10-006756 Tamara A. Gleason vs. Ricoh Americas Corp. Status: Closed Recommended Order on Friday, February 18, 2011.

Summary: Complaints not stating facts or claims indicating sex discrimination were not protected activity supporting retaliation claim. Female sales manager demoted for not achieving her quotas and failing to maintain sales team size did not prove discrimination.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMARA A. GLEASON, )

)

Petitioner, )

)

vs. ) Case No. 10 - 6756

)

RICOH AMERICAS CORP., )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge, John D.C. Newton, II, of the

Division of Administrative Hearings conducted the h earing in

this case, as noticed , on November 22, 2010 , at Fort Lauderdale,

Florida.

APPEARANCES

For Petitioner: Kimberly A. Gilmour, Esquire

4179 Davie Road , Sui te 101

Davie, Florida 33314

For Respondent: David A. Young, Esq uire

Fisher & Phillips, LLP

300 South Orange Avenue, Suite 1250

Orlando, Florida 32801

STATEMENT OF THE I SSUES

A. Did Respondent, Ricoh Americas Corporation, (Ricoh),

discriminate against Petitioner, Tamara Gleason (Ms. Gleason) ,

because of her gender by demoting her ?

B. Did Ricoh retaliate against Ms. Gleason for complaining

about gender discrimination ?

PR ELIMINARY STATEMENT

Ms. Gleason filed a complaint of gender discrimination and

retaliation by her former employer, Ricoh, with the Florida

Commission on Human Relations (Commission) on February 18, 2010.

The Commission investigated the complaint. On June 30, 2010,

the Commission issued its Notice of Determination that there was

no reasonable cause to believe that Ricoh committed an unlawful

employment practice. The Commission dismissed Ms. Gleason ' s

complaint.

Ms. Gleason filed a Petition for Relief fr om an Unlawful

Employment Practice with the Commission on July 28, 2010. The

Commission referred the Petition to the Division of

Administrative Hearings on July 30, 2010. The undersigned

scheduled the hearing in this matter to begin October 11, 2010.

Up on the motion of Ricoh , the hearing was continued until

November 22, 2010. The hearing was held as scheduled.

Ms. Gleason testified on her own behalf . Ms. Gleason

offered the following Petitioner ' s exhibits that were accepted

into evidence: 1 - 5 and 7 - 10. Ricoh presented the testimony of

Rhonda Mc I ntyre and Al Hines. Ricoh offered the following

Respondent ' s exhibits that were accepted into evidence: 1 - 22 .

The parties ordered a transcript, which was filed with the

Division. The parties timely filed Prop osed R ecommended O rders.

They have been considered in preparation of this recommended

order.

FINDINGS OF FACT

1. Ricoh is in the business of selling and servicing

document imaging and output equipment, including copiers, fax

machines, printers , and relat ed 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.

2. In 2008 , and at all times relevant to this proceeding,

Al Hines (Mr. Hines) was the East Florida Marketplace m anager.

His responsibilities included supervising sales personnel and

meeting sale s 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.

3. In 2008, the organizational structure of the East

Florida Marketplace consisted of two group sales manage r s, one

in C entral Florida and one in S outh Florida. These group sales

manager s reported directly to the Marketplace Manager Mr. Hines.

They oversaw sales manager s who in turn supervised the various

account executive s. Also , one sales manager in Jackson ville

reported directly to Mr. Hines.

4. The group sales manager s and sales manager s were

responsible for supervising the sales personnel, consisting of

major account executives , senior account executive s, and account

executive s. Ricoh assigned major acc ount executives to work

with specific large client accounts. Senior a ccount e xecutives

were more experienced sales representatives . Senior a ccount

e xecutives and account executive s were assigned territories.

Daytona Beach or a series of zip codes are ex amples of

territories. Ricoh also assigned " vertical markets " for a

specific industry, such as " faith - based " institutions to an

Account Executive.

5. Ms. Gleason applied and interviewed for an account

executive position in the central Florida area of t he East

Florida M arket place in August 2008. Mr. Hines, General Sales

Manager Cecil Harrelson, and Sales Manager Anthony Arritt

interviewed Ms. Gleason.

6. On her resume and in her interview, Ms. Gleason

represented that she had 20 years of experience a s 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 . "

7. 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.

8. 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 consid ered 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.

9. Ms. Gleason accepted M r. Hines ' proposal. On

September 30, 2008, Mr. Hines promoted her to sales manager .

Ricoh provided Ms. Gleason manager training.

10. In April and May of 2009, Ricoh restructured its sales

positions. Ricoh changed group sales manager positions to

strat egic account sales manager positions. It removed all major

account executives from teams supervised by sales manager s and

placed them on the teams supervised by the strategic account

sales manager s.

11. In c entral Florida, the reorganization resulted in

Cecil Harrelson being moved from g eneral 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 n ew 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.

12. On average, the sales manager s in the East Florida

Marketplace each l ost two major account executives due to the

reorganization. Mr. Hines required all of the sales manager s 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.

13. From the time of her hire until early 2009 , around the

time that the Company reorganized its sales positions,

Ms. Gleaso n had no issues with Mr. Hines or complaints about his

management.

14. 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.

15. Mr. Hines assigned monthly sales quotas for sales

manager s. 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 executive s,

the monthly quota was $40,000. The monthly quota for account

executive s was $30,000.

16. Mr. Hines conducted bi - monthly two - day sales meetings

with all of the sales manager s 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.

17. In addition, Mr. Hines conducted weekly sales calls

w ith the sales manager s to review their sales progress. During

the calls, sales manager s 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 representa tive on a manager ' s team during the calls. The

discussions included examination of reasons for non - performance.

18. 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.

19. At the time of the transfer, Vargas expected to

complete a large , one - time $320,000 sale on which she had been

working. M r. Hines anticipated that this sale would help

Ms. Gleason achieve her sales quotas.

20. 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

exp erienced sales representative.

21. 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 Gainesvill e. Sales Manager

Derrick Stephenson supervised a substantially larger geographic

area than Ms. Gleason. His area reached from Key West to West

Palm Beach.

22. After the reorganization, Ms. Gleason ' s sales

productivity declined. She also was not maintai ning her

headcount. The other Sales Managers experienced the same

problems initially. But they recovered from the changes.

Ms. Gleason never did.

23. 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

Se ptember - 11% or $18,261 in sales

October - 23% or $36,811 in sales

24. 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

(3 3 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%.

25. The attainment percentages for all of the sal es

manager s 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.

26. 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.

27. No male sales manager s in Ricoh ' s East Florida

Marketplace had similar deficiencies in meeting sales quota.

Th ere is no evidence that any male sales manager s 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.

28. 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 1 9. 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.

29. Mr. Hines h elped 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 M s. Gleason was unable to reach

the expected headcount.

30. 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 unti l he sold something. This was a common practice

with newer sales representatives. Mr. Herrick had also been

assigned to male sales manager s.

31. Mr. Hines asked Ms. Gleason and Mr. Herrick to bring

him business cards from their sales visits. He ofte n did this

to verify sales efforts. After Mr. Hines reviewed the cards, he

threw them in the tras h. 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

s ales representatives providing the same card multiple times.

32. 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.

33. Later, Mr. Hines gave M s. Gleason a written warning in

a counseling document dated August 31, 2009. The document

stated that her performance had not been acceptable.

34. The counseling memorandum directed Ms. Gleason to

reach 65% of her quota. It also said that she was ex pected to

maintain a minimum of seven people on her team and work in the

field with her sale s 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. "

3 5. 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 .

36. In September Ms. Gleason achieved 11% of her quota.

She also did not mainta in her headcount.

37. 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 peopl e

on her team. It also cautioned that failure to meet the

requirements would result in " being moved to sales territory. "

38. Ms. Gleason acknowledges that she understood that if

she did not perform to the expected levels that she could be

demoted.

39. 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.

40. Someti me 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.

41. 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. Hine s ' comment s and the

reading requirement were efforts to help Ms. Gleason improve her

performance and management.

42. During the June through October period, Ms. Gleason

yawned during a manager meeting. She maintains that Mr. Hines '

statement about her yawn differe d from the words he spoke to a

male manager who fell asleep in a meeting . The differences , she

argues , demonstrated gender discrimination. The y did not. In

each instance Mr. Hines sarcastically commented on the manager ' s

behavior in front of other emplo yees. He made no gender

references. And the comments were similar.

43. 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 perf ormance.

44. 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 se rved alcohol. Again, there is no evidence that males

were subjected to different requirements or that the requirement

was related to Ms. Gleason ' s gender.

45. During this same period, Ms. Gleason received written

and oral communications fr o m 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.

46. On November 12, 2009, Ms. Gleason sen t 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 .

47. 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

conversat ions that she was being discriminated against or

treated differently because of her gender. Ms. Gleason never

complained about gender discrimination to any Ricoh

r epresentative at any time.

48. On December 1, 2009, Mr. Hines demoted Ms. Gleason

from sa les 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.

49. Mr. Hines has demoted male sales manager s to account

executive positio ns 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 posi tion.

50. 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.

51. 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 he r gender.

52. 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 ab out 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.

5 3 . 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 tha n he had

similarly experienced males.

5 4 . 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 th en 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.

5 5 . On March 31, 2010, Ms. Gleason submitted a memorandum

stating that she was resigning " effective immediately. "

5 6 . 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 ev idence 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.

CONCLUSIONS OF LAW

57. Ms. Gleason advances two claims. First, she mainta ins

that Ricoh discriminated against her on account of her sex by

demoting her. Second, she claims that Ricoh retaliated against

her for complaining of gender discrimination.

58 . Sections 120.569 and 120.57(1), Florida Statutes

(2010) , grant DOAH juris diction over the subject matter of this

proceeding and of the parties.

59 . Section 760.10 (1)(a), Florida Statutes (2009) , makes

it unlawful for an employer to take adverse action against an

individual because of the individual ' s sex. Section 760.10(7)

F lorida Statutes (2009), makes it unlawful for an employer to

discriminate against any person because that person has opposed

an unlawful employment practice.

60 . Section 760.11(7), Florida Statutes (2010), permits a

party who receives a no cause determi nation to request a formal

administrative hearing before the Division of Administrative

Hearings. " If the administrative law judge finds that a

violation of the Florida Civil Rights Act of 1992 has occurred,

he or she shall issue an appropriate recommende d order to the

commission prohibiting the practice and recommending affirmative

relief from the effects of the practice, including back pay. "

Id .

6 1 . The Florida Legislature patterned Chapter 760 after

Title VII of the Civil Rights Act of 1964, as amende d.

Consequently, Florida courts look to federal case law when

interpreting Chapter 760. Valenzuela v GlobeGround North

America, LLC. , 18 So. 3d 17, 20 (Fla. 3 d DCA 2009).

Discrimination Claim

62 . A party may prove unlawful sex discrimination by

direct or circumstantial evidence. Carter v. City of Miami , 870

F.2d 578, 581 (llth Cir. 1989 ) . Direct evidence did not

establish unlawful discrimination in this case .

63 . The evidence established, as set forth in the findings

of fact, that Mr. Hines demoted Ms. Gleason because her

performance was not satisfactory. He considered objective

performance measures. He provided Ms. Gleason verbal and

written notice of her performance deficiencies and the

likelihood of demotion if she did not remedy them. He also

attempted to help Ms. Gleason improve her performance through

oral guidance and profess ional reading recommendations.

Mr. Hines also demonstrated a lack of gender bias by proposing

that Ms. Gleason seek a promotion she had not applied for and

promoting he r over male applicants.

64 . To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If

successful, this creates a presumption of discrimination. Then

th e burden shifts to the employer to offer a legitimate, non -

discriminatory reason for the adverse employment action. If the

employer meets that burden, the presumption disappears and the

employee must prove that the legitimate reasons were a pretext.

Vale nzuela v . GlobeGround North America, LLC . , 18 So. 3d 17, 21

(Fla. 3rd DCA 2009); Wascura v. City of South Miami , 257 F.3d

1238, 1242 (11th Cir. 2001). Facts that are sufficient to

establish a prima facie case must be adequate to permit an

inference of dis crimination. Id .

65 . The record is not sufficient to establish a prima

facie case. Ms. Gleason argues that Mr. Hines treated her

differently than male sales managers. She identifies

differences in staffing and territory composition to support her

arg ument. Nothing establishes that the differences necessarily

or predictably made her job more or less difficult than that of

her male colleagues. In addition , there is no evidence that

identical sales areas or staff compositions were any sort of

reasonabl e industry standard or even possible.

66 . Ms. Gleason argues that Mr. Hines treated her

differently than male managers whose performance was similar.

The facts established by the evidence do not support the

argument. First the facts reveal that Mr. Hine s also demoted

thre e male managers for not meeting the performance

requirements. Second the facts show that Ms. Gleason ' s

performance failings were not similar to those of the male

managers who were not demoted. Both the magnitude of

Ms. Gleason ' s failur es to attain her sales quotas and her

repeated poor performance differ from that of the male managers.

Also , there is no persuasive evidence that any of the male

managers Ms. Gleason identifies as having similar performance

deficiencies failed to achieve and maintain the required

headcount.

Retaliation Claim

67 . Ms. Gleason did not establish that Ricoh retaliated

against her for complaining of gender discrimination. The court

in Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922, 926 (Fla.

5th DCA 2009), described the analysis required for a retaliation

claim. The opinion says:

To establish a prima facie case of

retaliation under section 760.10(7), a

plaintiff must demonstrate: (1) that he or

she engaged in statutorily protected

activity; (2) that he or she suffered

adverse employment action; and (3) that the

adverse employment action was causally

related to the protected activity. See

Harper v. Blockbuster Entm ' t Corp., 139 F.3d

1385 (11th Cir.), cert . denied , 525 U.S.

1000, 119 S. Ct. 509, 142 L. Ed. 2d 422

(1998). Once the plaintiff makes a prima

facie showing, the burden shifts and the

defendant must articulate a legitimate,

nondiscriminatory reason for the adverse

employment action. Wells v. Colorado Dep ' t

of Transp. , 325 F.3d 1205, 1212 (10th Cir .

2003). The plaintiff must then respond by

demonstrating that defendant ' s asserted

reasons for the adverse action are

pretextual. Id .

68 . Ms. Gleason argues that her complaints to Ms. McIntyre

were complaints about sex discrimination and therefore wer e

statutorily protected activity and that she suffered adverse

employment action because of them. The facts found do not

establish a complaint about sex discrimination. Ms. Gleason

complained about Mr. Hines ' management. But she did not claim

in her con versations or e - mails that Mr. Hines was treating her

differently because of her gender. The comments of

Ms. Gleason ' s co - workers even indicate that Mr. Hines was

treating Ms. Gleason as he had treated other employees who were

not meeting performance requ irements. Consequently ,

Ms. Gleason ' s claim fails at the first step of the analysis.

She did not engage in statutorily protected activity.

69 . Ms. Gleason does not argue in her Proposed Recommended

Order that her resignation amounted to a constructive d ischarge.

70 . The facts do not support Ms. Gleason ' s claims of

sexual discrimination and retaliation.

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 1 8 th day of February , 2011 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administr ative 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 1 8 th day of February , 2011 .

COPI ES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Kimberly A. Gilmour, Esq uire

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parti es 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.