12-000113 Rhonda S. Doyle vs. Gm Appliance/Williams Corporation Status: Closed Recommended Order on Monday, June 25, 2012.

Summary: Respondent did not discriminate against Petitioner on the basis of her age. Petitioner's employment discrimination charge should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RHONDA S. DOYLE , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0113

)

GM APPLIANCE/WILLIAMS )

CORPORATION , )

)

Respondent . )

)

RECOMMENDED ORDER

A final hearin g was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on April 25, 2012 , in Panama City ,

Florida.

APPEARANCES

For Petitioner: Robert Christopher Jackson, Esquire

Harr ison Sale McCloy

304 Magnolia Avenue

Post Office Box 1579

Panama City, Florida 32402 - 1579

For Respondent: Daniel Harmon, Esquire

Daniel Harmon, P.A.

23 East 8th Street

Panama City, Florida 32401

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner on the basis of her age in violation of the Florida

Civil Rights Act.

PRELIMINARY STATEMENT

On June 3 , 2011, Petitioner, Rhonda S. Doyle, filed a

Charge of Discrimination with the Florida Commission on Human

Relations (FCHR). Petitioner ' s charge alleged that Respondent,

GM Appliance/Williams Corporation , discriminated against her

because of he r age. Petitioner claimed that GM Appliance had

laid her off from her sales position of 21 years and, later,

failed to rehire her when it hired a new younger salesperson.

FCHR investigated Petitioner ' s c harge.

On November 22, 2011, FCHR issued a " Notice of

Determination: C ause " and determined that after investigating

Petitioner ' s complaints there was sufficient cause to believe

that an unlawful employment practice had occurred. Thereafter,

on December 27, 2011, Petitioner filed a Petition for Relief

pu rsuant to section 760.11(8), Florida Statutes. The petition

was forwarded by FCHR to the Division of Administrative Hearings,

where it was set for hearing.

At the hearing, Petitioner testified on her own behalf ,

presented the testimony of two witnesses , a nd offered two

exhibits into evidence. Respondent presented the testimony of

five witnesses and offered one exhibit into evidence. The

parties offered Joint Exhibits 1 , 2, 4, 6 , 7, 9, 11, 11A,

12 through 14, 17, 18, and 20 , which were admitted into evide nce.

A Transcript was filed on May 25, 2012 . After the hearing,

Petitioner and Respondent filed their proposed findings of fact

and conclusions of law on June 8, 2012 .

References to statutes are to Florida Statutes (20 11 ) unless

otherwise noted.

FIN DING S OF FACT

1. Petitioner is a 56 - year - old female.

2. 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.

3. Petitio ner 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.

4. Petitioner was a good and capable salesperson. She had

never been formally reprim anded 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.

5. In 2004, Williams Corporation, a single shareholder

e ntity 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

ar ea from Atlanta. At the time of the GM Appliance purchase,

Mr. Williams was approximately 40 years old.

6. 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 cre ated and hired a new sales

manager. He opened two offices outside of Panama City.

7. Mr. Williams made all the business decisions at GM

Appliance. As h e was the sole shareholder and owner ,

Mr. Williams had the sole authority to hire and fire employees.

8. Under Mr. Williams, GM Appliance did not have any formal

written employment policies. Respondent ha s no sexual harassment

or anti - discrimination policies and no process on how to handle

employment complaints related to age or sex. GM Appliance ha s 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.

9. 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 ins ide sales

and delivery ; and Amy Farris ( born 1982 ) as inside sales and

administrative.

10. 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.

11. 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

Applianc e ' s younger workforce often called Petitioner " Mama " or

" Old Mama " to her face and behind her back.

12. A s a result of the worldwide economic slowdown, the

business environment deteriorated for GM Appliance in 2008. To

save money, GM Appliance began to c ut back on its operations and

expenses.

13. 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 t wo 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 Da vis, remained

employed with GM Appliance. Ashley Williams and Davis annually

made $45,000 and $80,000 , respectfully .

14. Petitioner, at the final hearing, identified the three

younger employees retained following her termination as evidence

of discrimina tory intent: Margaret Walden, Amy Farris , and Matt

Davis.

15. Matt Davis, aged 46, was the sales manager and

Petitioner ' s immediate supervisor. Petitioner reported directly

to Matt Davis.

16. 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 (manufacture r ' s

incentive program ) administrator.

17. Respondent employed outside sales persons and other

salespersons (retail sales associates) such as Petitioner , who

worked the showroom floor. Outside salespersons reported

directly to Respondent ' s p resident, Mr. Williams. Margaret

Wa lden, 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 maintain ed at the Destin office.

18. All three identified co - workers held position s with

different duties and responsibilities from the position held by

Petitioner. Petitioner was not replaced , and no younger (or

older) s ales a ssociate was retained in a similar position. In

July 2011, Respondent hire d 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.

19. Prior to terminating Petitioner, Responde nt 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, 20 10.

20. Janice Heinze ( aged 66), Jeff Reeder ( aged 54), and

Angus Thomas ( aged 70), all employees at the Pana ma 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 te le phone

there. Kelly Hill , aged 45 , was hired to replace Ms. Walden upon

her subsequent resignation and relocation.

21 . Petitioner and Mr. Tew were laid off with the intent to

rehire. There w ere no performance or other identified issues

with their emplo yment. Mr. Williams stated that he wanted to

bring them back to work.

22 . 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

hig hest 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.

23 . 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.

CONCLUSIONS OF LAW

24 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding . § § 120.569, 120.57(1), and 760.11(4)(b), Fla. Stat.

25 . Section 76 0.10(1)(a), Florida Statutes, states as

follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwis e to

discriminate against any individual with

respect to compensation, terms , conditions,

or privileges of employment, because of such

individual ' s race, color, religion, sex,

national origin, age, handicap, or marital

status.

26. Petitioner is an " aggri eved person, " and Respondent is

an " employer " within the meaning of s ection 760.02(10) and (7),

respectively.

27 . The Florida Civil Rights Act (FCRA), sections 760.01

through 760.11, as amended, was patterned after Title VII of the

Civil Rights Act of 196 4, 42 U.S.C. 2000 et seq . Federal case

law interpreting Title VII is applicable to cases arising under

the FCRA. See Green v. Burger King Corp. , 728 So. 2d 369,

370 - 71 (Fla. 3d DCA 1999); Fla. State Univ. v. Sondel , 685 So. 2d

923 (Fla. 1 st DCA 1996).

2 8 . Petitioner has the burden of proving by a preponderance

of the evidence that Respondent has discriminated against h er .

See Fla. Dep ' t of Transp. v . J.W.C. Co., Inc. , 396 So. 2d 778

(Fla. 1st DCA 1981).

29 . The United States Supreme Court has establis hed an

analytical framework within which courts should examine claims of

discrimination, including claims of age discrimination. In cases

alleging discriminatory treatment, Petitioner has the initial

burden of establishing, by a preponderance of the evide nce, a

prima facie case of discrimination. St. Mary ' s Honor C tr. v.

Hicks , 509 U.S. 502 (1993); Combs v. Plantation Patterns , 106

F.3d 1519 (11th Cir. 1997).

30 . Petitioner can establish a prima facie case of

discrimination in one of three ways: (1) by producing direct

evidence of discriminatory intent; (2) by circumstantial evidence

under the framework set forth in McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973); or (3) by establishing statistical

proof of a pattern of discriminatory conduct. Car ter v. City of

Miami , 870 F.2d 578 (11 th Cir. 1989). If Petitioner cannot

establish all of the elements necessary to prove a prima facie

case, Respondent is entitled to entry of judgment in its favor.

Earley v. Champion Int ' l Corp. , 907 F.2d 1077 (11th C ir. 1990).

31 . To establish a prima facie case of discrimination,

Petitioner must show: (1) that s he is a member of a protected

class; (2) that s he suffered an adverse employment action;

( 3 ) that s he received disparate treatment from other similarly -

situ ated individuals in a non - protected class; and (4 ) that there

is sufficient evidence of bias to infer a causal connection

between h er age or sex and the disparate treatment. Andrade v.

Morse Operations, Inc. , 946 F. Supp. 979 , 982 (M.D. Fla. 1996).

32. " [N]ot every comment concerning a person ' s age presents

direct evidence of discrimination. " Young v. General Foods

Corp. , 840 F.2d 825, 829 (11th Cir. 1988). " [D]irect evidence is

composed of ' only the most blatant remarks, whose intent could be

nothing o ther than to discriminate ' 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). Likewise, a statement " that is

subject to more than one interpretation . . . d oes not constitute

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

1189 ( 11th Cir. 1997).

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

S healy v. City of Albany Ga. , 89 F.3d 804, 806 (11th Cir. 1996).

For this reason, those who claim to be victims of discrimination

" are permitted to establish their cases through inferential and

circumstantial proof. " Kline v. Tenn . Valley Auth . , 128 F.3d

337, 348 (6th Cir. 1997).

34. In McDonnell Douglas , 411 U.S. 792, 80 0 - 8 03 (1973), the

Supreme Court articulated a burden of proof scheme for cases

involving allegations of discrimination under Title VII, where

the plaintiff relies upon circumstantial evid ence. The McDonnell

Douglas decision is persuasive in this case, as is Hicks , 509

U.S. 502, 506 - 07 (1993), in which the Court reiterated and

refined the McDonnell Douglas analysis. Pursuant to this

analysis, the plaintiff (Petitioner herein) has the init ial

burden of establishing by a preponderance of the evidence a prima

facie case of unlawful discrimination. Failure to establish a

prima facie case of discrimination ends the inquiry. See Ratliff

v. State , 666 So. 2d 1008, 1012 n. 6 (Fla. 1st DCA 1996), aff ' d ,

679 So. 2d 1183 (1996) (citing Arnold v. Burger Queen Sys. , 509

So. 2d 958 (Fla. 2d DCA 1987)).

35. If, however, the plaintiff (Petitioner herein) succeeds

in making a prima facie case, then the burden shifts to the

defendant (Respondent herein) to articulate some legitimate,

nondiscriminatory reason for its complained - of conduct. If the

defendant carries this burden of rebutting the plaintiff ' s prima

facie case, then the plaintiff must demonstrate that the

proffered reason was not the true reaso n, but merely a pretext

for discrimination. McDonnell Douglas , 411 U.S. at 802 - 03;

Hicks , 509 U.S. at 506 - 07.

36. In Hicks , the Court stressed that even if the trier - of -

fact were to reject as incredible the reason put forward by the

defendant in justific ation for its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question of whether the defendant intentionally had

discriminated against him. 509 U.S. at 511. " It is not enough,

in other words, to disbelieve the empl oyer; the fact finder must

believe the plaintiff ' s explanation of intentional

discrimination. " Id. at 519.

37. In order to prove intentional discrimination,

Petitioner must prove that Respondent intentionally discriminated

against her. It is not the role of this tribunal to second - guess

Respondent ' s business judgment. As stated by the court in

Chapman v. AI Transp. , 229 F.3d 1012, 103 0 (11th Cir. 2000),

" courts do not sit as a super - personnel department that

reexamines an entity ' s business decisions. No matter how

mistaken the firm ' s managers, the [Civil Rights Act] does not

interfere. Rather, our inquiry is limited to whether the

employer gave an honest explanation of its behavior (citations

omitted). An employer may fire an employee for a good reason , a

bad reason, a reason based on erroneous facts, or for no reason

at all, as long as its action is not for a discriminatory

reason. "

38. At the administrative hearing held in this case,

Petitioner had the burden of proving that she was the victim of a

d iscriminatorily motivated action. See Dep ' t of Banking & Fin.,

Div. of Sec. & Investor Prot. v . Osborne Stern & Co. , 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 evid ence

as to that issue. " ); Fla. Dep ' t of Health & Rehabilitative Servs.

v . Career Serv. Comm ' n , 289 So. 2d 412, 414 (Fla. 4th DCA 1974)

( " The burden of proof is ' on the party asserting the affirmative

of an issue before an administrative tribunal. ' " ).

39. Petitioner made a prima facie showing that due to her

age, 54, she is a member of a protected class, and her

termination qualified as an adverse employment action, but failed

to make a prima facie case that Petitioner received dissimilar

treatment from oth er similarly situated individuals in a non -

protected class and that there was any bias against her.

40. " To show that employees are similarly - situated the

Petitioner must show that the ' employees are similarly - sit uated

in all relevant aspects. '" Knight v . Baptist Hosp. of Miami,

Inc. , 330 F. 3 d 1313, 1316 (11th Cir. 2003) . " The comparator must

be nearly identical to the petitioner, to prevent courts from

second - guessing a reasonable decision by the employer. " Wilson

v. B/E Aero., Inc. , 376 F. 3 d 1079, 109 1 (11th Cir. 2004). In

other words, Petitioner must be " matched with persons having

similar job - related characteristics who were similarly situated "

to Petitioner. MacPherson v. Univ. of Montev a llo , 922 F.2d 766,

775 (11th Cir. 1991).

41. Plainly stated , in order to establish the third element

of the prima facie case, Petitioner must produce evidence that

would permit the trier of fact to conclude that Respondent

treated employees of a different age more favorably than

Petitioner. See Lathem v. Dep ' t of Children & Youth Servs. , 172

F.3d 786, 793 (11th Cir. 1999).

42. Petitioner cannot meet this burden because she has

presented no competent evidence of any similarly - situated

employees outside of her protected class being treated more

favorably. Testimon y by Petitioner establishes without

equivocation there were two sales associates working on the floor

of the Panama City showroom and both sales associates were

terminated. See Lathem , 172 F.3d at 793; see also Holifield v.

Reno , 115 F.3d 1555 (11th Cir. 1997).

43. In Damon v. Fleming Supermarkets of Fla., Inc. , 196

F.3d 1354, 1361 (11th Cir. 1999), the court noted that courts

" are not in the business of adjudging whether employment

decisions are prudent or fair. Instead our sole concern is

whether unlaw ful discriminatory animus motivates a challenged

employment decision. "

44. Based upon the evidence and testimony offered at

hearing, Petitioner failed to establish a prima facie case

against Respondent for age or any other type of discrimination.

Mr. Wil liams, the owner of the business, articulated several

reasons why he made the decisions to terminate Petitioner and

Mr. Tew. Among them were the severe downturn in the economy with

a concurrent drop in sales; the lack of new construction , which

had previo usly been a large generator of appliance sales; the

move to more computer - based orders and sales, skills not

possessed by Petitioner to a high degree; and the hiring of an

employee ( aged 51 and therefore a member of the same protected

class as Petitioner) to work on 100 percent commission sales

without a salary, to name but a few. Accordingly, Respondent

cannot be found to have committed the " unlawful employment

practice " alleged in the employment discrimination charge, which

is the subject of this proceed ing. Therefore, the employment

discrimination charge 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

issue a final order finding Responde nt 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 L aw 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 25t h 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

Ta llahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All 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.