, as the "Good Old Boys Club," even though women were members of the group. Members of "Good Old Boys Club" would say unpleasant things to her, would make comments about her, and would sometimes make her feel uncomfortable. Sometimes sexual comments were made about her, and sometimes sexual comments were made about other female employees. On occasion, however, Ms. Jester made sexual comments. The "Good Old Boys Club" falsely accused her of stealing sales on occasion. Sometimes persons in the alleged "Good Old Boys Club" would get her so upset that she would have to leave the floor. Her absence resulted in them making more sales, and thus, more money. If a product is sold at a discount, or if a particular item is given to a person without charge to enhance a sale of other items, the official listed price must be overridden in the store computer by using an override code. A sales associate is not usually provided with the code and if, on a particular occasion, a sales associate is given the override code, it is subsequently changed by management. On one or more occasions Charles McEwen did overrides on his own, and at least twice he entered codes for Ms. Jester. Buzz Howard used an override code once. Managers at the store made exceptions to the override policy. Lee Keiran, who was a sales associate, was also a "keyholder," and he had at all times, the authority to make overrides. However, the manager, Mr. Hodge or Michael Herring, when he was promoted to floor manager, would generally enter override codes. Obtaining someone to enter an override often added additional time to completing a sale, and personally having an override code gave the holder a slight advantage over a sales associate who did not have one. Ms. Jester was never provided with her own override code. She believed, incorrectly, that this was because of her gender. Sales meetings were held at Haverty's every Saturday morning at 8:30 a. m. All sales associates were required to attend. At these meetings the manager reiterated rules and informed employees about new rules. New merchandise would be discussed and products being specially advertised would be discussed. During the time of Ms. Jester's employment, the meetings would usually be conducted by Mr. Hodge, the store manager. On one occasion, in or near the month of January 2005, Mr. Herring conducted the sales meeting. There were twelve or thirteen sales associates at this meeting. Mr. Herring, after addressing other subjects, discussed the rules concerning checking out fabrics. He reiterated the rule that sales persons must "check out" fabric samples prior to allowing customers to depart the store with them. "Checking out" fabric requires a credit card slip signed by the customer. Thereafter, Mr. Herring grasped some fabric and raised it over his head and said to Ms. Jester, "Alma, come get your fabrics." Ms. Jester rose from her chair and walked in front of everyone and took the fabric from his hand. As she walked away he said, "Unacceptable." This was at the conclusion of the meeting. Ms. Jester found this to be humiliating. Ms. Jester placed the fabrics on her desk and went straight to Mr. Hodge to complain. She and Mr. Hodge had a conversation. He inquired as to what she wanted him to do about it. She said she wanted Mr. Herring to apologize and he said, "I'll have him talk to you." Ms. Jester informed Mr. Hodge that she was sick and was going home. Mr. Herring never apologized to her. During the time Ms. Jester worked at Haverty's no men were singled out and criticized at sales meetings. During the aforesaid time, some of the men have allowed customers to take fabrics out of the store without being "checked out" and no evidence was adduced that they were rebuked either privately or publicly. Charles McEwen came to work late on more than one occasion. On one occasion when he reported late, an odor of alcohol could be detected on his person. However, he was not under the influence of alcohol. He was never reprimanded for being late or smelling of alcohol. On Sundays sales associates were required to come to work at 11:30, one-half-hour before opening, to clean, and straighten up the store. Employees would enter the building on Sundays through a side door, which was propped open by a rock. On one occasion Ms. Jester reported to the building five minutes late. The rock had been removed and the door was closed. She beat on the door and eventually someone opened it. Ms. Jester believed that she was locked out purposefully, but the evidence indicates only that someone moved the rock, causing the door to close, which resulted in her inability to enter the building immediately upon arrival. Male sales associates "Trent" and Bob Humphries were often late. Male sales associate "Travis" often left early. None of these men were disciplined for tardiness or for departing early. Ms. Jester complained to Mr. Hodge about male sales associate Michael Herring. She informed him that Michael was a male chauvinist pig. Mr. Hodge agreed and suggested that she get over it. Once Buzz Howard called her a stupid liar on the sales floor in front of three people. Ms. Jester was upset about this. She complained to Mr. Hodge. He suggested to her that Mr. Howard's intent was to get her off the sales floor so she couldn't compete with the other sales associates. He said she should, "Cowboy up." In April 2005, a woman named Ashley Bloomfield walked into the store. Ms. Jester spent an hour and a half showing her bedroom suites. Ms. Bloomfield eventually indicated that she was going to cogitate about the purchase, and departed the store. Before she left Ms. Jester gave her a business card so that she could ask for her when she returned. Customers often spend a lot of time looking at furniture, depart, and subsequently return. These customers are called, "be-backs." Sometimes "be-backs" return, and sometimes they don't. A few days after her visit, Ms. Bloomfield called for Ms. Jester on the telephone. She spoke to sales associate Bob Humphries who told her that Ms. Jester was not present. On Wednesday, April 20, 2005, Ms. Bloomfield returned to Haverty's and was assisted by Buzz Howard. Mr. Howard told her that he would ring up the sale but would credit the sale to Ms. Jester. The transaction was completed, but Ms. Jester was not given any credit for the sale. On a Thursday subsequent to Ms. Bloomfield's visit Ms. Jester entered the side door of the store and observed Buzz Howard at the office with Ms. Bloomfield. The office is the place where customers arrange payment for purchases. Mr. Howard informed Ms. Jester that when Ms. Bloomfield walked in the door she asked for Mr. Humphries, that he, Mr. Howard helped her, and that he, and Mr. Humphries, were going to split the commission. Pursuant to policy, Ms. Jester should have gotten half of the commission and a three-way split is not, she believes, possible. Ms. Jester complained to Mr. Hodge about this. Mr. Hodge explained that Ms. Bloomfield had called when she was absent and Mr. Humphries had spoken with her on the telephone. Mr. Hodge said the commission would be subject to a three-way split. The next day Ms. Bloomfield called Ms. Jester to inquire why Mr. Humphries' name was on the sales slip and not hers. When she learned that Ms. Jester was not going to get credit for the sale, she asked Ms. Jester what to do. Ultimately, Ms. Jester told her she should call "management" in Pensacola and gave her the number for "management." Specifically, she referred her to Hunter Wrisley or Zack Mattson. Ms. Bloomfield did call "management" and spoke to Zack Mattson who in turn called Ms. Jester. Mr. Mattson told Ms. Jester, "Don't do anything about this. I will get back to you." Although Ms. Bloomfield testified that Mr. Mattson intimated that Ms. Jester would get all of the commission if she was working solely with Ms. Bloomfield, this did not occur. When Ms. Bloomfield learned that Ms. Jester did not get all of the commission, she announced that she would return to the store, return the merchandise previously purchased, and then would re-purchase it from Ms. Jester. Ms. Jester called Mr. Mattson and left a message on his voicemail informing him of Ms. Bloomfield's plan of action. He did not respond to her immediately. Ms. Bloomfield returned to the store and the office manager, "Michelle," with the assistance of Ms. Jester, deleted the previous sale, and thereafter modified the transaction to reflect Ms. Jester as the seller. Mr. Mattson determined that this event ran afoul of his instruction to, "Don't do anything about this. I will get back to you." Shortly thereafter, Mr. Hodge called Ms. Jester to his office. Mr. Mattson was on the speaker phone. Mr. Mattson announced that she had deliberately disobeyed a direct order. After Mr. Mattson terminated his participation in the conversation, Ms. Jester told Mr. Hodge that she was too upset to continue working that day and that she must go home. Thereafter, she departed the premises. The next day Mr. Hodge directed that Ms. Jester report to his office and she did as requested. Mr. Hodge, in the presence of Lee Keiran, required her to sign a disciplinary form which recited that she had been insubordinate and had discussed commissions with a customer, an activity which is against Haverty's policy. The form further informed that she was suspended with no pay for three days. She signed the form and went home. When Ms. Jester returned to work she asked Mr. Hodge if she could have leave so that she could go on vacation. He denied her request. She submitted a letter of resignation to Mr. Hodge on May 20, 2005. The letter stated that she had put up with being mistreated by the "Good Old Boys Club" for the last time. However, this is not found to be a constructive termination. She gave two weeks notice but Haverty's discharged her on May 22, 2005, in accordance with their policy on notice of termination. Ms. Jester also sent a letter of resignation to a Mr. Smith of Haverty's corporate office in Atlanta. The corporate office did not respond. Haverty's employee Charles McEwen once told a customer named Schneider to ask for Ms. Whalls when she returned on a Wednesday after a Tuesday visit because he would not be working on the proposed return date. He asked Ms. Whalls for her business card to give to Ms. Schneider so that she would be sure and remember to ask for Ms. Whalls. There was some minimal discussion of commission splits at this time. However, this discussion did not result in any further involvement by the customer in the commission structure. Although evidence was adduced indicating that some of the sales associates engaged in underhanded methods designed to deprive their fellow workers of commissions, and that some had their own override codes, and others had tardiness excused, there was no evidence that any other sales associate at Haverty's involved a customer in a dispute over commissions. Although during the time of Ms. Jester's employment no one other than Ms. Jester was rebuked in front of the sales associates, being rebuked is not the type of employment practice that can be an adverse employment action. The facts in this case demonstrate that being a sales associate at Haverty's is extremely competitive. Because of the highly competitive, straight commission sales environment, employees engaged in activities designed to subvert the efforts of their fellow employees to earn commissions. Sales associates often made crude and inappropriate remarks that were upsetting to those who were the targets, in an effort to reduce competition. Ms. Jester's supervisors tolerated this behavior. Undoubtedly, a tough environment existed at Haverty's, but this should not be confused with discrimination. The sometimes unfortunate and mean employment practices permitted at Haverty's were not grounded in gender discrimination or some other prohibited basis. There is no evidence in the record that any employee of Haverty's received favorable treatment, or unfavorable treatment, because of their gender. After Ms. Jester's employment at Haverty's came to an end, she made an unsuccessful attempt to go into business for herself. For about eight months subsequent to her departure from Haverty's she was absolutely unemployed. She received unemployment compensation in the amount of $257.00 per week for four months after her departure from Haverty's. Then she went to work for the Shoe Salon for $9.50 per-hour for three weeks. Ms. Jester did not indicate how many hours per-week she worked at the Shoe Salon. Thereafter she found employment with Massey Wholesale about three months before the hearing, and at the time of the hearing she was still employed there. Her wages at Massey Wholesale compare closely to what she was receiving when working for Haverty's. Massey Wholesale will soon pay for her health insurance. She paid $387.00 per month for health insurance pursuant to COBRA for a period of three months subsequent to leaving Haverty's then secured a policy for which she pays a premium of $250.00 per month.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Alma W. Jester. DONE AND ENTERED this 17th day of July, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. Douglas Hall, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32302-0190 John W. Wesley, Esquire Wesley, McGrail and Wesley 88 Northeast Eglin Parkway Fort Walton Beach, Florida 32548 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
