14-004046 Jennifer Hatfield vs. Southeast Compounding Pharmacy Status: Closed Recommended Order on Monday, January 5, 2015.

Summary: Evidence is insufficient to establish harassment or retaliation occurred.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER HATFIELD,

Petitioner,

vs. Case No. 14 - 4046

SOUTHEAST COMPOUNDING PHARMACY,

Respondent.

_______________________________/

RECOMMENDED ORDER

On November 4, 2014 , an admini strative hearing in this case

was held by video tele conference in Tampa and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Antonios Poulos, Esquire

Poulos Law Firm

1502 West Busch Boulevard

Tampa, Florida 33612

For Respondent: Christina Harris Schwinn, Esquire

Pavese Law Firm

1833 Hendry Street

Post Office Drawer 1507

Fort Myers, Florida 33901

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent committed

an unlawful employment practice against the Petitioner .

PRELIMINARY STATEMENT

On J anuary 30, 2014 , Jennifer Hatfield (Petitioner) filed a

Complaint of Employment Discrimination with the Florida

Commission on Human Relations (FCHR). The complaint alleged that

the Petitioner had been the subject of sexual harassment and

retaliation as an employee of Southeast Compounding Pharmacy

(Respondent).

O n July 22, 2014, the FCHR issued a " Notice of

Determination: No Cause" stating that there was Ðno reasonable

cause to believe that an unlawful employment practice occurred.Ñ

On August 26, 2014, the Petitioner filed a Petition for

Relief with the FCHR. O n August 27, 2014 , the FCHR forwarded the

Petition to the Division of Administrative Hearings, which

scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on her own beh alf.

The Respondent presented the testimony of five witnesses and had

E xhibits numbered 1 through 5, and 7, 8, and 10 admitted into

evidence.

The T ranscript of the hearing was filed on November 21,

2014 . On December 1, 2014, the Respondent filed a P ropos ed

R ecommended O rder that was reviewed in the preparation of this

order.

FINDING S OF FACT

1. At some time prior to August of 2013, the Petitioner and

Respondent discussed the PetitionerÓs potential employment as a

ÐPharmacy Sales RepresentativeÑ for the Respondent.

2. The Respondent eventually offered such employment to the

Petitioner, the terms of which were set forth in a letter

(hereinafter ÐagreementÑ) from the Respondent (identified therein

as ÐSCP, LLCÑ or ÐcompanyÑ) to the Petitioner.

3. The a greement stated as follows:

Your job title will be Pharmacy Sales

Representative and your duties include all

aspects of sales and marketing to physicians

and patients SCP, LLC can provide for. You

will be responsible for producing leads and

establishing n ew pharmacy sales as well as

maintaining all existing accounts. You will

report to members of SCP, LLC. You may be

assigned other duties as needed and your

duties may also change on reasonable notice,

based on the needs of the company and your

skills, as determined by the company.

4. The agreement provided that the Petitioner would be paid

an annual base salary of $45,000, and a commission Ðbased on the

total sales of compounded products sold to all accounts you are

managing.Ñ The salary was to be paid bi - weekly. The commission

was to be paid quarterly.

5. The agreement stated that the Petitioner would receive

an additional $250 per month for the purposes of obtaining

private health insurance, and that the additional payment would

cease if a company h ealth insurance plan became available to

employees.

6. The agreement stated that the Petitioner would also have

access to an expense account, including a company credit card,

and receive either a car or a paid car allowance from the

Respondent.

7. The ag reement specifically provided as follows:

YOUR EMPLOYMENT WITH THE COMPANY IS AT - WILL.

IN OTHER WORDS, EITHER YOU OR THE COMPANY CAN

TERMINATE YOUR EMPLOYMENT AT ANY TIME FOR ANY

REASON, WITH OR WITHOUT CAUSE AND WITH OR

WITHOUT NOTICE.

8. According to the agreement, the PetitionerÓs employment

was to commence on September 3, 201 3 .

9. Although the Petitioner was dissatisfied with the salary

structure offered by the Respondent and believed that the offer

was below her market value, the Petitioner signed the agreement

on August 1, 2013, and accepted the employment terms set forth

therein.

10. The PetitionerÓs dissatisfaction with her income was a

continuing issue during her employment. The Petitioner

repeatedly requested that her base salary be increased , but the

Respondent was unprofitable and was unwilling to agree to the

PetitionerÓs request.

11. Although the Petitioner initially developed some

marketing materials for the Respondent, the Respondent was not

satisfied with the PetitionerÓs overall job p erformance.

Additionally, there appears to have been disagreement between the

Petitioner and the Respondent as to the responsibilities of her

employment, including continuing friction between the Petitioner

and her supervisor.

12. On several occasions, t he supervisor requested that the

Petitioner come into the office during working hours to meet with

him. The Petitioner apparently believed that her time was better

utilized meeting with prospective clients; however, some of the

prospective clients sought products that, for a variety of

reasons, the Respondent could not supply. In any event, rather

than come into the office as requested by her supervisor, the

Petitioner chose to communicate with him by Ðafter hoursÑ email

or by telephone. The supervisor w as dissatisfied by the

PetitionerÓs failure to comply with his request.

13. At some point in December of 2013, the Respondent

determined that the PetitionerÓs performance was not satisfactory

and that a change needed to occur.

14. The Petitioner was advi sed of the RespondentÓs

dissatisfaction in a meeting on December 5, 2013, between the

Petitioner and a representative of the Respondent.

15. After being advised that some type of change was going

to occur, the Petitioner raised a number of complaints abou t her

supervisor. The Petitioner complained that the supervisor used

profanity, that he had hung up on her during a telephone call,

and that, on one occasion, he had patted her on the head in an

apparently demeaning manner.

16. The Respondent had a writt en Ðzero toleranceÑ policy

prohibiting all forms of harassment, including sexual harassment.

The policy prohibited any form of retaliation against an employee

who complained that he or she was a target of harassment. The

Respondent also had a written Ðop en doorÑ policy that provided a

specific procedure for resolving employment - related disputes.

17. The Petitioner was specifically advised of such

policies during an orientation process that occurred at the

commencement of her employment with the Respond ent.

Additionally, the Petitioner received written copies of all

relevant policies from the RespondentÓs human resource director.

18. There is no evidence that, prior to learning on

December 5 , 2013, that her employment was in jeopardy, the

Petitioner a dvised any representative or employee of the

Respondent that she objected to the supervisorÓs alleged

behavior.

19. After the meeting on December 5, the Petitioner wrote

an email to company officials dated December 17, 2013, wherein

she asserted that she had ÐclosedÑ a number of accounts on behalf

of the Respondent, and suggested that her contribution to the

company was being undervalued. She also requested reevaluation

of her compensation because she believed the commission structure

was inadequate.

20. The Respondent apparently disagreed with the Petitioner

because few actual sales resulted from the PetitionerÓs ÐclosedÑ

accounts. Accordingly, during a meeting with RespondentÓs

representatives on December 20, 2013, the Petitioner was advised

that her e mployment was officially being terminated.

21. Central to the RespondentÓs decision was the lack of

revenue generated by the PetitionerÓs sales and the

unprofitability of the company. The PetitionerÓs failure to

comply with the requests of her supervis or also provided a basis

for her termination from employment.

22. During the meeting on December 20, the Petitioner

restated the complaints she had first addressed during the

meeting on December 5, and raised a number of additional

complaints, including a llegations of harassment or sexual

harassment by her supervisor or another employee.

23. There is no evidence that, prior to learning on

December 20 , 2013, that her employment was being terminated, the

Petitioner had advised any representative or employe e of the

Respondent that she had been harassed in any manner by her

supervisor or by any other employee of the Respondent.

24. The alleged perpetrators of the harassment dispute the

PetitionerÓs assertions.

25. The evidence fails to establish that any of the alleged

acts of harassment or sexual harassment actually occurred.

26. In a memorandum to the Petitioner dated December 20,

2013, the Respondent advised the Petitioner that her termination

package would include salary payments for three weeks (one week

of ÐfinalÑ pay and two weeks of severance pay), additional

payment for 27 hours of accrued paid time off and unused comp

time, and a total commission payment of $31.97.

27. By letter to the Respondent dated December 27, 2013,

the Petitioner restated the alleged harassment referenced herein

and requested that she receive an additional two weeks of

severance pay.

28. The Respondent ultimately paid the Petitioner a total

of four weeks of severance pay.

29. The evidence fails to establish that the termi nation of

the PetitionerÓs employment by the Respondent was related to any

complaint of harassment or sexual harassment, or was retaliatory

in any manner.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla . Stat . (2014) .

31. Chapter 760, Part I, Florida Statutes , sets forth the

Florida Civil Rights Act of 1992 (the "Act") . Section 760.10

provides in relevant part as follows:

(1) It is an u nlawful employment practice

for an employer:

(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, because of such

in dividualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor - management committee, or a labor

organization to discri minate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in an

investigation, proceeding , or hearing under

this section.

32. The Respondent is an ÐemployerÑ as defined in section

760.02(7) .

33. Florida courts have determined that Title VII federal

discrimination law should be used as guidance when applying the

provisions of the Act. Fl a . Dep Ó t of Cmty . Affairs v. Bryant ,

586 So. 2d 1205 (Fla. 1st DCA 1991); Sch . Bd of Leon Cnty . v.

Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981).

34. In order to support a hostile work environment claim

under Title VII based on sexual harassment by a super visor, an

employee must establish the following elements: (1) that he or

she belongs to a protected group; (2) that the employee has been

subject to unwelcome sexual harassment, such as sexual advances,

requests for sexual favors, and other conduct of a s exual nature;

(3) that the harassment must have been based on the sex of the

employee; (4) that the harassment was sufficiently severe or

pervasive to alter the terms and conditions of employment and

create a discriminatorily abusive working environment; a nd (5) a

basis for holding the employer liable. Mendoza v. Borden, Inc. ,

195 F.3d 1238 (11th Cir. 1999).

35. The Petitioner, as a female, is clearly a member of a

protected class . The evidence fails to establish that the

Petitioner was subjected to hara ssment of any type, and

therefore, the PetitionerÓs claims of hostile work environment

and harassment must fail.

36. To establish a prima f acie case of retaliation under

s ection 760.10(7), the Petitioner must demonstrate: (1) that she

engaged in statutor ily pro tected activity; (2) that she suffered

an adverse employment action; and (3) that the adverse employment

action was causally related to the protected activity. Harper v.

Blockbuster Entm't Corp . , 139 F.3d 1385 (11th Cir.), cert .

denied , 525 U.S. 10 00 (1998). Assuming the Petitioner

establishes a prima facie case, the Respondent must then

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). Th e Petitioner must then respond by

demonstrating that Respondent's asserted reasons for the adverse

action are pretextual. Id .

37. In this case, the Petitioner has failed to establish a

prima facie case of retaliation. While the Petitioner's

termination from employment was an adverse employment action, the

evidence establishes that the termination was due to the

PetitionerÓs inability to meet the requirements of her

employment.

38. The Respondent was clearly dissatisfied with the

PetitionerÓs job perform ance and so advised the Petitioner on

December 5, 2013, after which the Petitioner began to complain

about her supervisor. When the Respondent advised the Petitioner

on December 20, 2013, that her employment was officially being

terminated, the Petitioner Ós complaints escalated to include

sexual harassment by her supervisor and another employee.

39. It is not possible to conclude that the Respondent

terminated the PetitionerÓs employment termination in retaliation

for the harassment complaint when the Pe titioner did not complain

about the harassment until the termination occurred. In any

event, the evidence fails to establish that the Petitioner was

subjected to any harassment, including sexual harassment, by her

supervisor or any other employee of the R espondent.

40. Had the Petitioner established a p rima facie case of

retaliation , the Respondent would have been required to

articulate a legitimate, nondiscriminatory reason for the adverse

employment action. At the hearing, the Respondent presented

suff icient evidence to demonstrate that the Respondent was

justified in terminating the Petitioner's employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations ent er a Final Order dismissing the Petitioner's

complaint against the Respondent.

DONE AND ENTERED this 5th day of January , 2015 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Divi sion 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 5th day of Janua ry , 2015 .

COPIES FURNISHED:

Cheyanne Michelle Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Christina Harris Schwinn, Esquire

Pavese Law Firm

1833 Hendry Street

Post Of fice Drawer 1507

Fort Myers, Florida 33901

(eServed)

Antonios Poulos, Esquire

Poulos Law Firm

1502 West Busch Boulevard

Tampa, Florida 33612

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions withi n

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.