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 is whether Respondent discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a 56-year-old female. Petitioner has over 26 years of retail sales experience. Petitioner had both outside sales and store management experience, but most of her experience was as a retail floor salesperson. Petitioner worked as a salesperson at GM Appliance, a retail appliance business currently owned and operated by Respondent. She had worked for GM Appliance for over 21 years. Petitioner was a good and capable salesperson. She had never been formally reprimanded in her 21 years with GM Appliance. According to Respondent's owner and manager Todd Williams, there were no problems at all with Petitioner's performance. She was qualified as a salesperson. In 2004, Williams Corporation, a single shareholder entity owned by Mr. Williams, purchased GM Appliance from its previous owner, Curtis Murphy. Mr. Murphy was retiring after owning GM Appliance for many years. Mr. Williams had worked with Mr. Murphy as a wholesaler and was relocating to the Panama City area from Atlanta. At the time of the GM Appliance purchase, Mr. Williams was approximately 40 years old. As would be expected when taking over a business, Mr. Williams made some changes at GM Appliance. He created a new outside sales position. He created and hired a new sales manager. He opened two offices outside of Panama City. Mr. Williams made all the business decisions at GM Appliance. As he was the sole shareholder and owner, Mr. Williams had the sole authority to hire and fire employees. Under Mr. Williams, GM Appliance did not have any formal written employment policies. Respondent has no sexual harassment or anti-discrimination policies and no process on how to handle employment complaints related to age or sex. GM Appliance has no written employee evaluations or job descriptions. If someone had a complaint, he or she needed to "take it to the EEOC," according to Mr. Williams. As a result of Mr. Williams' hiring and firing decisions, the GM Appliance workforce became decidedly younger in Panama City, especially in the sales positions. Since purchasing GM Appliance through 2010, Mr. Williams hired Matt Davis (born 1970) as a sales manager; Ashley Williams (born 1976) in an outside sales position; Kris Westgate (born 1979) as inside sales and delivery; and Amy Farris (born 1982) as inside sales and administrative. In 2010, two sales persons also remained on the staff of GM Appliance from the former owner: Bobby Tew (aged 63) and Petitioner (aged 54). Both primarily worked inside sales. Mr. Williams' hiring decisions made the culture at GM Appliance more "youth" oriented. There was much more juvenile and sexual talk. Mr. Williams was overheard saying that Petitioner wore old women clothes. Some members of GM Appliance's younger workforce often called Petitioner "Mama" or "Old Mama" to her face and behind her back. As a result of the worldwide economic slowdown, the business environment deteriorated for GM Appliance in 2008. To save money, GM Appliance began to cut back on its operations and expenses. In late 2010, unable to stem the tide of losses, Mr. Williams decided he needed to cut additional staff from the sales department in Panama City. Of the six salespeople working in Panama City, he laid off the two oldest: Mr. Tew and Petitioner. The four younger sales persons kept their jobs, but one, Kris Westgate, was reassigned to the warehouse instead of laid off. Also, the two highest paid salespersons, Ashley Williams, Todd Williams' brother, and Matt Davis, remained employed with GM Appliance. Ashley Williams and Davis annually made $45,000 and $80,000, respectfully. Petitioner, at the final hearing, identified the three younger employees retained following her termination as evidence of discriminatory intent: Margaret Walden, Amy Farris, and Matt Davis. Matt Davis, aged 46, was the sales manager and Petitioner's immediate supervisor. Petitioner reported directly to Matt Davis. Amy Farris, aged 30, was originally hired as a secretary to the outside salesman. Although she would sometimes come on the sales floor, her job was to provide support for outside sales. During the course of her employment, her duties expanded to include purchasing agent and SPIFF (manufacturer's incentive program) administrator. Respondent employed outside salespersons and other salespersons (retail sales associates) such as Petitioner, who worked the showroom floor. Outside salespersons reported directly to Respondent's president, Mr. Williams. Margaret Walden, aged 45, was an outside salesperson in Respondent's office in Destin, Florida, and was responsible for developing and maintaining relationships outside the office with client contractors in Destin and South Walton County. A showroom was not maintained at the Destin office. All three identified co-workers held positions with different duties and responsibilities from the position held by Petitioner. Petitioner was not replaced, and no younger (or older) sales associate was retained in a similar position. In July 2011, Respondent hired 51-year-old Steve Williams as a sales associate. This hire was made after the Charge of Discrimination was filed by Petitioner. Steve Williams, a former Sears appliance salesman and manager, solicited a job with Respondent as Respondent had not advertised an available position. After being told repeatedly that Respondent was not hiring sales associates, he offered to accept compensation on a commissioned sales basis. Prior to terminating Petitioner, Respondent terminated six employees, ages 25 (outside sales), 27 (purchasing agent), 52 (warehouse/delivery), 41 (warehouse manager), 59 (accounting manager), and 45 (outside sales) from a period beginning on May 8, 2008, through July 31, 2009. Prior to discharge, Petitioner and the only other associate salesperson on the retail showroom floor, Mr. Tew, had their hours reduced to four days a week. In addition and during Petitioner's tenure, Respondent made changes in the corporation's 401-K plan, health insurance, paid leave, and overtime compensation all changes designed to save money. Mr. Tew was terminated on the same day as Petitioner, September 7, 2010. Janice Heinze (aged 66), Jeff Reeder (aged 54), and Angus Thomas (aged 70), all employees at the Panama City location and all older than Petitioner, were retained by the company. Respondent hired his father (a 1099 contractor), aged 68, to assume outside sales duties at the location in Foley, Alabama, and Cindy Powell, aged 54, was hired to answer the telephone there. Kelly Hill, aged 45, was hired to replace Ms. Walden upon her subsequent resignation and relocation. Petitioner and Mr. Tew were laid off with the intent to rehire. There were no performance or other identified issues with their employment. Mr. Williams stated that he wanted to bring them back to work. Petitioner had better objective sales qualifications than the younger salespeople that were retained. According to the latest records that GM Appliance had, Petitioner was the highest profit margin generating salesperson in Panama City. Mr. Tew had the second highest profit margin. Petitioner and Mr. Tew also had more sales experience and seniority than any of the younger retained workers. Petitioner earned approximately $40,000 in total over the past three years of her employment and has been unemployed since she was laid off in 2010.
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 Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 25th day of June, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Daniel Harmon, Esquire Daniel Harmon, P.A. 23 East 8th Street Panama City, Florida 32401 Robert Christopher Jackson, Esquire Harrison Sale McCloy 304 Magnolia Avenue Post Office Box 1579 Panama City, Florida 32402-1579 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner Edward Lindsey was continuously employed by Respondent White Auto Parts between 1952 and 1989 (37 years). He was 64 years old at the time of his separation from White Auto Parts. White Auto Parts is a family-owned corporation for wholesale and retail auto parts sales. At all times material, it had eight stores and a warehouse operation in and around Gainesville, Florida. Retail sales are made over the respective store counters, and outside salesmen and inside salesmen handle wholesale sales. Inside salesmen stay at a desk in a specific assigned store and conduct most of their sales by telephone. William Thomas Hawkins, M.D., is Chairman of the Board and President of White Auto Parts. Dr. Hawkins is involved in the policy decisions affecting the management of the corporation, but is not generally involved in day-to-day business operations, including personnel matters. However, during substantially the whole of his leadership, Dr. Hawkins has urged day-to-day management personnel to hire college educated persons and/or enthusiastic and aggressive people. Usually, in connection with these urgings, Dr. Hawkins has referred to these recruits as "young," "college-educated," "new blood," or the equivalent. Despite occasional comments on individual employees being "old" or "slow," there is no evidence of a concerted effort by Dr. Hawkins to terminate or force early retirement on all employees 55, 60, or 65, or any other age for any reason, including replacement by younger, aggressive personnel. Petitioner Lindsey was initially employed in the shipping department, then worked at the counter. For the last 25 years he was employed as an outside sales person, a position he truly enjoyed. Petitioner's duties as an outside sales person included calls on independent accounts (garages, car dealers, and persons in the automotive business) to make presentations of stock, as well as to handle refunds and credits on defective returns and cores. He was also expected to develop new accounts. Outside salesmanship involved local travel by company car, getting in and out of the car many times a day, lifting heavy parts, and significant paperwork. By all accounts, it was significantly strenuous, physically. In the early years of his employment as an outside sales person, Petitioner was compensated on a commission basis, but that was gradually changed after Joe Nave became general manager of the company. At all times material, Joe Nave was general manager of White Auto Parts, with responsibility for managing day-to-day operations and for hiring and firing personnel. Seven years before Petitioner's separation, Mr. Nave intended to replace Petitioner with a younger, more aggressive person because of Dr. Hawkins' directions to seek such people out and because he was dissatisfied with Petitioner's sales performance. However, Petitioner improved his performance on the road and complied with Mr. Nave's sales policy, and thereafter Mr. Nave had no further cause to speak on the subject to Petitioner again. The situation at that time had been either based on personality problems between the two men or upon Petitioner's work performance, but not upon Petitioner's age per se, and the problem was cleared up at that time. Approximately one year before his separation, Petitioner was called in and by agreement was put on a straight salary of $370.00 per week. Later, Mr. Nave sought to reduce that amount, but Petitioner refused to accept the reduction. Nothing more was said thereafter about this request of Mr. Nave, and there is no evidence in the record to explain why the request was ever made. On the whole, Petitioner and Joe Nave had a less than cordial business relationship over the whole of their association. Mr. Nave was, by all accounts, a "hyper" or choleric personality with an aggressive, if not downright belligerent, managerial style. Very simply, Mr. Nave wanted to know where all his employees were all the time, and he yelled and "cussed" a lot over every little thing. Petitioner found his superior's use of swear words particularly unappealing and inferred that the cussing was directed at him, even if Mr. Nave actually intended it toward other persons or inanimate objects. On September 6, 1989, Petitioner had surgery for prostate cancer. He was hospitalized for approximately ten days. Petitioner received a call from Mr. Nave after he got out of the hospital. At that time, Mr. Nave told Petitioner that his vacation and sick leave had been used up and his paychecks would stop, according to company policy. Petitioner knew that company policy was exactly what Mr. Nave had represented, but he anticipated trouble which was never threatened. Petitioner thought: So then I got to thinking, once before Mr. Nave had asked me, when I was sick prior years back from that, now, this was a different time . . . and he wanted to know if the doctor released me, and I said, "No sir. He will not release me for another week." And he went out of the office saying, well, he's going to get him another guy to replace me then, which it didn't take place, of course. So then I got to thinking about this thing. He called me, reminding me about my vacation time, and I guess at that time I was thinking, well, maybe he's going to pull one and replace me, so -- (TR-16) Petitioner returned to work on Monday in the second week of October 1989. At the time, he was still wearing a catheter and two drain tubes in each side. Despite Petitioner's suspicions and despite Mr. Nave's phone call, the Respondent employer kept Petitioner on at full salary until he came back to work. After being at work one week, Petitioner felt he had "over done it." On the following Monday, he told Joe Nave that he was going to try to work a few more days, but then might need some more time to recuperate. The following Thursday, Petitioner attempted to speak with Mr. Nave regarding feeling too ill to continue any further that day, but was unable to do so because when Petitioner finished his paperwork, Mr. Nave had already left. Petitioner left the keys to the company car on Mr. Nave's desk and told Arnold Reed, the purchasing agent, that he was going to have to go home. Mr. Reed noticed that Petitioner was not looking well and offered to take him home, but Petitioner called his wife, who came and got him. On Friday, Petitioner did not report for work or call in to Respondent. That day, he traveled to South Carolina with his son-in-law. Petitioner did not return to work the next Monday. That day, Arnold Reed told Joe Nave that Petitioner had had to go home Thursday. After Mr. Nave expressed his shock that Petitioner had not talked to him personally, Mr. Reed explained to Mr. Nave that it was obvious that Petitioner had been ill. Respondent presented no proof that it had a published personnel policy requiring Petitioner to remain on the premises, despite the circumstances, until he could be excused by Mr. Nave personally. That same Monday, Joe Nave called Petitioner's home and left word for Petitioner to return his call. Several days later, Petitioner's wife, Jean Lindsey, contacted Joe Nave to explain Petitioner's reasons for his absence. The tone and content of their conversation are disputed. Among other matters, Mrs. Lindsey testified that Mr. Nave informed her that Petitioner no longer had a job at White Auto Parts and was verbally abusive about Petitioner's absence and trip to South Carolina. Mr. Nave testified that he did not terminate Petitioner but only reiterated that Mrs. Lindsey should have Petitioner see Mr. Nave as soon as he returned home. Despite the foregoing contradictions, the two witnesses concur that Mr. Nave did, in fact, also tell Mrs. Lindsey that he had already given the company car and the accounts assigned to Petitioner to someone else. It was from this comment, made in the "heat of battle" as it were, that Mrs. Lindsey reasonably inferred that Mr. Nave had hired a replacement for, or had transferred another employee into, Petitioner's outside salesman position. 1/ However, somewhat contradictorily, Mrs. Lindsey also testified that although Mr. Nave had stated that Petitioner could come in and work on a part-time basis, she still concluded that Petitioner had been fired outright. Visibly upset, she exited the store where she had spoken on the telephone with Mr. Nave and told Howard Newsome, a long time employee, that Mr. Nave had fired Petitioner. As a result of her contact with Mr. Nave, Mrs. Lindsey called Dr. Hawkins, president of the corporation, to discuss Petitioner's job. She advised Dr. Hawkins during their telephone conversation that Petitioner was very ill, that he had not done well post-surgery, that he needed time off, that he had left the previous week to go to South Carolina to rest and recuperate, that previously he had come back to work with a catheter and two drains in him, and that he just was not up to coming back to work. She also told him Petitioner had been discharged for not coming to work. At that point, Dr. Hawkins directed Mrs. Lindsey to have Petitioner contact him upon his return so that a meeting could be set up to hear both sides and work out the situation. Upon returning from South Carolina on Saturday, Petitioner was informed by his wife that he had been fired from his job at White Auto Parts by Joe Nave, but she also told him about Dr. Hawkins' message. Petitioner phoned Dr. Hawkins as requested who offered to "iron things out." Dr. Hawkins set up a meeting among himself, Joe Nave, Petitioner Lindsey, and Mrs. Lindsey. At the meeting, Dr. Hawkins assumed Petitioner was still wearing the drain and catheter Mrs. Lindsey had described to him. He did not inquire about them and so he did not know they had been removed sometime before the meeting, which took place on October 31, 1989. The only persons present for the entire meeting were Petitioner, his wife, and Dr. Hawkins. Also present at the beginning of the meeting was Joe Nave, and at the very end of the meeting, Sherry Deist. At the beginning of the meeting, Dr. Hawkins had Petitioner's sales reports in front of him because he and Joe Nave had just gone over Petitioner's entire record and agreed on what they could offer Petitioner to resolve the situation. Dr. Hawkins perceived the situation to be that Petitioner was a long- time employee, not yet released from post-surgery medical care, who had come back to full-time employment too soon to be able to do the strenuous work of full-time outside salesman and who was afraid of losing his job because he had not and could not report in to do it. Petitioner and Mrs. Lindsey perceived the problem as Petitioner already having been unjustly terminated from his outside salesman job and that reinstatement to that position was the only result that would satisfy them. Because the sales reports were in front of Dr. Hawkins at the beginning of their meeting, Petitioner became defensive, since, by his perception, for years he had never been told that his work was unsatisfactory or inadequate nor had he received any documentation to that effect. 2/ Despite obvious biases, Petitioner's description of this part of the meeting is the most credible of the several conflicting versions, and it is found that Dr. Hawkins did make comments about sales being down, about Petitioner slowing down, about Petitioner being unable to continue in outside sales work, and about Petitioner being "burned out" physically. Nonetheless, Dr. Hawkins offered Petitioner the opportunity to return to work at the less strenuous position of inside salesman. 3/ There is conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that Petitioner had never been terminated, but it is most probable from the circumstances that this was never specifically stated. There is also conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that he would pay Petitioner half pay until he could return to work, would pay Petitioner part-time wages for part-time work as an inside salesman until he could work full-time, and would pay Petitioner full-time pay as an inside salesman indefinitely. The evidence is also unclear as to whether or not the inside salesman Petitioner would replace was making $370.00 per week or slightly less. Consequently, it is possible and even reasonable that Petitioner could have inferred from Dr. Hawkins' offer that even as a full-time inside salesman, Petitioner would not make exactly the same pay rate as he had been making as a full-time outside salesman. However, it is clear and undisputed that even if Dr. Hawkins was noncommittal in response to Petitioner's pleas to keep his outside job, Dr. Hawkins did offer Petitioner a less strenuous but substantially comparable inside job, which Petitioner rejected. Petitioner concedes that neither Mr. Nave nor Dr. Hawkins ever stated that he had been or was being terminated. Petitioner's primary reason for rejecting the inside salesman's job was that the desk he would work from as an inside salesman was located in the same office with Joe Nave's desk. Petitioner, his wife, and Joe Nave all agree that Petitioner rejected the inside job regardless of any beliefs Petitioner held about what salary was involved and regardless of whether it was a part-time or full-time job, purely because the inside salesman job offer was not a return to his same outside sales job and because he refused to share an office with Joe Nave, the superior he believed had fired him. At that point, Petitioner's refusal of the inside sales job, Petitioner's wife's insistence that Joe Nave had already fired Petitioner, and Joe Nave's response became so loud, adamant, and vitriolic that Dr. Hawkins tried to calm the situation down by asking Joe Nave to leave the meeting and the room. After Joe Nave left, the meeting among Petitioner, his wife, and Dr. Hawkins continued in only a slightly calmer atmosphere. Petitioner never specifically told Dr. Hawkins he was able to return to his outside sales job that day. According to Petitioner's testimony at formal hearing, at the time of the meeting on October 31, 1989, he felt that he could have resumed his duties, but that he could not have daily serviced his usual number of accounts. At the meeting, Dr. Hawkins remained under the mistaken impression that Petitioner was still wearing the drains and catheter. Therefore, Dr. Hawkins still would not make any statement binding the Respondent corporation to return Petitioner to his outside salesman job. Dr. Hawkins asked Petitioner whether he had been released by his treating physician. Petitioner told Dr. Hawkins that he still needed to see his doctor on November 10. 4/ Dr. Hawkins told Petitioner they would meet after November 10 to "iron out" the situation. Dr. Hawkins called in the corporate comptroller, Sherry Deist, and instructed her to pay Petitioner half pay until November 10. There is no evidence that Respondent had any policy or employee plan that would have provided Petitioner with any pay at all after his vacation and sick leave was used up. Even though Petitioner's vacation and sick leave had run out, Respondent had actually paid Petitioner full pay until he returned to work. 5/ Respondent also paid Petitioner full pay while he tried to work for approximately 10 days before he was "done in" and went home to recuperate. Respondent continued to pay Petitioner full pay while he was in South Carolina and for the few interim days up until the October 31 meeting. From October 31 until November 10, 1989, Respondent paid Petitioner half salary. Dr. Hawkins anticipated hearing from Petitioner on or about November 10, 1989 as to whether or not he had been released by his doctor. Dr. Hawkins had planned to set up a new meeting to work out Petitioner's job status at that time, but Petitioner never called Dr. Hawkins to set up such a meeting. At Dr. Hawkins' request, Sherry Deist called Petitioner on or about November 10, 1989 to ask if he had called Dr. Hawkins. Petitioner told her that he had not called Dr. Hawkins and that it was Dr. Hawkins' duty to set up a new meeting. Ms. Deist offered Petitioner Dr. Hawkins' phone number, but Petitioner said he had it. Sherry Deist relayed this information to Dr. Hawkins. It is Respondent's policy that unless an employee personally asks to have a check mailed, he must pick it up personally. At Ms. Deist's request, Petitioner came in to see her to pick up his check covering the November 10 date. Dr. Hawkins could have initiated a phone call or set up another job status meeting at that point, but he deliberately did not. Based upon gossip that Petitioner had never been released by his doctor, was seeking employment elsewhere, and/or was hiring a lawyer to fight his termination, none of which conflicting hearsay statements were ever established to be true, Dr. Hawkins did not initiate any further direct contact between himself and Petitioner and told Sherry Deist to keep good notes whenever she talked to him. Up to this point, Respondent had treated Petitioner in every way as if he were still employed. Dr. Hawkins' open-ended offer of another meeting to "iron out" the situation made it unreasonable of Petitioner to continue to insist that he had been terminated by Joe Nave and refuse to contact Dr. Hawkins. Also, it was reasonable, on the basis of his past experience in the Respondent's employ, for Petitioner to know, regardless of the confusion, that the burden was on him to make clear to his employer, probably through a written medical release, that he was medically able to resume his duties. 6/ Sherry Deist then phoned Petitioner, pursuant to COBRA, to inquire whether Petitioner wished to continue his group medical insurance. When he replied affirmatively, she told Petitioner he could mail Respondent a check. No evidence was presented to show that COBRA requires offering this insurance option only if Petitioner were terminated or if the employer would also have had to offer it upon Petitioner's retirement. Later, Ms. Deist called Petitioner and asked him to fill out his retirement papers. Although Petitioner told Ms. Deist that he had not retired, but had been terminated, he also requested her to fill out the retirement papers for him. He signed them in January 1990. Prior to his surgery, Petitioner was 64 years old, and the other outside salesman, Ed Girton, was 58. Mr. Girton left Respondent's employ for another job in August 1989, a month before Petitioner's surgery. Shortly prior to the time Petitioner had surgery, Respondent offered an outside sales job to Mike Monaghman, age 35. Mr. Monaghman did not accept the offer. There is no clear evidence which outside sales position was being offered to Mr. Monaghman, but it is most probable that it was the one previously held by Mr. Girton. Eventually, Rick Thames, age 36-37 took that position. Rick Thames was not hired from outside but previously had been a counter man for Respondent. He lasted only eight months on the outside and requested to return to counter work. Petitioner's position was not covered by anyone for the first two weeks he was out sick. From approximately the time of Joe Nave's acrimonious phone conversation with Mrs. Lindsey, wherein he told her he had given Petitioner's accounts and car to someone else, until May 1990, Petitioner's accounts were covered by Burt Oliver, 66 years old, who already worked for Respondent in parts management only three days a week to supplement his Social Security retirement income. When Mr. Oliver could no longer cover the accounts in three days, he returned to inside employment in parts work and his outside accounts were given to a younger man, Mark Roberts, who was 32 years old. Mark Roberts was hired from outside, but the record is unclear as to precisely when. Since 1989, both outside sales positions have been filled by a succession of people at various times and the territories were reorganized at approximately the time Burt Oliver returned to inside employment. Eventually, the persons placed in outside sales were Mark Roberts, 32, Phil Snyder, a man in his 50's, and Wayne Butler, age 40. Respondent's car formerly used by Petitioner in outside sales was used by Burt Oliver and by just about every other White Auto Parts employee on a haphazard basis until it was sent for repair. The Respondent currently employs at least 20 people over the age of The Respondent currently employs, and consistently has employed, many employees over the age of 60, but most of these work/worked only part-time to supplement their Social Security retirement income. There are currently two full-time employees over sixty. One is approximately 70 years old and was hired after Joe Nave left the Respondent for other employment. Petitioner has remained under a physician's care on a three-months- return-visit basis.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition and denying the prayed-for relief. RECOMMENDED this 25th day of November, 1991 in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1991. 1/ See
The Issue Whether the Respondent engaged in a discriminatory employment practice contrary to Chapter 760, Florida Statutes, by paying the Petitioner less that other similarly situated employees and by discharging the Petitioner based upon the Petitioner's race, national origin age and disability?
Findings Of Fact The Petitioner is a black male of Haitian extraction. His date of birth as given in his personnel records (Exhibit 7) is June 16, 1977. The Respondent is an employer within the statutory definition that engages in the rental of trailers, trucks, and moving supplies and sales and installation of equipment used in towing trailers. The Petitioner did not present any evidence regarding disability or age. The Petitioner was initially employed by the Respondent in 2002 as a customer service representative making $6.50/hour. Several month later, he received a raise to $7.00/hour, and before the end of the year, he received another raise to $7.50/hour. In the first half of 2003, the Petitioner was moved to the position of Assistant Moving Center Manager and his salary increased to $8.50/hour. In the fall, he received a raise to $9.25/hour and was given another raise to $11.50/hour before year's end. Testimony was received from Arthur Williams, who was the store manager and familiar with the operations of the company, although at the time of Petitioner's termination, he was new to the position and "in training." The pay for personnel employed by the Respondent is established nationwide and is based upon cost of living factors for an area. The wages paid to the Petitioner were slightly above the average for an area like Tallahassee, and reflected the Petitioner's hard work. His pay was in line with others doing similar work. The Petitioner alleged Clint Barrineau was paid more than he was paid. The evidence indicted that Barrineau had held in his career with the company, every position in its stores, including area manager. Barrineau had left the company for personal reasons, and upon his return in July 2003, was hired at $9.00/hour. Subsequently, he was promoted to the position of Hitch Professional at $11.50/hour. Notwithstanding Barrineau's prior experience, generally, it take less time for a person to be promoted as a hitch professional than as an assistant moving center manager reflecting hitch-related sales as an income center in the business. Both Barrineau and the Petitioner were making the same salary when the Petitioner was terminated. The Petitioner testified that he was denied promotion to store manager on two occasions. The Petitioner did not establish his qualifications for this position; however, evidence was received that the first person employed in that position was Henry Barnes a white male, and the second was Arthur Williams, a black male. Williams was brought in from outside the company; however, he had significant experience in retail sales management. The Petitioner's primary claim related to his discharge. The evidence presented indicated that on May 4, 2004, the Petitioner closed the store as the general manager on duty. As the manager on duty, it was his job to prepare the daily receipts for deposit in the bank, and retain a fixed amount for business operations on the next day. The Petitioner did this, and the bank deposit was made. On the following day, Arthur Williams, the store manager, arrived with Chuck Newell, the Field Relief Manager, who was helping to train Williams. The two men opened the store, which was duly locked, and Williams disarmed the alarm system. Williams opened the store safe, and counted the money. There was supposed to be $1000 kept in the safe for store operations. The count revealed only $800. Williams and Newell recounted and then search the safe and cash registers to ensure it had not been left in one of these places; however, the money was not present. Having assured themselves by checking and rechecking that the money was not present, they proceeded to open the store for business with the money on hand, and then check with the bank. They physically drove to the bank and checked the nightly deposit, which was correct, the deposit receipt having tallied with the money deposited. Williams and Newell returned to the store and called the alarm system center. This center is operated by U-Haul, and each authorized employee has his or her own code for disarming the alarm upon entering the store. If the code is not entered, or if the premise is broken into, the alarm goes off. The alarm center reported that there were no entries into the building after it was locked the previous night until Williams opened it o that morning. There was no evidence of the building being burgled. When the Petitioner reported to work on May 5, 2004, Williams confronted him about the missing money. The Petitioner did not have an explanation. As the manager closing the store, the Petitioner was solely and personally responsible for the deposit and for securing the money left on the premises. Although personnel were permitted to make up cash drawer shortages, the money in question was "store" money, and the amount involved was more significant that typical cash drawer shortages. Having determined that there was in fact a cash shortage and that the Petitioner was the person responsible for the accountability and security of the funds, Williams made the determination to discharge the Petitioner. Williams, although in training, was the sole individual responsible for the decision to discharge the Petitioner. As mentioned above, Williams is a black male. Williams testified further regarding other persons whom he had discharged. Ms. B. Heaulskamp was discharged for refusal to work her assigned schedule. Mr. Zak White, a white male, was discharged for a shortage in his cash drawer. Heaulskamp was provided a letter of termination; however, this was Williams' first termination, and he was advised it was company policy not to provide termination paperwork. He did not provide the Petitioner or White with such paperwork. Williams hired the Petitioner's replacement, William Westry, who was a black male. Williams has hired two Haitians since the Petitioner's termination, both of whom were still employed at the store.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter its final order dismissing the Petitioner's claims. DONE AND ENTERED this 26th day of May, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2005. COPIES FURNISHED: Gueslin Vincent Post Office Box 20123 Tallahassee, Florida 32316 Jeremy P. Hertz, Esquire For & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801-3379 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent (also referred to herein as "ADT") is a provider of electronic security systems and services. It has both residential and non-residential (business and governmental) clients. Petitioner is a 30-year-old female. After graduating from high school, she attended Passaic College in New Jersey, accruing approximately nine fewer credits than she needed to obtain an associate's (two-year) degree in business management. Petitioner is currently ADT's Broward County Residential/Small Business Resale Manager. She started working for ADT in 1999 as a Residential Sales Representative. In 2001, she moved to a Core Commercial Sales Representative position. In May 2005, she voluntarily left the company "[t]o pursue another opportunity," but returned in April 2008 as a Core Commercial Sales Representative, working out of ADT's Miami office (as she had from October 2004 until her departure in May 20052). She remained a Miami Core Commercial Sales Representative until being promoted to her present position (her first "direct report" managerial position3) on or about September 26, 2009.4 Petitioner has been the recipient of numerous "awards and other types of recognition" from ADT during her employment with the company. Before becoming the Broward County Residential/Small Business Resale Manager, Petitioner had submitted an online application, on June 11, 2009, for another managerial position with ADT, that of Miami Core Commercial Sales Manager (MCCSM Position).5 She was neither interviewed, nor selected for the MCCSM Position. The recruiting for the MCCSM Position was handled, not by ADT's local Human Resources office, but by a female independent contractor, Natasha Carosielli. Ms. Carosielli posted the position opening on ADT's internal and external websites. The posting contained the following information about the position: Commercial Sales Manager Job description: The ADT Commercial Sales Manager is the leader of the commercial sales team in one of ADT's field offices. This role is responsible for building a team of highly productive sales representatives that can meet and exceed revenue expectations, as well as the needs of our existing and potential customers. The Commercial Sales Manager[s] [are] responsible to drive ADT's Corporate Sales and Marketing initiatives through the territories for which they are responsible. These include business and customer development, territory management, data mining, professional presentation and product sales. Additionally, this individual is responsible for job and channel profitability, revenue per user ("RPU") growth of our customers, and retention of both customers and sales representatives. This position requires a strong, principle centered leader. Duties and Responsibilities: Model and champion ADT values. Create a safe environment for the discussion and resolution of values-related issues and concerns. Plan, coordinate and implement Commercial sales operations. This would include business and customer development and territory management. Attain budgeted revenue expectations. Assure the profitability of the channel is met. Build and retain an effective team of sales representatives. Lead, coach and motivate team to achieve pre-established goals. Set sales territory expectations for each of ADT's sales representatives including customer touch expectations, as well as quota achievement. Direct territory activities of sales staff. Measure the activities of each sales representative to assure that their marketing activities will produce intended sales production. Implement and execute the company's marketing strategy and business plans. Work in concert with other department and business segment leaders to assure congruence with sales operations, representing the voice of the department, the customer and the interests of the sales team. Work with National Account Managers to secure National Account business. Requirements: Education: College Degree in Business, Marketing or other related field. Experience: Minimum of 5 years sales experience, including 3 years of field sales management experience in a business to business environment, or successful management of another sales channel. Skills: Excellent oral and written communication skills Proven ability to effectively interact with internal organization and customer organizations both at the senior executive and field level Functional/Technical Skills in leading a sales organization Action Oriented Business Acumen Drive for Results Managing & Measuring Work Customer Focus Building Effective Teams Motivating Others Organizational Agility Interpersonal Savvy Conflict Management Learning/Change Agility Managing Vision & Purpose Managerial Courage Managing Diversity Developing Direct Reports & Others Other: Ability to travel nights and weekends to accommodate the customer's agenda. This language is boilerplate that ADT uses, nationwide, whenever it advertises an opening for a Core Commercial Sales Manager position.6 Ms. Carosielli reviewed the applications/resumes submitted in response to the posting, screened applicants (by speaking to them over the telephone), and then forwarded to the hiring manager (that is, the ADT employee responsible for making the hiring decision) the resumes of those applicants, and only those applicants, she deemed to be qualified for the position. "All of the applications[/resumes] [went] through [Ms. Carosielli]," and Ms. Carosielli alone. Those she did not forward were not seen by the hiring manager. April 30, 2009, was the date "when the original posting went up" advertising the MCCSM Position opening. At that time, Jerry Weaver was the hiring manager. Mr. Weaver was then, and still is, ADT's Southeast Region Group Director for Commercial Sales. Among Mr. Weaver's "direct reports" is ADT's Southeast Area Commercial Sales Manager, to whom, in turn, the MCCSM reports.7 As of April 30, 2009, the Southeast Area Commercial Sales Manager position was vacant, and no one had yet been selected by Mr. Weaver to fill the position. Mr. Weaver subsequently offered the Southeast Area Commercial Sales Manager position to an internal candidate, Kurtis Sonnenberg, who was then ADT's Director of Custom Home Services. Mr. Sonnenberg assumed the job responsibilities of the Southeast Area Commercial Sales Manager on June 1, 2009 (although it was not until a month later, on July 1, 2009, that he "officially" became the Southeast Area Commercial Sales Manager8). Among these responsibilities was serving as the hiring manager for the open MCCSM Position. Mr. Weaver directed Mr. Sonnenberg to make the filling of this open position (which had already been advertised for two months) Mr. Sonnenberg's "first and foremost . . . priority." Upon assuming his new responsibilities, Mr. Sonnenberg spoke with Ms. Carosielli and told her that he was hoping to fill the MCCSM Position with an individual who, among other things, was bilingual (English/Spanish speaking) and had experience in the electronic security systems and services industry managing a large team of sales representatives (who were "direct reports"), preferably in a "turnaround" situation.9 He also expressed his desire to obtain from Ms. Carosielli a "diverse group of candidates." On or about June 4, 2009, Mr. Sonnenberg was approached by Andres Vidales, who was then ADT's Sales Manager for Custom Home Services in South Florida (a managerial position with 15 to 17 "direct reports"). Mr. Vidales, who is bilingual and had previously "worked for" Mr. Sonnenberg "in a couple of different management capacities, all of which were in a turnaround situation," informed Mr. Sonnenberg that he was interested in the MCCSM Position. Mr. Sonnenberg responded by telling Mr. Vidales that he "needed to go through the proper channels" and "apply online." Mr. Vidales, sometime later that day (June 4, 2009), "appl[ied] online" for the MCCSM Position, as Mr. Sonnenberg had suggested he do. After reviewing Mr. Vidales' application/resume and then speaking to him over the telephone, Ms. Carosielli determined that Mr. Vidales was qualified for the MCCSM Position.10 She therefore forwarded Mr. Vidales' resume to Mr. Sonnenberg. That same day (June 4, 2009), Mr. Sonnenberg interviewed Mr. Vidales (by telephone) for the MCCSM Position. During the interview, Mr. Vidales mentioned to Mr. Sonnenberg that he was pursuing other employment opportunities, in addition to the MCCSM Position. Mr. Vidales was, in Mr. Sonnenberg's opinion, "an extremely qualified candidate" who possessed the attributes he was looking for. Mr. Sonnenberg "wanted . . . another opinion," however, to either "validate his belief" that Mr. Vidales was the right person for the MCCSM Position or to "point out something that [Mr. Sonnenberg] may have missed." He thus asked Mr. Weaver to interview Mr. Vidales, which Mr. Weaver did (by telephone) on June 5, 2009. Mr. Weaver agreed with Mr. Sonnenberg's assessment of Mr. Vidales' suitability for the MCCSM Position, and he so informed Mr. Sonnenberg. The afternoon of June 5, 2009, Mr. Sonnenberg verbally offered Mr. Vidales the MCCSM Position, and Mr. Vidales accepted the offer. Later that afternoon (June 5, 2009), Mr. Sonnenberg informed Ms. Carosielli of this development. From that point forward (on June 5, 2009), Ms. Carosielli took no further action to recruit for the MCCSM Position: she reviewed no more applications/resumes, interviewed no more applicants, and forwarded no more resumes to Mr. Sonnenberg, the hiring manager. It is Ms. Carosielli's standard practice to "leave [a job opening posting] up until someone [actually] assumes the [advertised] position." She does this in order to "have a pool of applicants" available if "anything falls through." Consistent with this practice, she did not, after learning of Mr. Vidales' acceptance of the MCCSM Position, immediately remove the online postings for the position. Instead, she waited until Mr. Vidales was actually in the position11 to take them down. After June 5, 2009 (the date Ms. Carosielli was informed of Mr. Vidales' acceptance of the MCCSM Position and she stopped her recruiting efforts), ADT received an additional 46 applications for the position, including Petitioner's. Of these 46 applications, 41 were submitted by men and five by women. All 46 applicants, regardless of their gender, were treated the same: their applications were not reviewed, and they were nether interviewed nor otherwise considered for the MCCSM Position. Petitioner was treated no differently than the 41 men who, like her, applied after June 5, 2009. Her gender had nothing to do with her not getting the position. Her application was not considered simply because of when it was submitted. Petitioner believed, when she applied for the MCCSM Position on June 11, 2009, that her application would be given consideration. Inasmuch as the online postings for the position were still up and she had been told that the position was open by "several people" connected with the company who had encouraged her to apply,12 Petitioner had no reason to believe otherwise. Moreover, the automatic e-mail reply that she received at 2:32 p.m. on June 11, 2009, confirming ADT's receipt of her application, which read as follows, stated that her application was being "review[ed]": Thank you for your interest in working at ADT Security Services, Inc. We have received your application for the position [of] Commercial Sales Manager and are currently reviewing your experience and qualifications. Please be advised that, due to the volume[] of applications received, we are only able to move forward with those candidates, whose skills and experience most closely reflect our requirements. We encourage you to access and update your online profile, on a regular basis, so that we may notify you when jobs matching your skills and interests become available. To apply to new opportunities, visit us at www.careersatadt.com. We thank you for your interest in ADT Security Services, Inc. and wish you the best of luck in your future endeavors. Best regards, ADT Security Services Recruitment. In actuality, neither her application, nor any other application for the MCCSM Position, was then being "review[ed]," but Petitioner did not know this. In mid-to-late July of 2009, Mr. Vidales received a written "offer letter," with a specific "start date," concerning the MCCSM Position.13 After learning that Mr. Vidales had been "awarded" the position, Petitioner sent the following e-mail, dated July 24, 2009, to the local ADT Human Resources Manager, Ms. Maia: I hope all is well by you. It was confirmed that Andres Vidales is now the Miami Commercial Sales Manager. I was wondering why I did not receive an interview? I feel ADT did not handle the process correctly and I was overlooked. I have always been a top performer during all my years here at the company and last year I was at 109% and that was just for half of the year since I started in April (218% if I was there the whole year). Not to mention I have over 8 years with the company (6 in Commercial Sales always above 100%). I feel my qualifications fit the criteria for the Commercial Sales Manager position and I should have at least received an interview. I on the other hand was not notified about anything, not in person or by email etc. I remember you approaching me two times to ask if Kurt [Mr. Sonnenberg] had contacted me to schedule an interview and I said that he did not. Also, you mentioned to me that he had my resume[14] and you would also forward another copy because you would be speaking to him so he could set up an interview. After the first time you contacted me about 2-3 weeks went by and you had asked me again if Kurt contacted me and I said no and you had said that you did not know why he hadn't reached out to me yet and you would again speak to him. Quite, honestly, I feel like I was overlooked because I am a female. Have a great day and I look forward to hearing from you. Ms. Maia contacted Ms. Carosielli and told her about Petitioner's July 24, 2009, e-mail. The two of them then spoke with Petitioner on a conference call, during which Ms. Carosielli apologized to Petitioner for "overlooking" her resume and suggested that Petitioner apply for another ADT Core Commercial Sales Manager position that was then open in Kentucky.15 At the time she made this apology, Ms. Carosielli had "not researched when Petitioner [had] applied" for the MCCSM Position, and she was operating under the erroneous assumption that Petitioner's application had been submitted "prior to [Mr. Vidales'] being offered the position." Ms. Maia also contacted Mr. Sonnenberg after receiving Petitioner's e-mail. She made Mr. Sonnenberg aware that Petitioner "was upset that her application had not been considered" for the MCCSM Position. When told this, Mr. Sonnenberg advised Ms. Maia that he had been "unaware that [Petitioner] had an interest in the position" inasmuch as her resume had never been forwarded to him.16 Ms. Maia then asked Mr. Sonnenberg to meet with Petitioner "to review her qualifications," which Mr. Sonnenberg agreed to do. The meeting between Mr. Sonnenberg and Petitioner took place a day or two later. At the meeting, Petitioner showed Mr. Sonnenberg her resume. This was first time that he had seen it. Mr. Sonnenberg went through Petitioner's resume with her and made suggestions as to what Petitioner could do to "position herself for the future to be able to obtain a position [in] management at ADT." He mentioned, in his discussion with Petitioner, that he did not "typically like to hire someone [for a managerial position where that person was] going to [be] manag[ing] [his or her] former peers."17 At the time of the meeting, Mr. Sonnenberg "did not know the date that [Petitioner had] applied" for the MCCSM Position. By letter dated September 14, 2009, Petitioner, through her attorney, advised ADT that she "intended to file a claim for employment discrimination with the Equal Employment Opportunity Commission and the Florida Commission on Human Relation about compensation to her for [Respondent's] unlawful employment practices" in connection with her having been "passed over for the position of Core Commercial Sales Manager." The concluding paragraph of letter read as follows: Ms. Sole has been a dedicated ADT employee for many years, and continues to be one of ADT's top performers. She is qualified for the position she sought, and is significantly more qualified than the male employee who was given the job. For Ms. Sole to be passed over for an employment position simply because she is a woman is both unlawful and unconscionable, and these events have been deeply upsetting to her. Ms. Sole's multiple written claims to ADT Human Resources of employment discrimination have shockingly gone uninvestigated and unanswered. At this juncture, Ms. Sole has authorized this firm to negotiate a pre-suit resolution of her claims so that restitution may be made to her. I invite you or ADT's legal representative to contact me within ten (10) days of your receipt of this letter, absent which Ms. Sole will conclude that you have no interest in attempting any amicable resolution and will proceed with filing a charge of gender discrimination. Petitioner's attorney and Respondent's attorney subsequently exchanged correspondence, but there was no "amicable resolution." The instant litigation ensued.
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 ADT not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 27th day of October, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2010.
The Issue Did Respondent, Ricoh Americas Corporation, (Ricoh), discriminate against Petitioner, Tamara Gleason (Ms. Gleason), because of her gender by demoting her? Did Ricoh retaliate against Ms. Gleason for complaining about gender discrimination?
Findings Of Fact Ricoh is in the business of selling and servicing document imaging and output equipment, including copiers, fax machines, printers, and related supplies and services such as software, paper, and toner. Ricoh has locations across the United States. Ms. Gleason worked for Ricoh from August 2008 until she resigned on March 31, 2010. She worked in its East Florida Marketplace. That area covers the eastern part of Florida from Jacksonville to Miami. In 2008, and at all times relevant to this proceeding, Al Hines (Mr. Hines) was the East Florida Marketplace manager. His responsibilities included supervising sales personnel and meeting sales quotas. Mr. Hines has worked for Ricoh in various positions for over 31 years. He is based in Ricoh's Maitland, Florida, office near Orlando. In 2008, the organizational structure of the East Florida Marketplace consisted of two group sales managers, one in Central Florida and one in South Florida. These group sales managers reported directly to the Marketplace Manager Mr. Hines. They oversaw sales managers who in turn supervised the various account executives. Also, one sales manager in Jacksonville reported directly to Mr. Hines. The group sales managers and sales managers were responsible for supervising the sales personnel, consisting of major account executives, senior account executives, and account executives. Ricoh assigned major account executives to work with specific large client accounts. Senior account executives were more experienced sales representatives. Senior account executives and account executives were assigned territories. Daytona Beach or a series of zip codes are examples of territories. Ricoh also assigned "vertical markets" for a specific industry, such as "faith-based" institutions to an Account Executive. Ms. Gleason applied and interviewed for an account executive position in the central Florida area of the East Florida Marketplace in August 2008. Mr. Hines, General Sales Manager Cecil Harrelson, and Sales Manager Anthony Arritt interviewed Ms. Gleason. On her resume and in her interview, Ms. Gleason represented that she had 20 years of experience as a sales representative in the office equipment field. Her resume stated that she was "[p]roficient in all areas relating to sales and leasing of copiers, printers, scanners, fax machines and various software solutions. Consistently exceeded sales quota." After the interview, Mr. Hines decided to hire Ms. Gleason for Mr. Harrelson's team. Ricoh hired Ms. Gleason as a senior account executive on August 11, 2008. Mr. Hines initially assigned her to work in the vertical "faith-based" market. In September 2008, a sales manager position for the Daytona Beach/Melbourne territories, overseen by Mr. Hines, opened. Three males applied for the position. Ms. Gleason did not apply. Mr. Hines asked Ms. Gleason if she would be interested in being considered for promotion to sales manager. Although Ms. Gleason had no prior management experience and had only worked for Ricoh for two months, Mr. Hines believed that she would be good in the position and asked her to consider it. Ms. Gleason accepted Mr. Hines' proposal. On September 30, 2008, Mr. Hines promoted her to sales manager. Ricoh provided Ms. Gleason manager training. In April and May of 2009, Ricoh restructured its sales positions. Ricoh changed group sales manager positions to strategic account sales manager positions. It removed all major account executives from teams supervised by sales managers and placed them on the teams supervised by the strategic account sales managers. In central Florida, the reorganization resulted in Cecil Harrelson being moved from general sales manager to strategic account sales manager. The major account executives on Ms. Gleason's team (Mary Cobb, David Norman, and Patrick Mull) and Arritt's team (Todd Anderson and Lynn Kent) were moved onto the new team supervised by Harrelson. All of the major account executives in the East Florida Market supervised by Mr. Hines were transferred to strategic account sales manager teams. On average, the sales managers in the East Florida Marketplace each lost two major account executives due to the reorganization. Mr. Hines required all of the sales managers to hire new sales personnel to bring the number of sales personnel on their teams to expected levels. This is known as maintaining "headcount." Ms. Gleason knew of this requirement. Also it was not new. The responsibility to maintain headcount pre-existed the reorganization. From the time of her hire until early 2009, around the time that the Company reorganized its sales positions, Ms. Gleason had no issues with Mr. Hines or complaints about his management. As a sales manager, Ms. Gleason bore responsibility for supervising a team of sales personnel and for ensuring that her team members met their monthly sales quotas. In addition, Ms. Gleason was responsible for maintaining the headcount on her team. Mr. Hines assigned monthly sales quotas for sales managers. He based the quotas on the types of sales representatives on each team. The monthly quota for major account executives was $75,000. For senior account executives, the monthly quota was $40,000. The monthly quota for account executives was $30,000. Mr. Hines conducted bi-monthly two-day sales meetings with all of the sales managers and office administrators to discuss their sales progress. Managers were expected to discuss their completed and forecast sales. Mr. Hines required managers to stand before the group to report on their progress and discuss any issues with quotas or goals based on month-to-date, quarter-to-date, and year-to-date expectations. Mr. Hines also considered "sales in the pipeline," or anticipated sales, to help determine sales trends for the next 90 days and in evaluating sales personnel. In addition, Mr. Hines conducted weekly sales calls with the sales managers to review their sales progress. During the calls, sales managers were to identify which sales they believed had a strong, "95 percent chance," of closing. Mr. Hines also discussed the performance of each individual sales representative on a manager's team during the calls. The discussions included examination of reasons for non-performance. Around the time of the reorganization, Mr. Hines transferred Senior Account Executive Tina Vargas in the Ocala territory from Mr. Arritt's team to Ms. Gleason's team. Mr. Hines made this transfer, in part, to help Ms. Gleason achieve her headcount and sales quotas. At the time of the transfer, Vargas expected to complete a large, one-time $320,000 sale on which she had been working. Mr. Hines anticipated that this sale would help Ms. Gleason achieve her sales quotas. Ms. Vargas was not located in the Daytona Beach/Melbourne territory. But Mr. Hines expected that Ms. Vargas would require minimal supervision because she was an experienced sales representative. Other managers also supervised sales representatives in multiple or large territories. For example, Cecil Harrelson supervised sales representatives in four areas. They were Orlando, Melbourne, Daytona, and Gainesville. Sales Manager Derrick Stephenson supervised a substantially larger geographic area than Ms. Gleason. His area reached from Key West to West Palm Beach. After the reorganization, Ms. Gleason's sales productivity declined. She also was not maintaining her headcount. The other Sales Managers experienced the same problems initially. But they recovered from the changes. Ms. Gleason never did. For the seven-month period of April through October, Ms. Gleason's record of attaining her quota was as follows: April - 35% or $70,867 in sales May - 196% or $385,452 in sales (Due to Ms. Vargas joining the team with a pending sale; 23% without Ms. Vargas.) June - 31% or $61,136 in sales July - 8% or $12,948 in sales August - 12% or $19,521 in sales September - 11% or $18,261 in sales October - 23% or $36,811 in sales During that same period, Ms. Gleason was the lowest performing sales manager in July (19 points less than the next lowest), August (14 points less than the next lowest), September (33 points less than the next lowest), and October (6 points less than the next lowest). She was the second lowest in June when Mr. Comancho was the lowest with 25% attainment compared to Ms. Gleason's 31%. The attainment percentages for all of the sales managers varied. Each had good months and bad months. After April and May, Ms. Gleason, however, had only bad months. For the months June through October, Ms. Gleason was the only sales manager who did not achieve 50% attainment at least twice, with two exceptions. They exceptions were Mr. Comancho and Mr. Rodham. Mr. Comancho chose to return to an account executive position after Mr. Hines spoke to him about his performance. Mr. Rodham joined Ricoh in October and attained 52% of quota that month. In addition to steadily failing to meet 50% of her quota, Ms. Gleason failed to maintain a full headcount for the same period of time. No male sales managers in Ricoh's East Florida Marketplace had similar deficiencies in meeting sales quota. There is no evidence that any male sales managers in Ricoh's East Florida Marketplace had similar failures to maintain headcount. There is no evidence of sales manager productivity or headcount maintenance for any of Ricoh's other markets. Ms. Gleason tried to improve her headcount by hiring additional sales personnel. She conducted a job fair with the assistance of Ricoh's recruiter. They identified 19 applicants for further consideration and second interviews. Mr. Hines reviewed and rejected all 19. They did not meet his requirement for applicants to have outside sales experience and a history of working on a commission basis. Ms. Gleason was aware of Mr. Hines' requirements. But she interpreted them more loosely than he did. Mr. Hines helped Ms. Gleason's efforts to improve her headcount by transferring four sales representatives to her team. At Ms. Gleason's request, Mr. Hines also reconsidered his rejection of one candidate, Susan Lafue, and permitted Ms. Gleason to hire her. Still Ms. Gleason was unable to reach the expected headcount. David Herrick, one of the individuals who Mr. Hines assigned to Ms. Gleason's team, had already been counseled about poor performance. Mr. Hines directed Ms. Gleason to work with Mr. Herrick until he sold something. This was a common practice with newer sales representatives. Mr. Herrick had also been assigned to male sales managers. Mr. Hines asked Ms. Gleason and Mr. Herrick to bring him business cards from their sales visits. He often did this to verify sales efforts. After Mr. Hines reviewed the cards, he threw them in the trash. But he first confirmed that Ms. Gleason had the information she needed from the cards. Mr. Hines often threw cards away after reviewing them to prevent sales representatives providing the same card multiple times. Ricoh's Human Resources Policy establishes a series of steps for disciplinary action. The first is to provide an employee a verbal warning. The next two steps are written warnings before taking disciplinary action. Mr. Hines gave Ms. Gleason a verbal warning about her performance. He spoke to her about improving sales production and headcount. Ms. Gleason's performance did not improve despite her efforts. Later, Mr. Hines gave Ms. Gleason a written warning in a counseling document dated August 31, 2009. The document stated that her performance had not been acceptable. The counseling memorandum directed Ms. Gleason to reach 65% of her quota. It also said that she was expected to maintain a minimum of seven people on her team and work in the field with her sales representatives at least four days a week. Finally the memorandum advised that failure to perform as directed would result in "being moved to sales territory." Around the end of August 2009, Mr. Hines began counseling Israel Camacho, a male, about his performance. Mr. Comancho decided to return to an account executive position. In September Ms. Gleason achieved 11% of her quota. She also did not maintain her headcount. September 24, 2009, Mr. Hines gave Ms. Gleason a second written counseling memorandum. It too said that her performance was unacceptable. The memorandum required her to produce 80% of her quota and maintain a minimum of seven people on her team. It also cautioned that failure to meet the requirements would result in "being moved to sales territory." Ms. Gleason acknowledges that she understood that if she did not perform to the expected levels that she could be demoted. After the written warning of September 24, 2009, Ms. Gleason's performance continued to be unacceptable. For October, Ms. Gleason had $23,811 in sales for a total attainment of 23% of quota. Again, she did not maintain her team's headcount. Sometime during the June through October period, Mr. Hines criticized Ms. Gleason's management style, saying that she "coddled" her personnel too much. He also directed her to read the book "Who Moved My Cheese" and discuss it with him and consider changing her management style. Mr. Hines often recommended management books to all managers, male or female. There is no persuasive evidence that Ms. Gleason is the only person he required to read a recommended book and discuss it with him. Mr. Hines' comments and the reading requirement were efforts to help Ms. Gleason improve her performance and management. During the June through October period, Ms. Gleason yawned during a manager meeting. She maintains that Mr. Hines' statement about her yawn differed from the words he spoke to a male manager who fell asleep in a meeting. The differences, she argues, demonstrated gender discrimination. They did not. In each instance Mr. Hines sarcastically commented on the manager's behavior in front of other employees. He made no gender references. And the comments were similar. Sometime during the June through October period Mr. Hines also assigned Ms. Gleason to serve in an "Ambassador" role. "Ambassadors" were part of a Ricoh initiative to develop ways to improve the customer experience. There is no evidence that males were not also required to serve as "Ambassadors." And there is no persuasive evidence that this assignment was anything other than another effort to improve Ms. Gleason's management performance. Also during the June through October period Ms. Gleason proposed hosting a team building event at a bowling alley. Someone in management advised her that the event could not be an official company sponsored event because the bowling alley served alcohol. Again, there is no evidence that males were subjected to different requirements or that the requirement was related to Ms. Gleason's gender. During this same period, Ms. Gleason received written and oral communications from co-workers commenting on her difficulties meeting Mr. Hines' expectations. They observed that she was having a hard time and that they had seen Mr. Hines treat others similarly before discharging them. Nothing indicates that the others were female. These comments amount to typical office chatter and indicate nothing more than what the counseling documents said: Mr. Hines was unhappy with Ms. Gleason's performance and was going to take adverse action if it did not improve. On November 12, 2009, Ms. Gleason sent an email to Rhonda McIntyre, Regional Human Resources Manager. Ms. Gleason spoke to Ms. McIntyre that same day about her concerns about Hines' management style. Ms. Gleason said she was afraid that she may lose her job and that she was being set up for failure. Ms. McIntyre asked Ms. Gleason to send her concerns in writing. Ms. Gleason did so on November 13, 2009. Ms. Gleason's e-mail raised several issues about Mr. Hines' management. But Ms. Gleason did not state in her email or her conversations that she was being discriminated against or treated differently because of her gender. Ms. Gleason never complained about gender discrimination to any Ricoh representative at any time. On December 1, 2009, Mr. Hines demoted Ms. Gleason from sales manager to senior account executive. He assigned her to work on Mr. Arritt's team. Ms. Gleason had no issues with Mr. Arritt and no objection to being assigned to his team. Mr. Hines has demoted male sales managers to account executive positions for failure to attain quotas or otherwise perform at expected levels. The male employees include Ed Whipper, Kim Hughes, and Michael Kohler. In addition, Mr. Comancho was the subject of counseling before he chose to return to an account executive position. After Mr. Hines demoted Ms. Gleason, he promoted Diego Pugliese, a male, to sales manager. He assigned Mr. Pugliese the same territory that Ms. Gleason had. When Mr. Hines assigned Ms. Gleason to Mr. Arritt's team, Mr. Hines instructed Mr. Arritt to give Ms. Gleason two territories with substantial "machines in field" (MIF) to buttress Ms. Gleason's opportunity to succeed in her new position. Mr. Arritt assigned Ms. Gleason the two territories that records indicated had the most MIF. Ms. Gleason asserts that the preceding account executives maintained the records for the area poorly and that the new territories had no greater MIF than other areas. That fact does not indicate any intent to discriminate against Ms. Gleason on account of her gender. In January 2010, after Ms. Gleason's demotion, Mr. Harrelson invited Ms. Gleason to attend a non-company sponsored, employees' poker party. She had been invited to other employee poker parties and attended some. Mr. Harrelson withdrew the invitation saying that Mr. Hines was attending and that Mr. Harrelson thought Ms. Gleason's presence would be uncomfortable. Mr. Harrelson did not say that Mr. Hines had made this statement. And Mr. Harrelson was not Ms. Gleason's supervisor. Nothing about the exchange indicates that Ms. Gleason's gender had anything to do with withdrawal of the invitation. The incident seems to be based upon the natural observation that Mr. Hines might be uncomfortable socializing with someone he had recently demoted. After her demotion, Ms. Gleason asked Mr. Arritt to go with her on a "big hit" sales call. Ms. Gleason claims that Mr. Arritt told her that Mr. Hines told him not to go on sales calls with her. That may have been Mr. Arritt's interpretation of what Mr. Hines said. Mr. Hines had told Mr. Arritt that because Ms. Gleason was an experienced sales representative Mr. Arritt should focus his efforts on the less experienced sales representatives on his team. This was a reasonable observation. There is no evidence indicating that Mr. Hines treated Ms. Gleason differently in this situation than he had similarly experienced males. Ms. Gleason brought this issue to Ms. McIntyre's attention. The issue was resolved. Mr. Hines told Mr. Arritt that if Ms. Gleason wanted more assistance then Mr. Arritt should attend meetings with Gleason and provide any other assistance she believed she needed. Ms. Gleason had no other issues with Mr. Hines during the remainder of her employment. On March 31, 2010, Ms. Gleason submitted a memorandum stating that she was resigning "effective immediately." There is no evidence of derogatory or harassing comments by Mr. Hines or any other Ricoh representative toward Ms. Gleason referring to gender. There is no evidence of sexually suggestive comments or actions by a Ricoh representative. There also is no evidence of physically intimidating or harassing actions by any Ricoh representative.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition of Tamara A. Gleason in FCHR Case Number 2010-01263. DONE AND ENTERED this 18th day of February, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kimberly A. Gilmour, Esquire 4179 Davie Road, Suite 101 Davie, Florida 33314 David A. Young, Esquire Fisher & Phillips LLP 300 South Orange Avenue, Suite 1250 Orlando, Florida 32801 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner because of a handicap.
Findings Of Fact Sometime in July 2002, Petitioner was hired by Respondent as a Store Clerk (now known as a Sales Associate) at Store No. 3727 in Panama City, Florida. On March 1, 2003, Petitioner was promoted to Lead Sales Associate. Sometime around December 2005, Petitioner was diagnosed with absolute glaucoma and cataracts. As a result of her deteriorating eyesight, Petitioner asked the Store’s Manager, Michaelene Mellor, to be reassigned to her earlier Sales Associate position. Although there was some conflict in the evidence on whether Petitioner was reassigned as a “store stocker,” the better evidence demonstrated that Dollar General did not have a formal position known as a “store stocker.” Dollar General did have a position known as a “Sales Associate.” The Sales Associate position consisted of a variety of duties. Essential to the position were the following: assist in setting and maintaining planograms and programs; build merchandise displays; operate a cash register; itemize and total a customer’s purchase; collect payment from a customer and make change; operate a handheld scanner; and assist with ordering merchandise and maintaining inventory in the store. Planograms are shelving strips that contain shelf tags. They are the method that employees use to place merchandise in the store and on the shelves. They also help in inventory control. Petitioner was reassigned by Ms. Mellor. Her primary duties were to stock the store by using the planograms and shelf tags. Ms. Mellor advised the District Manager about the reassignment. However, she did not inform the District Manager that Petitioner would primarily be limited to stocking the store. Under Ms. Mellor’s tenure as Store Manager, Store 3727 was not properly managed. The store was dirty, had incorrect or out-of-date signage, incomplete or nonexistent planograms, merchandise on the floor and blocking the aisles, and a high incidence of inventory loss. Because of these problems, Ms. Mellor was terminated in October 2006. That same month, Thomas Rector became the Store Manager. His goal was to bring the store into compliance with Dollar General’s operation policies and to reduce the store’s inventory loss. At the time Mr. Rector took over Store 3727, the store had 4 positions and 7 employees allotted to it. The positions were Store Manager, Assistant Store Manager, Lead Sales Associate and Sales Associate. Each store was allotted a specific number of labor hours, excluding the hours worked by the manager, to cover the hours the store is open for business. Because Store 3727 had only 7 employees, only two or three employees worked during any given shift. With so few employees to cover each shift, it was essential that all employees be able to perform all the duties of the position that they filled. In this case, it was essential that Petitioner be able to read a scanner, run the cash register, make change, read a planogram, read a shelf tag, locate merchandise and stock merchandise. For the next several months, Mr. Rector observed that Petitioner could not clock herself in or out of work. More importantly, he observed that Petitioner had difficulties in stocking merchandise in the proper place. He observed that other employees had to sometimes help Petitioner with stocking. Improperly stocked items caused inventory control problems, increased the labor hours used by the store because time was required to correctly place store items and could result in lost revenue due to improper pricing. He also observed that she had trouble reading the scanner, the planograms and shelf tags. Based on his observations, Mr. Rector concluded that Petitioner could not fulfill the duties of a Sales Associate. He contacted the District Manager, Joe Peebles, and advised him that Petitioner could not perform the duties of a Sales Associate. On June 6, 2007, Mr. Peebles met with Petitioner. He read her the list of duties that a Sales Associate must perform and asked her if she felt she could perform those duties. Those duties are outlined above. Petitioner admitted she had difficulty with reading a planogram and operating a cash register. Likewise at the hearing, Petitioner admitted and demonstrated that she could not accurately read a planogram or shelf tag. She admitted she could not build a merchandise display, could not operate a cash register and could not make change for a customer. The evidence was clear that Petitioner could not perform the essential functions of a Sales Associate. Eventually, Petitioner was placed on leave and was told that, if her vision did not improve, she would be terminated. At no time did Petitioner ask for or identify any reasonable accommodation that could be made by Respondent to enable her to perform her duties as a Sales Associate and the evidence did not reveal that any such accommodations existed or were available. Ultimately, Petitioner was terminated because she could not perform the duties of a Sales Associate. The evidence did not demonstrate that her termination was discriminatory or the reasons given for her termination were pretextual. Finally, the evidence did not demonstrate that Petitioner’s vision impairment could be reasonably accommodated. Given these facts, Petitioner’s Petition for Relief should be dismissed.
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 January, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2009. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jean Marie Downing, Esquire 221 Thomas Drive Panama City Beach, Florida 32408 Alva L. Cross, Esquire 2300 SunTrust Financial Centre 401 East Jackson Street Tampa, Florida 33602
The Issue Whether Petitioner’s application for licensure as a preneed sales agent should be approved.
Findings Of Fact Based upon the evidence presented at hearing, the following relevant Findings of Fact are made. Petitioner seeks a license as a preneed sales agent so that she may work at Good Shepherd Memorial Gardens Funeral Home (“Good Shepherd”). Petitioner plans to work as a family service advisor to help families with preneed services. A preneed sales agent assists families with planning for funeral or burial needs prior to death. Petitioner anticipates she would conduct meetings with potential customers at the cemetery or in their homes. Petitioner worked with Good Shepherd from January 2018 until June 2018. Although Petitioner is currently not employed at the funeral home, she anticipates that Good Shepherd would allow her to return to work if her application for licensure is approved. Respondent is the state entity responsible for regulating licensure of persons who provide preneed sales services under chapter 497, Florida Statutes. When applying for any license under chapter 497, Respondent considers whether the applicant has a criminal record. An applicant must disclose any felony offense that was committed within 20 years immediately preceding the application. The Board then considers the applicant’s criminal history and whether the applicant would pose an unreasonable risk to members of the public who might deal with the applicant in preneed transactions. Petitioner has a criminal history involving an incident that occurred two years ago. In September 2016, Petitioner’s husband placed Petitioner’s then eight-year-old daughter in a dog cage because the daughter had allegedly mistreated the family dog. Petitioner returned home from work, found her daughter in the dog cage, and removed her. In a separate but related incident, Petitioner watched her husband take her daughter to her bedroom. Petitioner entered the daughter’s bedroom and saw her husband spanking her child with a flip-flop sandal on her behind. At no point did Petitioner attempt to protect her daughter from her husband’s abusive actions or report him to the appropriate authorities. The abuse was ultimately reported by a roommate who lived in the home. On June 12, 2017, Petitioner (age 28) pled nolo contendere to one count of child neglect without great bodily harm, a third-degree felony, in violation of sections 827.03(1)(e) and 827.02(2)(d), Florida Statutes. The court sentenced Petitioner to: one day of jail time with credit for time served, probation for 24 months, 100 hours of community service (within the 18 months of probation), and peaceful contact with her daughter. Petitioner was also ordered to pay court costs and fees and fines in the amount of $937.00. Adjudication of guilt was withheld. Petitioner’s husband, who was not the child’s biological father, pled guilty to two counts of child abuse without great bodily harm. Among other things, he was ordered to have no contact with the child. Prior to the criminal offense at issue in this matter, Petitioner had no criminal history. In addition, Petitioner has had no known contact with law enforcement since the criminal offense. In a Notice of Intent to Deny issued on April 26, 2018, Respondent notified Petitioner that her application for a preneed sales agent license had been denied as follows: On June 7, 2017, Ms. Hoff pled no contest to a felony charge of child neglect without great bodily harm and was sentenced to 24 months of probation, 100 hours community service, assessed court costs and fines in the amount of $937.00, and her parental rights were terminated. The [A]pplicant stated that her criminal probation will not be completed until June 2019. The Applicant stated that she has not yet paid the fines and fees assessed in this [criminal] matter. The Applicant stated that she is still married to the gentleman she was married to at the time of the arrest. This gentleman was involved in the criminal allegations of child neglect. On May 1, 2018, Petitioner timely requested a hearing disputing the factual basis for the denial of licensure. Petitioner has completed 40 hours of the 100 hours community service requirement. She anticipates that she may be eligible for early termination of her probation after she completes the community service hours. Petitioner did not present any evidence of community service other than court- ordered community service. Prior to submitting her application, Petitioner completed approximately 150 to 175 hours of training in preneed sales, covering family planning, death certificates, Veterans Affair benefits, types of burial products, and financial plan development. Petitioner provided no explanation regarding why she did not protect her daughter from abuse. In addition, Petitioner continues to live with her husband and indicated that she has not yet divorced him due to financial reasons. Petitioner has not presented sufficient evidence to meet her burden to prove that she is not a danger to the public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Funeral, Cemetery, and Consumer Services enter a final order denying Shayla Hoff’s application for licensure as a preneed sales agent. DONE AND ENTERED this 19th day of September, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 September, 2018.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of his age.
Findings Of Fact Respondent produces flexible packaging, develops technology to fill that packaging with liquids, and provides services to incorporate its flexible packaging systems into its customers' facilities. Respondent primarily produces "bag-in- box" products and manufacturing systems for customers such as Pepsi-Cola and Wendy's, as well as various customers in the milk, juice, and chemical business. Respondent operates two manufacturing facilities, one located at its headquarters in Romeville, Illinois, and another located in Union City, California. Petitioner was born on April 24, 1946. In 1996, Respondent hired Petitioner as a sales representative, and he served in that position until he was discharged on April 19, 2004. Petitioner initially was assigned to service the Upper Midwest Region and was based in Chicago, Illinois. In 1999, Respondent reassigned Petitioner to the Southeast Region. After his reassignment to the Southeast Region, Petitioner continued to live in the Chicago area for several years. However, in December 2002 or January 2003, Petitioner and Respondent mutually agreed that Petitioner would relocate to Florida. Because the move resulted from a mutual decision between Petitioner and one of Respondent's founders, Respondent paid $25,000 towards Petitioner's moving expenses. After the move, Petitioner continued to be responsible for the same geographical territory and the same customers as before the move. Joe Pranckus is Respondent's vice president of sales. At the time of Petitioner's discharge, the sales department consisted of a customer service department and four geographical sales territories: the Central, Western, Eastern and Mexico Regions. The Central and Western Regions (where Respondent's manufacturing facilities are located) each were overseen by a regional manager. The Eastern and Mexico Regions did not have regional managers. As Petitioner was located in the Eastern Region, Mr. Pranckus served as his direct supervisor. From 1999 until his dismissal, Petitioner was Respondent’s only sales representative in the Southeast. His primary responsibility was to maintain and increase Respondent’s business in that region of the country. The Rapak sales department as a whole is generally responsible for maintaining and increasing Respondent’s overall sales. This involves not only selling products and services, but also following up with customers to help them solve problems and otherwise to ensure their happiness. Because his primary responsibility was maintaining and increasing sales, Mr. Pranckus judged Petitioner almost exclusively by his year-to-date sales numbers as compared to the same period in the previous year. These numbers were calculated by Mr. Pranckus on a fiscal-year basis, from May 1st through April 30th. For the 2003-2004 fiscal year, Mr. Pranckus established a goal for Petitioner of 15 percent growth in sales. The minimum expectation was that Petitioner maintain at least the same amount of sales he had the previous year. During the 2003-2004 fiscal year, Mr. Pranckus e- mailed Petitioner his sales-versus-last-year figures on almost a monthly basis. By the end of June 2003, Petitioner had sold only 84 percent as much as he had sold through June 2002; by the end of July, only 87 percent as much as he had sold through July 2002; by the end of August, 91 percent; September, 81 percent; October, 90 percent; November, 85 percent; December, 87 percent; and by the end of March 2004 (eleven months into the fiscal year), he had sold only 88 percent as much as he had sold through the first eleven months of the 2002-2003 fiscal year. In short, as the fiscal year drew to a close, it was clear that Petitioner was going to suffer a net loss of business for the year. In late October 2003, Petitioner suffered a heart attack and underwent triple bypass surgery. Petitioner was unable to work for approximately two months while recovering from surgery. However, Petitioner returned to work in January 2004, initially working on a limited basis. Petitioner's sales numbers suffered because he lost some certain accounts owing to factors beyond his control (such as product quality and price issues). Nonetheless, Petitioner concedes that it was his job to replace his lost sales, no matter what caused his customers to switch suppliers. Mr. Pranckus typically holds one sales meeting each year for his entire staff. In February 2004, Mr. Pranckus held one of those meetings. At that meeting, Mr. Pranckus informed Petitioner that "changes would be made if [his] numbers didn't improve." In his application for unemployment compensation, Petitioner stated that Mr. Pranckus also warned him on March 10, 2004, that he needed to improve his sales numbers. Finally, Mr. Pranckus sent an e-mail to Petitioner on March 27, 2004. In that e-mail, Mr. Pranckus delivered the following written warning: Your territory is at a critical state. We can not continue along this path. Sales must be improved immediately or we will need to change. We agreed at our sales meeting to get this back on track. It is not showing up in the numbers and activity. Call me and let me know how we can help. On April 19, 2004, Mr. Pranckus discharged Petitioner because of his poor performance. His year-to-date sales figures were unacceptably low, as compared to the previous year, and Mr. Pranckus saw no evidence of plans or activity designed to improve matters. After Petitioner was discharged, he filed an application for unemployment compensation. On the application, Petitioner stated that he was discharged “for failure to achieve sales goals.” Later in that same application, in response to a request to “briefly summarize your reason for separation from this employer,” Petitioner wrote: “I did not achieve my sales goals.” Petitioner did not assert anywhere in his application for unemployment benefits that he was discharged because of his age. At the time of his discharge, Petitioner was 57 years old (almost 58). Mr. Pranckus did not know Petitioner’s exact age, but he would have guessed (based on physical appearance) that Petitioner was in his mid-50s at the time. Mr. Pranckus did not consider this to be “old.” In fact, Petitioner is not much older than Mr. Pranckus. Mr. Pranckus interviewed three individuals to fill Petitioner’s position. He ultimately selected Jim Wulff. Mr. Pranckus did not know their ages at the time of the interviews, but he would have guessed (again, by appearance) that Mr. Wulff was in his mid-50s and that the other two interviewees were in their mid- to late 40s and mid- to late 50s, respectively. In fact, Mr. Wulff was born on May 26, 1948, so he was 55 years old (nearly 56) when Mr. Pranckus hired him. Sales analysis from June 2003 showed that eight Rapak employees or representatives did not meet the 100 percent sales goal. Those listed were either Rapak non-supervising employees with direct responsibility for sales, supervising employees, or non-employee independent brokers. However, none of these employees, whether younger or older, was similarly situated to Petitioner at the time of his discharge. As an initial matter, there were four other non- supervisory employees with direct responsibility for sales: Dennis Hayes, Marvin Groom, Donald Young, and Keith Martinez. The other individuals responsible for sales were either supervisory employees or non-employee independent brokers. Because the two supervisors have management responsibilities and are responsible for their entire regions and the individuals who report to them, they are not judged primarily by whether they personally meet the 100 percent or 115 percent sales-versus- last-year objectives. Brokers, meanwhile, are not employees. Rather, they are independent contractors paid on a straight commission, so Respondent receives value from their services regardless of how much they sell. Mr. Hayes was the only other employee who performed the exact same job as Petitioner, but he reported to Regional Manager Dan Petriekis in the Central Region, not directly to Mr. Pranckus. Moreover, as of March 2004, Mr. Hayes had sold 127 percent as much as he had during the same period the previous year.1 Mr. Hayes is almost ten years older than Petitioner. Mr. Young was also responsible for sales, but he was semi-retired, serviced only one customer and received a base salary for his work. As of March 2004, however, Mr. Young had sold 115 percent as much as he had during the same period the previous year. Mr. Young is more than twelve years older than Petitioner. Finally, while Keith Martinez and Marvin Groom had some responsibility for sales, their positions were “radically different” from Petitioner’s. Whereas Petitioner could identify certain problems with Respondent’s machinery and products and would refer those problems to a service technician to assist his customers, Mr. Groom and Mr. Martinez were both originally hired as service technicians. Based on this experience, they could and did not only identify technical problems, but also performed the necessary maintenance and repair work on the spot, in addition to performing preventative maintenance. Petitioner, by contrast, has spent his entire working life as salesman. Accordingly, he was neither capable of, nor expected to, perform these additional maintenance and repair functions. As a result, Mr. Groom and Mr. Martinez received more leeway on their sales performance than Petitioner because they brought additional value to Respondent’s business that Petitioner could not offer. Nonetheless, as of March 2004, Mr. Groom was running at 100 percent versus the prior year and Mr. Martinez was running at 87 percent. Mr. Groom is roughly three years younger than Petitioner, and Mr. Martinez is 15 and one-half years younger than Petitioner. Respondent paid Petitioner $113,000 in salary and commissions during his last full calendar year of employment with Rapak. Petitioner was out of work for ten months after his dismissal. During that time, he received $8,000 in unemployment compensation from the State of Florida and $8,942.33 in severance pay from Respondent. In his new job, Petitioner projects that he will earn $100,000 in his first year but admits that he could make at least $113,000 because his compensation is once again dependent upon sales commissions.
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 Respondent committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 26th day of July, 2006.
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.
