10-004985 Dawn M. Sole vs. Adt Security Services Status: Closed Recommended Order on Wednesday, October 27, 2010.

Summary: Complainant failed to meet her burden of proving that she was denied promotion because of her gender, where employer affirmatively established that promotional position in question was not available at time complainant applied for the position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAWN M. SOLE , )

)

Petitioner, )

)

vs. ) Case No. 10 - 4985

)

ADT SECURITY SERVICES , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

August 17, 2010, by video teleconference at sites in Lauderdale

Lakes a nd Tallahassee, Florida.

APPEARANCES

For Petitioner: Orion G. Callison , III, Esquire

Silver, Garvett & Hinkel, P.A.

18001 Old Cutler Road, Suite 600

Miami, Florida 33157

For Respondent: Michael Tricari co , Esquire

Ogletree, Deakins, Nask, Smoak

and Stewart , P.C.

701 Brickell Avenue, Suite 202 0

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent committed the unlawful empl oyment

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.

PRELIMINARY STATEMENT

On or about December 2 1, 2009 , Petitioner filed a Charge of

Disc rimination (Complaint) with the FCHR , alleging that

Respondent had unlawfully, based on her gender, failed to

promote her to a Core Commercial Sales Manager position for

which she had applied (as an internal candidate) . H er Complaint

contained the followi ng " particulars ":

I am a full time employee of ADT Security

Services, Inc. ("ADT") in its Miramar,

Florida office in Broward County, Florida.

In June of 2009 I timely applied for a

position as a Core Commercial Sales Manager

for Miami - Dade County, Florida . The

position was posted on ADT's website as

being open. I was qualified for the

position. However, I was not considered for

the position. I was not interviewed for the

position, and I was not given the position

because I am a woman. The position was

awarded instead to a less qualified male

employee in July of 2009. I have been

advised by co - workers that the decision not

to hire me was based on my gender. Also,

statistically ADT hires very few women for

the position I was seeking. I complained in

J uly, 2009 to ADT Human Resources that I had

been discriminated against on the basis of

my gender. ADT failed to investigate or

take action on my claim. I was given a

pretextual and untrue reason why I was not

considered, interviewed or hired. I have

bee n discriminated against on the basis of

my gender.

On June 3 , 20 10 , the FCHR, following the completion of its

investigation of the Complaint, issued a Notice of

Determination: No Cause. Thereafter, Petitioner, on July 7 ,

20 10 , filed with the FCHR a Peti tion for Relief .

On July 9 , 20 10 , the FCHR referred the matter to DOAH for

the assignment of a DOAH administrative law judge to "conduct

all necessary proceedings required under the law and submit

recommended findings to the [FCHR]."

As noted above, th e final hearing in this case was held

before the undersigned on August 17, 20 10 . Five witnesses

( Petitioner , Natasha Carosielli, Alan Margulies, Andre s Vidales ,

and Kurt is Sonnenberg ) testified at the hearing. In addition,

21 exhibits (P etitioner's Exhib its 1 through 3 and 5 through 15,

and Respondent's Exhibits 1 t hrough 7 ) were offered and received

into evidence.

At the close of the evidentiary portion of the hearing, the

undersigned, on the record, set an October 11, 2010, deadline

for the filing of proposed recommended orders .

On October 4, 2010, Petitioner filed an unopposed motion

requesting an extension of time, until October 18, 2010, for the

parties to file their proposed recommended orders. The motion

was granted by Order issued October 5, 201 0.

Petitioner and Respondent timely filed their Proposed

Recommended Orders on October 18, 2010 .

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. 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 government al )

clients.

2. Petitioner is a 30 - year - old female . After graduating

from high school, s he attended Passai c College in New Jersey ,

accruing approximately ni ne fewer credits than she need ed to

obtain an associate's (two - year) degree in business management.

3. Petitioner is currently ADT 's Broward County

Residential/Small Business Resale Manager . S he started w orking

for ADT in 1999 as a Residential Sales R epresentative. In 2001,

she moved to a Core Commercial Sales R epresentative position .

I n May 2005 , she voluntarily left the company "[t] o pursue

another opportunity ," but returned in April 2008 as a C ore

C om mercia l Sales R epresentative, working out of ADT's Miami

office (as she had from October 2004 until her departure in May

2005 2 ) . S he remained a Miami C ore Commercial Sales

R epresentative until being promoted to her present position (her

first "direct repo rt" managerial position 3 ) 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 .

4. Before becoming the Broward County Residential/Small

Busi ness 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 Positio n .

5. The recruiting for the MCCSM Position was handled , not

by ADT's local Human Resources office, but by a female

independent contractor, Natasha Carosielli.

6. Ms. Carosielli posted the position opening on ADT's

internal and external websites . The po sting 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 te am 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 initi atives

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

chann el 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 :

1. Model and champion ADT values. C reate a

safe environment for the discussion and

resolution of values - related issues and

concerns.

2. Plan, coordinate and implement

Commercial sales operations. This would

include business and customer development

and territory management.

3. Attain b udgeted revenue expectations.

Assure the profitability of the channel is

met.

4. Build and retain an effective team of

sales representatives. Lead, coach and

motivate team to achieve pre - established

goals.

5. Se t 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.

6. Measure the activities of each sales

representative to assure that their

marketing activities will produc e intended

sales production.

7. Implement and execute the company's

marketing strategy and business plans.

8. Work in concert with other department

and business segment leaders to assure

congruence with sales operations,

representing the voice of the d epartment,

the customer and the interests of the sales

team.

9. Work with National Account Man a gers 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 t o effectively interact

with internal organization and customer

organization s both at the senior executive

and field level

- Functional/Technical Skills in leading a

sales organization

- Action Oriented

- Business Acumen

- Drive for Results

- Mana ging & Measuring Work

- Customer Focus

- Building Effective Teams

- Motivating Others

- Organizational Agility

- Interpersonal Savvy

- Conflict Management

- Learning/Change Agility

- Managing Vision & Purpose

- Managerial Courage

- Mana ging Diversity

- Developing Direct Reports & Others

Other:

Ability to travel nights and weekends to

accommodate the customer's agenda.

Th is language is boilerplate that ADT uses , nationwide , whenever

it advertises an opening for a Core Comm e rcial Sale s Manager

position . 6

7. Ms. Carosielli review ed 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 f or 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

forwa rd were not seen by the hiring manager.

8. 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 Reg ion Group Director for Commercial

Sales .

9. Among Mr. Weaver's " direct reports " is ADT's Southeast

Area Commercial Sales Manager , to whom , in turn, the MCCSM

reports. 7

10. 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.

11. Mr. Weaver subsequently offered the Southeast Area

Commercial Sales Manager position to an internal candidate,

Kurtis Sonnenberg, w ho was then ADT's Director of Custom Home

Services.

12. 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

Manage r 8 ) . Among these responsibilities was serving as the

hiring manager for the open MCCSM Position. Mr. Weaver directed

Mr. Sonnenberg to make t he filling of this open p osition (which

had already been advertised for two months) Mr. Sonnenberg's

"first and f oremost . . . priority."

13. 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) a nd 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

"d iverse group of candidates."

14. 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, w ho 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."

15. Mr. Vidales , sometime later that day (June 4, 2009) ,

"appl[ied] onlin e" for the MCCSM Position, as Mr. Sonnenberg had

suggested he do .

16. 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 forward ed Mr. Vidales' resume to

Mr. Sonnenberg.

17. That same day (June 4, 2009), M r. 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.

18. Mr. Vidales was, in M r. Sonnenberg's opinion, "an

extremely qualified candidate " who possessed the attributes he

was looking for.

19. Mr. Sonnenberg "wanted . . . another opinion , "

however, to either "validate his belief" that Mr. Vidales was

the right person for the MCCSM Po sition 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 .

20. Mr. Weaver agreed with Mr. Sonnenberg's assessment of

Mr. Vidales ' suit ability for the MCCSM Position, and he so

informed Mr. Sonnenberg.

21. The afternoon of June 5, 2009, Mr. Sonnenberg verbally

offered Mr. Vidales the MCCSM Position , and Mr. Vidales accepted

the offer.

22. Later that afternoon (June 5, 2009), Mr. Sonnen berg

informed Ms. Carosielli of this development.

23. 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 forwa rded no more resumes to

Mr. Sonnenberg, the hiring manager.

24. 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 applica nts" 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. Vidal es was ac tually in the position 11 to take

them down.

25. 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 cons idered 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.

26. 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 w as 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 a pplication , 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 y ou to access and update you r

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 A DT

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.

27. 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. V idales 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 her e 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 th ere 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 o n 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 a nd 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.

28. Ms. Maia conta cted 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 app ly 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 err oneo us assumption

that Petitioner's application had been submitted "prior to

[Mr. Vidales'] being offered the position."

29. 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 M s. 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 menti oned, 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.

30. 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

Opportu nity 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 par agraph 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 e mployment 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 represen tative 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.

31. Petitioner's attorney and Respondent's attorney

subsequently exchanged correspondence, but there was no

"amicable resolution." The instant litigation ensued.

CONCLUSIONS OF LAW

32. The Florida Civil Rights Act of 1992 (Act) is codified

in Sections 760.01 through 7 60.11, Florida Statutes, and Section

509.092, Florida Statutes.

33. "The Act, as amended, was [generally] patterned after

Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. §

2000, et seq., as well as the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. § 623. Federal case law interpreting

[provisions of] Title VII and the ADEA is [therefore] applicable

to cases [involving counterpart provisions of] the Florida Act."

Florida State University v. Sondel , 685 So. 2d 923, 925 n.1

(Fla. 1st DCA 1996); see also Joshua v. City of Gainesville , 768

So. 2d 432, 435 (Fla. 2000)("The [Act's] stated purpose and

statutory construction directive are modeled after Title VII of

the Civil Rights Act of 1964."); Valenzuela v. GlobeGround North

America, LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009)("Because the

FCRA is patterned after Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. §§ 2000e - 2000e - 17, we look to

federal case law."); City of Hollywood v. Hogan , 986 So. 2d 634,

641 (Fla. 4th DCA 200 8)("Federal case law interpreting Title VII

and the ADEA applies to cases arising under the [Act]."); and

School Board of Leon County v. Hargis , 400 So. 2d 103, 108 n.2

(Fla. 1st DCA 1981)("Florida' s job discrimination statute is

patterned on Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e - 2.").

34. Among other things, the Act makes certain acts

"unlawful employment practices" and gives the FCHR the

authority, if it finds following an administrative hearing

conducted pursuant to Sections 120.5 69 and 120.57, Florida

Statutes, that such an "unlawful employment practice" has

occurred, to issue an order "prohibiting the practice and

providing affirmative relief from the effects of the practice,

including back pay." 18 §§ 760.10 and 760.11(6), Fla. S tat.

35. To obtain such relief from the FCHR, a person who

claims to have been the victim of an "unlawful employment

practice" must, "within 365 days of the alleged violation," file

a complaint ("contain[ing] a short and plain statement of the

facts desc ribing the violation and the relief sought") with the

FCHR, the EEOC , or "any unit of government of the state which is

a fair - employment - practice agency under 29 C.F.R. ss. 1601.70 -

1601.80." § 760.11(1), Fla. Stat. This 365 - day period within

which a comp laint must be filed is a "limitations period" that

can be " be equitably tolled, but . . . only [based on the] acts

or circumstances . . . enumerated in section 95.051," Florida

Statutes. Greene v. Seminole Electric Co - op., Inc. , 701 So. 2d

646, 648 (Fla. 5th DCA 1997).

36. "[T]o prevent circumvention of the [FCHR's]

investigatory and conciliatory role, only those claims that are

fairly encompassed within a [timely - filed complaint] can be the

subject of [an administrative hearing conducted pursuant to

Sect ions 120.569 and 120.57, Florida Statutes]" and any

subsequent FCHR award of relief to the complainant. Chambers v.

American Trans Air , Inc. , 17 F.3d 998, 1003 (7th Cir. 1994).

37. In the instant case, Petitioner alleged in the

employment discrimination complaint that s he filed with the FCHR

on December 1, 2009, that ADT "discriminated against [her] on

the basis of [her] gender" when it fail ed to select her to fill

the Core Commercial Sales Manager position for which she had

applied (as an internal candid ate seeking a promotion ) .

38. To deny a n employee a promotion because of the

employee's gender , as Petitioner claims ADT has done in the

instant case, is an "unlawful employment practice" in viola tion

of Section 760.10(1)(a), which provides as follows:

It is an unlawful employmen t practice for an

employer: [ 19 ]

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, becaus e of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

39. Petitioner had the burden of proving, at the

administrative hearing held in this case, that she was the

victim of such discriminatorily motivated ac tion. See

Department of Banking and Finance Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 934 (Fla. 1996)("'The general rule is that a party

asserting the affirmative of an issue has the burden of

presenting evidence as to that issue."'); Florida Department of

Health and Rehabilitative Services v. Career Service Commission ,

289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof

is 'on the party asserting the affirmative of an issue before an

administra tive tribunal.'"); and Mack v. County of Cook , 827 F.

Supp. 1381, 1385 (N.D. Ill. 1993)("To prevail on a racially -

based discriminatory discharge claim under Title VII, Mack must

prove that she was a victim of intentional discrimination.").

40. "Discrimina tory intent may be established through

direct or indirect circumstantial evidence." Johnson v.

Hamrick , 155 F. Supp. 2d 1355, 1377 ( N.D. Ga. 2001 ); see also

United States Postal Service Board of Governors v. Aikens , 460

U.S. 711, 714 ( 1983)("As in any law suit, the plaintiff [in a

Title VII action] may prove his case by direct or circumstantial

evidence. The trier of fact should consider all the evidence,

giving it whatever weight and credence it deserves . ").

41. " Direct evidence is evidence that, if bel ieved, would

prove the existence of discriminatory intent without resort to

inference or presumption." King v. La Playa - De Varadero

Restaurant , No. 02 - 2502, slip op. at 15 n.9 (Fla. DOAH

February 19, 2003)(Recommended Order); see also Wilson v. B/E

Aero., Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004)("Direct

evidence is 'evidence, that, if believed, proves [the] existence

of [a] fact without inference or presumption.' "). "If the

[complainant] offers direct evidence and the trier of fact

accepts that evidence , then the [complainan t] has proven

discrimination." Maynard v. Board of Regents , 342 F.3d 1281,

1289 (11th Cir. 2003) .

42. "[D]irect evidence is composed of 'only the most

blatant remarks, whose intent could be nothing other than to

discriminate [or ret aliate]' on the basis of some impermissible

factor. . . . If an alleged statement at best merely suggests a

discriminatory motive, then it is by definition only

circumstantial evidence." Schoenfeld v. Babbitt , 168 F.3d 1257,

1266 (11th Cir. 1999). Likew ise, a statement "that is subject

to more than one interpretation . . . does not constitute direct

evidence." Merritt v. Dillard Paper Co. , 120 F.3d 1181, 1189

(11th Cir. 1997).

43. "[D]irect evidence of intent is often unavailable."

Shealy v. City of Albany, Ga. , 89 F.3d 804, 806 (11th Cir.

1996). For this reason, those who claim to be victims of

intentional discrimination "are permitted to establish their

cases through inferential and circumstantial proof." Kline v.

Tennessee Valley Authority , 128 F.3d 337, 348 (6th Cir. 1997).

44. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the "shifting

burden framework established by the [United States] Supreme

Court in McDonnell Douglas Corp. v. Green , 411 U.S . 792, 93 S.

Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep't of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d

207 (1981)" is applied. "Under this framework, the

[complainant] has the initial burden of establishing a prima

facie c ase of discrimination. If [the complainant] meets that

burden, then an inference arises that the challenged action was

motivated by a discriminatory intent. The burden then shifts to

the employer to 'articulate' a legitimate, non - discriminatory

reason fo r its action.[ 20 ] If the employer successfully

articulates such a reason, then the burden shifts back to the

[complainant] to show that the proffered reason is really

pretext for unlawful discrimination." Schoenfeld v. Babbitt ,

168 F.3d at 1267 (citations omitted.).

45. " To establish a prima facie case of gender

discrimination based on a failure to promote, [a complainant]

must demonstrate (1) she is a member of a protected class;

(2) she was qualified and applied for a promotion to an

available position ; (3) she was rejected; and (4) a similarly

situated employee, not part of the protected group, was promoted

instead. " Ottman v. City of Independence , 341 F.3d 751, 756 - 757

(8th Cir. 2003) . Absent a showing that the promotional position

sought was availa ble at the time of the complainant's

application, the complainant cannot even establish a prima facie

case of discrimination . See Texas Department of Community

Affairs v. Burdine , 450 U.S. 248, 253 (1981)(" The pl aintiff must

prove by a pre ponderance of th e evidence that she applied for an

available position for which she was qualified, but was rejected

under circumstances which give rise to an inference of unlawful

discrimination. "); International Brotherhood of Teamsters v.

United States , 431 U.S. 324, 35 8 n.44 (1977)(" Although the

McDonnell Douglas formula does not require direct proof of

discrimination, it does demand that the alleged discriminatee

demonstrate at least that his rejection did not result from the

two most common legitimate reasons on which an employer might

rely to reject a job applicant: an absolute or relative lack of

qualifications or the absence of a vacancy in the job sought.

Elimination of these reasons for the refusal to hire is

sufficient, absent other explanation, to create an in ference

that the decision was a discriminatory one. "); Guimaraes v.

NORS , 366 Fed. Appx. 51, 55 (11th Cir. Fla. 2010)(same); Morgan

v. Federal Home Loan Mortgage Corp. , 328 F.3d 647, 652 (D.C.

Cir. 2003)(" Having thus failed to raise a genuine issue that th e

Business Support position for whi ch he applied was one ' for

which the e mployer was seeking applicants,' . . . Morgan failed

to establish a prima facie case of either discrimination or

retaliation, and summary judgment on this claim was therefore

appropri ate. "); Pierce v. F.Ripler & Co. , 955 F.2d 820, 824

(2d Cir. 1992)("Hartmarx claims that in order to be held liable

for age discrimination for failing to promote Pierce to General

Manager, that position must have been available at the time

Pierce appli ed for it. This unremarkable proposition is clearly

correct."); and Pledger v. Mayview Convalescent Home, Inc. , No.

5:07 - CV - 235 - F, 2009 U.S. Dist. LE XIS 33198 ** 35 - 36 (E.D. N.C.

April 14, 2009), aff'd , 374 Fed. Appx. 431 (4th Cir.

2010) ( " Pledger also clai ms that she applied for the position of

Assistant Director of Nursing but was not promoted. She is

unable, however, to show a prima facie case of discrimination

with respect to this position: the undisputed evidence is that

this position was filled on Ap ril 24, 2006, and that Pledger did

not apply for this position until May. ") .

46. Under no circumstances is proof that, in essence,

amounts to no more than mere speculation and self - serving belief

on the part of the complainant concerning the motives of th e

employer sufficient, standing alone, to establish a prima facie

case of intentional discrimination. See Byers v. Dallas Morning

News, Inc. , 209 F.3d 419, 427 (5th Cir. 2000)("Byers has failed

to produce any direct evidence of discriminatory intent by Br own

or TDMN or sufficient evidence indirectly demonstrating

discriminatory intent. Instead, Byers urges this Court to rely

on his subjective belief that Brown discriminated against him

because he was white. This Court will not do so."); Mitchell v.

Toled o Hospital , 964 F.2d 577, 585 (6th Cir. 1992)("Even if the

Court were to consider the Affidavit, the statements contained

therein are nothing more than rumors, conclusory allegations and

subjective beliefs which are wholly insufficient evidence to

establis h a claim of discrimination as a matter of law.");

Little v. Republic Refining Co., Ltd. , 924 F.2d 93, 96 (5th Cir.

1991)(" Little points to his own subjective belief that age

motivated Boyd. An age discrimination plaintiff's own good

faith belief that his age motivated his employer's action is of

little value."); Elliott v. Group Medical & Surgical Service ,

714 F.2d 556, 567 (5th Cir. 1983)("We are not prepared to hold

that a subjective belief of discrimination, however genuine, can

be the basis of judicia l relief."); and Shiflett v. GE Fanuc

Automation , 960 F. Supp. 1022, 1031 (W.D. Va. 1997 )("[A]ll too

many leaps and unjustifiable inferences must be made before one

can reasonably conclude that any causal connection exists

between plaintiff's termination a nd his disability. Nothing in

the record, apart from plaintiff's private speculation, provides

any reason to believe there is such a connection. But '[m]ere

unsupported speculation, such as this, is not enough to defeat a

summary judgment motion.'").

47. "Although the intermediate burdens of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the employer intentionally discriminated against the

[complainant] remains at all times with the [complainant] ."

EEOC v. Joe' s Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir.

2002 ); see also Byrd v. BT Foods, Inc. , 948 So. 2d 921, 927

(Fla. 4th DCA 2007)("The ultimate burden of proving intentional

discrimination against the plaintiff remains with the plaintiff

at all times . "); and Brand v. Florida Power Corp. , 633 So. 2d

504, 507 (Fla. 1st DCA 1994)("Whether or not the defendant

satisfies its burden of production showing legitimate,

nondiscriminatory reasons for the action taken is immaterial

insofar as the ultimate burden of p ersuasion is concerned, which

remains with the plaintiff.") .

48. Where the administrative law judge does not halt the

proceedings "for lack of a prima facie case and the action has

been fully tried, it is no longer relevant whether the

[complainant] actua lly established a prima facie case. At that

point, the only relevant inquiry is the ultimate, factual issue

of intentional discrimination. . . . [W]hether or not [the

complainant] actually established a prima facie case is relevant

only in the sense that a prima facie case constitutes some

circumstantial evidence o f intentional discrimination." Green

v. School Board of Hillsborough County , 25 F.3d 974, 978 (11th

Cir. 1994) (citation omitted); see also Aikens , 460 U.S. at 713 -

715 ("Because this case w as fu lly tried on the merits, it is

surprising to find the parties and the Court of Appeals still

addressing the question whether Aikens made out a prima facie

case. We think that by framing the issue in these terms, they

have unnecessarily evaded the ultimate question of

discrimination vel non . . . . [W] hen the defendant fails to

persuade the district court to dismiss the action for lack of a

prima facie case, and responds to the plaintiff's proof by

offering evidence of the reason for the plaintiff's rejecti on

[as a candidate for promotion] , the factfinder must then decide

whether the rejection was discriminatory within the meaning of

Title VII. At this stage, the McDonnell - Burdine presumption

'drops from the case,' and 'the factual inquiry proceeds to a

new level of specificity.' After Aikens presented his evidence

to the District Court in this case, the Postal Service's

witnesses testified that he was not promoted because he had

turned down several lateral transfers that would have broadened

his Postal Ser vice experience. The District Court was then in a

position to decide the ultimate factual issue in the case. . . .

Where the defendant has done everything that would be required

of him if the plaintiff had properly made out a prima facie

case, whether th e plaintiff really did so is no longer relevant.

The district court has before it all the evidence it needs to

decide whether 'the defendant intentionally discriminated

against the plaintiff.'") (citation omitted) ; Wallace v.

Louisiana Board of Supervisors for the Louisiana State

University Agricultural & Mechanical College , 364 Fed. Appx. 902

(5th Cir. 2010)("Because this case was tried on the merits, we

are not concerned with the adequacy of the parties' showing

under McDonnell Douglas and instead review the district court's

finding on the ultimate factual issue of discrimination vel non

for clear error."); Beaver v. Rayonier, Inc. , 200 F.3d 723, 727

(11th Cir. 1999)("As an initial matter, Rayonier argues it is

entitled to judgment as a matter of law becau se Beaver failed to

establish a prima facie case. That argument, however, comes too

late. Because Rayonier failed to persuade the district court to

dismiss the action for lack of a prima facie case and proceeded

to put on evidence of a non - discriminatory reason -- i.e., an

economically induced RIF -- for terminating Beaver, Rayonier's

attempt to persuade us to revisit whether Beaver established a

prima facie case is foreclosed by binding precedent ."); and

Carmichael v. Birmingham Saw Works , 738 F.2d 1126, 112 9 (11th

Cir. 1984) (" The plaintiff has framed his attack on the trial

court's findings largely in terms of whether the plaintiff made

out a prima facie case of discrimination. We are mindful,

however, of the Sup reme Court's admonition that when a disparate

treatment case is fully tried, as this one was, both the trial

and the appellate courts should proc eed directly to the

'ultimate question' in the case: ' whether the defendant

intentionally discriminated against the plaintiff .' " ) .

49. The instant case wa s " fully tried ," with Petitioner

and ADT having both presented evidence.

50. A review of the evidentiary record reveals no

persuasive proof of prohibited intentional gender discrimination

on Respondent's part in its handling of Petitioner's application

fo r the MCCSM Position . Indeed, although not required to do so,

ADT affirmatively established through its evidentiary

presentation ( which included the credible testimony of

individuals directly involved in the recruiting and hiring

process) that the lack of consideration Petitioner's application

received was solely the product of when (not by whom) it was

filed, and her gender played no role whatsoever in her not being

selected to fill the position.

51. In light of the foregoing, Petitioner 's employment

di scrimination complaint must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the F lorida 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 27 th day of October , 20 10 , in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M . LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flori da 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divisio n of Administrative Hearings

this 2 7 th day of October , 20 10 .

ENDNOTES

1 All references to Florida Statutes in this Recommended Ord er

are to Florida Statutes (2010 ).

2 Prior to October 2004, Petitioner had worked out of ADT's

Totowa, New Jersey office.

3 As a Core Commercial Sales Representative , Petitioner had been

a "team leader," but she never had had any "direct reports."

4 In their Joint Pre - Hearing Stipulation, the parties stipulated

that "[Petitioner] became the Broward County Residential/Small

Business Resale Manager on or about Sept 26, 2009. "

5 The MCCSM Position is one of seven ADT Core Commercial Sales

Manager positions located in Florida (a ll of which currently have

male occupants).

6 If a particular situation dictates, ADT will be "flexible in

terms of selection criteria" and hire an individual not meeting

all of the "[r]equirements" listed in this "[j]ob

[d]escription."

7 The six oth er Commercial Sales Managers in Florida also report

to the Southeast Area Commercial Sales Manager .

8 From June 1, 2009, to July 1, 2009, Mr. Sonnenberg was

"transitioning out" of his position as the Director of Custom

Home Services .

9 At the time, the commercial sales team in ADT's Miami office,

as a group, was "performing below . . . standards."

10 Although Mr. Vidales did not yet have a "College Degree in

Business, Marketing or other related field," he was "very close"

to earning a bachelor's de gree in finance from Florida

International University. (It was only six months later that he

was awarded such a degree.)

11 Mr. Vidales did not "assume" the MCCSM Position until

sometime in "late August," following extended "negotiat[ions]"

with Tim McK inney, the supervisor to whom Mr. Vidales reported

in his capacity as the Sales Manager for Custom Home Services in

South Florida . Mr. McKinney initially was "not willing to

release" Mr. Vidales, but subsequently relented after

Mr. Vidales filed a complai nt with ADT's local Human Resources

office.

12 These "several people" were Daniel Bruison, Mario Santana,

Aaron Solomon, and Theresa Maia. Apparently, all of them,

including Ms. Maia, the local ADT Human Resources Manager, had

been unaware, at the time they had spoken with Petitioner, that

Mr. Vidales had already accepted the position and that, as a

result, the application review process had come to a halt.

13 Mr. Vidales did not receive a formal "offer letter" sooner

because his "start date" was being "negotiated" and had not been

finalized. (ADT does not send out "offer letters" before a

"start date" is determined.)

14 In fact, at no time prior to this e - mail had Mr. Sonnenberg

been in possession of Petitioner's resume.

15 Petitioner did not want to move to Kentucky, so she did not

apply for this position.

16 He was being truthful in making this assertion.

17 Mr. Sonnenberg has deviated from this practice in the past,

on occasion, when circumstances have warranted.

18 The FCHR, however, has no authority to award monetary relief

for non - quantifiable damages. See City of Miami v. Wellman , 976

So. 2d 22, 27 (Fla. 3d DCA 2008)("[N]on - quantifiable

damages . . . are uniquely within the jurisdiction of the

courts."); and Simmons v. Inverness Inn , No. 93 - 2349, 1993 Fla.

Div. Adm. Hear. LEXIS 5716 *4 - 5 (Fla. DOAH October 27,

1993) (Recommended Order) ("In this case, petitioner does not

claim that she suffered quantifiable damages, that is, damages

arising from being terminated from employment, or from bei ng

denied a promotion or higher compensation because of her race.

Rather, through argument of counsel she contends that she

suffered pain, embarrassment, humiliation, and the like (non -

quantifiable damages) because of racial slurs and epit [he] ts

made by r espondents. Assuming such conduct occurred, however,

it is well - settled in Florida law that an administrative agency

(as opposed to a court) has no authority to award money damages.

See , e. g. , Southern Bell Telephone & Telegraph Co. v. Mobile

America Co rporation, Inc. , 291 So. 2d 199 (Fla. 1974); State,

Dept. of General Services v. Biltmore Construction Co. , 413 So.

2d 803 (Fla. 1st DCA 1982); Laborers International Union of

N.A., Local 478 v. Burroughs , 541 So. 2d 1160 (Fla. 1989). This

being so, it is concluded that the Commission cannot grant the

requested relief, compensatory damages . ").

19 An "employer," as that term is used in the Act, is defined in

Section 760.02(7), Florida Statutes, as "any person employing 15

or more employees for each working day in each of 20 or more

calendar weeks in the current or preceding calendar year, and

any agent of such a person."

20 " To 'articulate' does not mean 'to express in argument.'"

Rodriguez v. General Motors Corporation , 904 F.2d 531, 533 (9th

Cir. 1990 ). "It means to produce evidence." Id. ; see also

Mont - Ros v. City of West Miami , 111 F. Supp. 2d 1338, 1349 (S.D.

Fla. 2000)("This burden is merely one of production, not

persuasion, and is exceedingly light.").

COPIES FURNISHED:

Orion G. Callison, Esquire

Silver, Garvett & Hinkel, P.A.

18001 Old Cutler Road, Suite 600

Miami, Florida 33157

Michael Tricarico, Esquire

O gletree, Deakins, Nask, Smoak and

Stewart, P.C.

701 Brickell Avenue, Suite 2020

Miami, Florida 33131

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Ag ency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Al l parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.