16-004119 Donna Earley vs. Teleflex, Inc. Status: Closed Recommended Order on Thursday, March 2, 2017.

Summary: Petitioner failed to prove age or sex discrimination or unlawful retaliation. Instead, reasonable business decisions were shown to be the cause of termination of Petitioner's employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA EARLEY,

Petitioner,

vs. Case No. 16 - 4119

TELEFLEX, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On November 1, 2016, an evidentiary hearing was con ducted by

video teleconference, with sites in Tampa and Tallahassee,

Florida, before Elizabeth W. McArthur, Administrative Law Judge,

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Steven Edward Hovsepian, Esquire

Barbas, Nunez, Sanders,

Butler and Hovsepian

1802 West Cleveland Street

Tampa, Florida 33606

For Respondent: James W. Seegers, Esquire

Baker & Hostetler, LL P

Suite 2300

200 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent committed

an unlawful employment practice by discriminat ing against

Petitioner because of her sex and/or age, and/or by retaliating

against her for engaging in a protected activity.

PRELIMINARY STATEMENT

In January 2016, Donna Earley (Petitioner) filed with the

Florida Commission on Human Relations (FCHR) a cha rge of

discrimination against her former employer, Teleflex, Inc.

(Respondent or Teleflex), in which she alleged that beginning in

August 2014, she was subjected to unlawful discrimination because

of her sex and age, and unlawful retaliation for engaging i n a

protected activity. FCHR conducted an investigation, after which

it determined there was no reasonable cause to believe that

Respondent committed any unlawful employment practice as charged.

Petitioner timely requested an administrative hearing, and FCHR

referred the case to DOAH to conduct the requested hearing.

The hearing was first scheduled for September 26 and 27,

2016, to be conducted by video teleconference with sites in Tampa

and Tallahassee. PetitionerÓs unopposed motion for continuance

was granted, and the video teleconference hearing was rescheduled

for November 1, 2016. A second day was reserved but not needed.

Prior to the hearing, the parties filed a Joint Pre - Hearing

Stipulation, in which they stipulated to several facts. They

added a nother stipulated fact on the record at the outset of the

hearing. The stipulations are incorporated in the findings

below, to the extent relevant.

At the hearing, Petitioner testified on her own behalf and

called no other witnesses. PetitionerÓs Exhibit s 12 through 19,

33, 51, 54, 58, 59, 61, 65, 66, and 69 were admitted in evidence.

Respondent presented the testimony of John Bowman and Jennifer

Robichaud. RespondentÓs Exhibits 1 through 11, 13 through 28,

and 30 were admitted in evidence.

At the concl usion of the hearing, post - hearing deadlines

were discussed. A transcript was ordered, and the parties

jointly requested that they be afforded 20 days after the filing

of the transcript at DOAH in which to file their proposed

recommended orders (PROs). T heir request was granted.

The two - volume Transcript of the final hearing was not filed

at DOAH until December 14, 2016, apparently having been misfiled

with FCHR, then retrieved and refiled at DOAH after inquiry was

made as to why the transcript was not ye t filed. Thereafter, two

joint motions were filed for brief extensions of the PRO filing

deadline, which were granted. Both parties timely filed their

PROs by the extended deadline, and the PROs have been fully

considered in the preparation of this Recom mended Order.

FINDING S OF FACT

1. Petitioner, a female, is a former employee of

Respondent. At the time her employment with Respondent was

terminated on December 31, 2015, she was 60 years old.

2. Petitioner was a salesperson for Respondent, a company

that sells specialty medical devices to medical providers and

facilities. PetitionerÓs background gave her technical knowledge

regarding the cardiac - related product line, as she had obtained a

certification as a perfusionist in 1978. A perfusionist opera tes

the heart - lung bypass machine during open - heart surgery. By

1985, Petitioner moved into sales and has focused on cardiac

products because of her background.

3. Petitioner began her employment with Arrow, TeleflexÓs

predecessor, as a salesperson for the cardiac unit in August

2003. At some point, Arrow was acquired by Teleflex; the record

is unclear as to exactly when this occurred, but it may have been

sometime in late 2007. Petitioner testified that the product

line has changed over the years, as there used to be artificial

heart - related products , which were her Ð great loves Ñ (R. Exh. 28

at 44), and why she started working there, but the company got

rid of those programs. Under Teleflex, the main big - ticket piece

of capital equipment sold by sales persons in the cardiac unit is

the intra - aortic balloon pump. In addition, s a lespersons sell

disposable products , such as catheters and cannulas used with the

pump , in cardiac surgeries , and cath eterization lab procedures.

4. The organization and composi tion of the cardiac unitÓs

sales territories and the salespersons assigned to them were

subject to change and did change throughout PetitionerÓs time

with Arrow and then Teleflex. Likewise, the organization and

composition of sales divisions/regions and t he managers assigned

to be in charge of them were subject to change and did change

throughout PetitionerÓs employment. Sales divisions and sales

territories within divisions were created, combined, split up,

and reconfigured, and both salespersons and man agers were added,

eliminated, and reassigned.

5. Petitioner attempted to recount the history of changes

in sales territories that affected her during her years at Arrow

and then Teleflex. 1/ When Petitioner started in 2003, her sales

territory was most of the state of Florida up to Tallahassee, and

all of the cardiac unitÓs sales representatives were under the

supervision of a single manager.

6. At some point, separate sales divisions were created ,

and a new manager was assigned to supervise Petitioner an d others

in her division. At another point, when a sales associate was

let go, PetitionerÓs sales territory was expanded to add the

Florida panhandle and part of Alabama (to Mobile).

7. At another point, separate sales territories were

combined, and the sales associate who covered sales in Georgia

and Alabama was let go. At the request of her new manager,

Petitioner helped train a new sales associate to cover Georgia

and Alabama.

8. Petitioner was successful in sales for Arrow, and

received several hono rs and awards for her achievements. At the

end of her first year of employment in 2004, she was honored as

Ðrookie of the year.Ñ She received the chairmanÓs club award

twice, in 2005 and 2007, for ranking in the top 10 percent of

sales company - wide. Fin ally, she received the circle of

excellence award in 2007, for having achieved her sales quota

numbers three years in a row.

9. Petitioner was promoted to executive sales

representative, although she cannot remember exactly when that

was. Her sales role was not changed, but she got a pay increase

and some increased duties in the area of training new sales

associates.

10. When Teleflex acquired Arrow, the sales associate

trained by Petitioner for the Georgia - Alabama sales territory was

let go. Both Georg ia and Alabama were added to PetitionerÓs

territory. From her home base in Florida (she lived in Spring

Hill ), she covered the three - state sales territory of Florida,

Georgia, and Alabama.

11. Another change affecting Petitioner occurred when the

state o f Georgia was reassigned to a salesman in North Carolina

and PetitionerÓs territory was reduced to Alabama and Florida.

Later, that salesman was promoted to manager for the eastern

division, and Georgia was added back to PetitionerÓs sales

territory. It is unknown when these changes occurred, but from

that point until early 2014, PetitionerÓs sales territory

remained the three - state area of Florida, Georgia, and Alabama.

12. Somewhere along the line, Petitioner experienced

another changeover in manage m ent , with Christine Mazurk assuming

the position of eastern regional manager. Ms. Mazurk supervised

Petitioner from approximately 2010 to 2013.

13. Petitioner was evaluated annually using a standardized

format called the performance management process (P MP). The most

heavily weighted area in the PMP is the annual formulation of

business objectives and target goals, expressed in terms of sales

revenue dollars by product line. In addition to business

objectives, other categories evaluated include competen cies and

development. The objectives and target goals are established

annually in the first quarter of the calendar year . The process

begins with the employee who creates and submits the objectives

and goals to his or her manager, who must accept them. At the

end of the year, the employee performs a self - evaluation, rating

each category as 1 (does not meet), 2 (partially meets),

3 (fully meets), or 4 (exceeds), while the manager similarly

rates the employee in each category. The managerÓs ratings are

u sed to calculate an overall Ðfinal rating.Ñ The final rating

scale is as follows: between 1 and 1.4 means Ðdoes not meetÑ;

between 1.5 and 2.4 means Ðpartially meetsÑ; between 2.5 and 3.4

means Ðfully meetsÑ; and between 3.5 and 4 means Ðexceeds.Ñ

14. I n 2011, Petitioner rated herself at 2 for business

objectives, which she believed were partially met. She rated her

overall performance at 3.0. In contrast, from her managerÓs

perspective, Petitioner did not meet her business (sales revenue)

objectives, achieving only 73 percent of her revenue target for

2011. The manager gave Petitioner the lowest rating of 1 in

business objectives, and an overall final rating of 2.4,

partially meeting performance expectations. Petitioner added the

comment in her PMP t hat the economy really hurt sales in 2011.

15. PetitionerÓs performance was worse in 2012, according

to the PMP that she and her manager, Ms. Mazurk, completed. Once

again, PetitionerÓs self - evaluation was higher than her

managerÓs. PetitionerÓs overall rating for herself was 2.9, but

her managerÓs overall rating and the final rating on her PMP was

2.0, a little lower than in the prior year in the range of only

partially meeting her performance expectations. In this PMP,

Petitioner offered the following comment: ÐReally feel the

baseline numbers were off.Ñ

16. At some point in 2012, a business profile of Petitioner

was prepared. Although the source of this profile was not

entirely clear, Petitioner said that she thought it had been

prepared by her man ager (who, at the time, was Ms. Mazurk) in

connection with a promotion that Petitioner was seeking. The

profile reported that Petitioner had been employed at the company

for nine years, and gave her sales performance in relation to her

target goals for 20 08 through 2011. The profile also identified

PetitionerÓs Ðdevelopmental needsÑ in the following three areas:

• Communication skills (email and verbal

with support team)

• Emotions run high

• Sales Training

Petitioner did not receive the promotion, and conti nued as an

executive sales representative in the sales territory of Florida,

Alabama, and Georgia, under Ms. MazurkÓs management.

17. In 2013, PetitionerÓs PMP was not completed, apparently

because Petitioner was out for two weeks with an injury, and then

later in the year was out for two months for a surgical procedure

and recovery. In the nine and one - half months that she work ed

(almost 80 percent of the year), she reportedly achieved sales

revenues of 54 percent of her target revenue goal for that year .

18. A reorganization at the end of 2013 resulted in a new

manager for Petitioner, James Phillips. Mr. Phillips was the

manager for the western North America sales region, but served

temporarily as PetitionerÓs manager, from January to May 2014,

while t he company was looking to bring in someone new to manage

the eastern region.

19. Mr. Phillips met with Petitioner in the beginning of

2014 to inform her of another realignment of sales territories,

which would go into effect in March 2014. Insofar as the changes

affected Petitioner, a new sales territory was being created,

called the Ðsouth FloridaÑ territory, and the companyÓs plan was

to hire a new salesperson for the new territory. More

accurately, the newly created sales territory covered more than

j ust south Florida; it included all of the east coast from

Jacksonville south, the west coast up to Tampa - S ain t Petersburg,

and part of central Florida, including Orlando. At the same

time, the state of South Carolina would be added to PetitionerÓs

reconfi gured sales territory.

20. The impetus for creating the new south Florida

territory was evidence showing that this highly populated market

had been underpenetrated. In other words, Petitioner, who had

been the areaÓs sole sales representative for more th an 10 years,

was not accomplishing the level of sales expected for this

market. Accordingly, the business judgment was that splitting up

the state and assigning the underpenetrated south Florida market

to a new salesperson would promote increased market p enetration

by making that market the sole focus of the new salesperson. 2/

21. Petitioner disagreed with splitting the state into two

territories, but said that she could understand why the company

wanted to create a new south Florida sales territory; as s he

stated, that market is very different from north Florida.

However, solely from the perspective of the lost sales

opportunities for herself, she voiced her disagreement with the

line - drawing for the new territory. In a letter she sent to her

new manage r , as well as to three members of upper management, she

requested that management reconsider how to split the territory

within the state of Florida, and asked that she be allowed to

retain the Orlando market. PetitionerÓs letter also reported

that she was Ðvery excitedÑ about the addition of South Carolina

to her sales territory.

22. PetitionerÓs letter did not result in a reconsideration

of the March 2014 territory realignment. Therefore, beginning in

March 2014, PetitionerÓs sales territory include d the Florida

west coast, central Florida north of Tampa/St. Petersburg from

Ocala north to the state line, and the Florida panhandle, plus

all of the states of Alabama, Georgia, and South Carolina.

23. When the decision was made to create a new south

Fl orida territory, a specific salesperson had not been identified

for that new territory. Petitioner claims that she asked to be

assigned to the new territory, but was refused. No evidence was

presented to substantiate her claim; instead, the letter she

wr ote to her superiors about the realignment only asked that the

territories be redrawn so that she could retain the Orlando

market, while expressing her enthusiasm about acquiring the state

of South Carolina.

24. In May 2014, John Bowman was brought on bo ard for the

position of eastern regional manager, covering eastern United

States and Canada. He was hired by the president of the company

because the eastern region was underperforming. Mr. Bowman was

charged with improving the business performance of th e sales team

so that sales would reach and sustain expected goals, which

Mr. Bowman said is his forte.

25. Mr. Bowman is very direct with the sales

representatives under his charge. He is results - oriented and

does not mince words when it comes to identi fying deficient

performance and making corrective ÐsuggestionsÑ that may sound

more like demands. Thereafter, if he observes a continuation of

the performance deficiency he has tried to correct, he is quick

to point that out. That is his management style , and why he

be lieves he has been effective in achieving results: ÐIn sales

youÓre constantly measured by your results. YouÓre paid on your

results. YouÓre measured on your results. YouÓre ranked on your

results. I am as well and so is my president. And I make that

very clear with sale individuals and always have.Ñ (Tr. 138).

26. As part of the management transition, Mr. Phillips

provided Mr. Bowman with his assessment of Petitioner as a

salesperson. Mr. Phillips had not served as PetitionerÓs man ager

long enough to conduct a formal year - end PMP evaluation, and so

the assessment was characterized as a Ðpersonal assessmentÑ and

was not placed in PetitionerÓs personnel file. 3/ While both

positive and negative qualities were described in the assessme nt,

there was more bad than good; however, Mr. Bowman set the

assessment aside so that he could form his own opinions. He

considered the points raised by Mr. Phillips as simply

identifying some issues that he should look out for.

27. Mr. Bowman was not based in the same city or even the

same state as Petitioner. He did not meet with her until after

he had been employed as her manager for just over one month. As

Petitioner acknowledged, he had much ground to cover, as his

region included all of North Am erica east of the Mississippi from

Florida up into Canada, and as she put it, Ðhe tried to be fair

with everyone.Ñ (Tr. 100).

28. Before Mr. Bowman ever met Petitioner, he fielded

complaints from two different customers who called the Teleflex

toll - free number to track down PetitionerÓs manager. Both

complaints were perceived by Mr. Bowman to be communication

problems, i.e., the issues would not have arisen if Petitioner

had communicated better with the customers. One of the customers

complained to Mr. Bowman that Petitioner was Ðuseless in giving

us the information we needed.Ñ (R. Exh. 10). PetitionerÓs

attempted explanation of the two incidents tended to lend

credence to Mr. BowmanÓs assessment and the customerÓs comment.

Ultimately, she sought to minimize their significance by

characterizing them as only two isolated incidents during her

long tenure. However, from Mr. BowmanÓs perspective, these were

two customer complaints that he had to field in his first month

as PetitionerÓs manager , unlike wh at he faced with any other

sales representative there .

29. When Mr. Bowman met with Petitioner on July 1, 2014, he

talked with her generally about her background and abilities,

which he complimented, and he addressed the concerns he had from

the two cust omer complaints. He also identified two other areas

where he thought her performance required improvement. In an

email sent the following week, he summarized their discussion

(including the compliments) and the three areas where he wanted

to see her impr ove. These were: her interaction and

communication with customers, evidenced by the two recent

incidents requiring him to intercede; her communications with

internal Teleflex personnel, where her failure to provide c lear,

complete, and precise informatio n resulted in Ðelongated email

stringsÑ and confusion; and her too - frequent requests to him for

low pricing approval.

30. Petitioner was taken aback by these criticisms, which

she took as demeaning and condescending, because she viewed

herself as a prove n performer who was highly respected. She did

not react well to the email summary of these points, which she

viewed as a paper trail intended to bring her down. 4/

Nonetheless, Mr. BowmanÓs points were shown to be valid, and,

indeed, consistent with simil ar comments made by prior managers,

including the manager who noted in PetitionerÓs profile in 2012

that Petitioner needed to work on her verbal and e - mail

communicatio n skills.

31. Mr. Bowman was clear in his meeting with Petitioner, in

the e - mail summa ry of that meeting, in subsequent discussions,

and in his testimony at hearing that he fully expected Petitioner

to learn from his constructive criticisms and improve her

performance. Moreover, he did not view her performance

deficiencies as extreme enoug h to warrant formal action, such as

placing her on a performance improvement plan. Instead, he

quickly and consistently pointed out to Petitioner each time he

saw a continuation of the behavior he had criticized, and he

repeated the criticism while noting that he was repeating prior

criticism, as was his way.

32. Mr. Bowman testified credibly that he treated all of

the sales representatives under his charge the same way, and was

consistent in the way he communicated both positive capabilities

and perform ance issues requiring improvement. Petitioner offered

no evidence to prove that Mr. Bowman treated her any differently

from the way he treated other sales representatives.

33. One of Mr. BowmanÓs first tasks as the new eastern

region manager was to part icipate in interviews for a new

salesperson to be assigned to the new south Florida territory.

After interviews by Mr. Bowman, the president of the company, the

director of finance, the director of marketing, and another

manager, and after a third - party p sychological exam, Eric Patton

was hired in August 2014 as a sales representative for the new

south Florida territory. At the time he was hired, he was

approximately 34 years old.

34. Although the territory changes went into effect in

March 2014, Petiti oner continued to cover sales in the new south

Florida territory, for which she was compensated, until

September 2014 when Mr. Patton assumed coverage of the territory.

35. Petitioner was asked to provide Mr. Patton with

information on her contacts in th e new territory, and she did so.

Petitioner also spent several hours with Mr. Patton at her home

to demonstrate how she made her sales pitches, and she also gave

him a script. Thereafter, she took a couple of day trips with

him to introduce him to some c ustomer contact persons in his new

territory. These were meet - and - greet sessions only, not extended

visits involving actual sales presentations.

36. PetitionerÓs view is that it was not fair that she lost

the pipeline of sales opportunities in the south Florida

territory to Mr. Patton. When it came to losing this, or any,

sales territory, Petitioner complained that she was losing out on

the ÐpipelineÑ of sales opportunities that she had cultivated but

not yet closed. However, when Petitioner gained sal es territory,

she complained about the disadvantage of starting out from

scratch in a new area. Neither viewpoint appears to comport with

the reality that every time sales territories are changed, the

new salesperson has some head start by virtue of the w ork of the

predecessor salesperson. But there was no basis shown for

PetitionerÓs sense of ÐentitlementÑ to the benefits of a sales

territory after the territory i s assigned to someone else . That

is particularly true here, where Petitioner did not refute the

legitimate business purpose of an underpenetrated market that led

to the territory reconfiguration. The company compensation

system for sales representatives was based on revenue recognized

from sales, not on unrealized ÐpipelinesÑ for future busines s.

37. Petitioner claimed that in one instance, she believes

that Mr. Patton was treated more favorably than her while they

were both working in sales in their respective territories.

Petitioner and several other salespersons (both male and female)

had closed some pump sales with contingency clauses written in

the contracts whereby the customer would be allowed to return the

pump and upgrade to a new model at no additional cost if a new

model became available within 18 months after the sale. The

company determined that under federal law, the revenue from those

sales could not be recognized, but rather, had to be held in

escrow until the contingency period had pa ssed. Since sales

commissions we re paid on the basis of sales revenue recognized by

the compa ny, sales commissions were deferred as well.

38. Mr. Bowman explained credibly that these deferred

compensation sales had been allowed under a policy in place

before he was employed, but that PetitionerÓs deferred sale was

the last of several allowed bef ore the policy was discontinued.

39. Petitioner testified that Mr. Patton told her that one

year after her deferred compensation sale, he made a sale in

which he was allowed to offer verbal, but not written, assurance

that an upgrade to a new model would be allowed, and his

commission was paid on the sale. However, Petitioner offered no

non - hearsay evidence to substantiate her description of what she

was told , and her description was refuted by Mr. BowmanÓs

credible testimony . In an y event, PetitionerÓs unsupported

description did not establish two sales that would be considered

the same so as to require the same treatment regarding payment of

commissions. No finding can be made that Mr. Patton was treated

more favorably than Petitioner in this regard, as claimed.

40 . Petitioner and Mr. Bowman completed PetitionerÓs PMP

evaluation for calendar year 2014. The evaluation was similar to

those for Petitioner in 2011 and 2012. Petitioner rated her

performance either the same or more favorably than her man ager

did, with the result that her overall final rating was 2.2,

compared with her self - evaluation of 2.4.

4 1 . In mid - 2015, the company lost a large contract with

HPG, which is a large group purchasing organization (GPO) --

probably the largest in the coun try , according to Petitioner.

Instead of contracting again with Teleflex, HPG entered into a

sole source contract with Teleflex Ós competitor. As Petitioner

acknowledged, the recent advent of GPOs had dramatically changed

the sales business, because the G POs control access to potential

purchasers. Purchasers using the GPOs are no longer free game

for salespersons to explore new sales opportunities. For

Teleflex, this meant that as of mid - 2015, its salespersons could

not solicit new sales from potential p urchasers using HPG,

because HPG would direct those purchasers to TeleflexÓs

competitor pursuant to the new sole source contract. As

Petitioner acknowledged, the loss of the HPG contract was a

substantial loss for Respondent, with the significant impact

c oming in the loss of growth opportunity to develop new business.

4 2 . In June 2015, the president of the company raised the

possibility of a reorganization to consolidate the north Florida

and south Florida territories, in light of the loss of the HPG

con tract. Mr. Bowman began discussions with senior management

about possible changes to the sales territories.

4 3 . In late September 2015, Mr. Bowman provided senior

management with a Power Point presentation that set forth a

proposed reorganization of the southeast . His proposal was to

reconfigure the two existing territories, to create a single

Florida territory and a separate ÐTidewaterÑ territory covering

Alabama, Georgia, and South Carolina. As he proposed the

reorganization, the two sales representa tives -- Petitioner and

Eric Patton -- would cover the two reorganized territories.

4 4 . Meanwhile, Mr. Bowman continued to critique

PetitionerÓs performance in some fairly strident emails and

conversations. In an incident on September 30, 2015, Petitioner

s ubmitted a quote request for a new pump for one Baycare

hospital, while another Baycare hospital was also considering a

new pump. According to Petitioner, the issue was not the price

to quote for the new pumps, as she stated that the price had been

set an d was Ðalready on a contract.Ñ (R. Exh. 28 at 154).

Instead, Petitioner said that the issue was whether the hospitals

would get a credit for the cost of unusual repairs being made to

their existing pumps. In contrast, according to Mr. Bowman, the

company had already agreed that the repair costs would be applied

to the purchase price , but the issue was what price should be

quoted for the new pump, which he said had not been set by any

contract. Mr. Bowman found the price requested by Petitioner to

be too low, and instead of approving her price request, he sent

her an email at 5:35 p.m. on September 30, 2015, questioning her

price approval request , while noting the same price would have to

be given to both Baycare hospitals. He ended the email as

follows: ÐCall me tomorrow to discuss.Ñ (R. Exh. 14 at 1).

4 5 . Instead of acknowledging Mr. BowmanÓs email and waiting

to talk to him first, Petitioner sent an email to the customer ,

with a copy to Mr. Bowman, the next morning. The email

apo logized for Ðnot ge tting you the outright purchase quote

yesterday,Ñ explain ing that the delay was because Ð[t]he outright

quote required management approval[.]Ñ (R. Exh. 14 at 2).

4 6 . After reading his copy of the email, Mr. Bowman called

Petitioner and reacted harshly , telling Petitioner that she threw

him under the bus by sending the email to the customer without

discussing it with him first, and that she had committed a fire -

able offense. While harsh, Mr. BowmanÓs reaction was not off -

base. PetitionerÓs email tends to undermine her testimony that

the issue was not the purchase price which she claimed was fixed

by contract. And while Petitioner testified that she tried to

call Mr. Bowman that afternoon or evening before she sent the

email the next morning, Petitione r did not mention the email from

Mr. Bowman. Surely , when waiting to hear from her manager, she

would have read his incoming email be fore sending the emai l to

the customer. Petitioner failed to explain why she did not

follow her managerÓs i nstruction to discuss the matter with him. 5/

4 7 . Following their telephone conversation, Petitioner

called the human re sources department and spoke with the manager,

Jennifer Robichaud, to complain about Mr. Bowman. The essence of

her complaint was that at 60 years old and close to retirement,

she felt that Mr. Bowman was gunning for her and trying to push

her out. 6/ She complained about the March 2014 territory

realignment, which she though was unfair because a large part of

her territory was given to the new sale s representative, Ða young

guy.Ñ She told Ms. Robichaud that she has always been a top

performer, and although she recently had not been closing sales

on pumps, that was because she was start ing from scratch in a new

territory. She said that until Mr. Bo wman came on board, she

never had any issues with her past managers. Although she

acknowledged that she and Mr. Bowman have very different styles,

she felt that Mr. Bowman did not accept her for who she is.

4 8 . Ms. Robichaud assured Petitioner she would investigate.

They spoke on a Thursday; Ms. Robichaud was able to discuss the

matter with Mr. Bowman the following Tuesday, October 6, 2015.

She relayed PetitionerÓs complaints that she felt that Mr. Bowman

was trying to push her out, and her feeling tha t it was unfair to

give her pipeline to Mr. Patton.

4 9 . Mr. Bowman denied that he was trying to push Petitioner

out of the company, and said, instead, he wants her to succeed.

With regard to her perception about pipeline fairness, Mr. Bowman

responded t hat all sales representatives are expected to have a

pipeline of business opportunities, but that it is closing the

business that matters. In the days thereafter, he sent

Ms. Robichaud information pertinent to the investigation,

including email communica tions with Petitioner, the assessment

from PetitionerÓs prior manager, and information about the

customer complaints. Ms. Robichaud also investigated

PetitionerÓs annual PMP ratings and her performance through

September 2015. She also sought and later re ceived the data

supporting the decision to realign the Florida territory in 2014.

50 . As before, Mr. Bowman continued his practice of

addressing PetitionerÓs performance on issues that had previously

surfaced, which he had previously addressed with Pet itioner.

Thus, on October 9, 2015, Mr. Bowman criticized Petitioner for

her email communications with customer service in which she asked

for free replacements of medical supplies to be sent to her home

for a customer, without giving sufficient informatio n. The

response from the customer service representative stat ed he was

Ða bit confusedÑ by the request, and asked for more information :

ÐDonna, your input is appreciated here.Ñ The representative had

to ask questions to get the information necessary t o handl e the

request appropriately, such as whether the supplies were being

provided for free to respond to a complaint. Mr. BowmanÓs

criticism was that PetitionerÓs email request to customer service

was Ðan example of a lack of professionalism and clarity in your

communications. I have addressed this issue with you multiple

times over the past year and unfortunately, you have not

demonstrated improvement.Ñ (R. Exh. 15).

5 1 . On Monday, October 12, 2015, Petitioner forwarded

Mr. BowmanÓs email criticism t o Ms. Robichaud and asked her to

call. They spoke Tuesday morning. Ms. Robichaud told Petitioner

that she had been looking into PetitionerÓs concerns and had

spoken with Mr. Bowman. Ms. Robichaud told Petitioner that

Mr. Bowman was not trying to push P etitioner out of the company,

but was looking for performance results, and Ms. Robichaud did

not find any reason to believe Petitioner was being treated

unfairly. Ms. Robichaud said that Petitioner and Mr. Bowman

needed to talk, because in Ms. RobichaudÓs opinion, the problem

appeared to be a clash of styles, which is not uncommon with a

change in managers, and that they needed to learn to adapt.

5 2 . Ms. Robichaud talked to Mr. Bowman afterwards. She

encouraged him to reach out to Petitioner, hear her c oncerns, and

try to understand her perspective. She reminded him that he has

acknowledged that he is very direct, and Ðperhaps a few small

changes in how he communicates with her can have a positive

impact.Ñ (R. Exh. 18 at 2).

5 3 . Mr. Bowman contacted Petitioner, and they agreed to

meet in person. The meeting took place on October 16, 2015, in

Tampa. Before the meeting, Petitioner requested a copy of her

personnel file from Ms. Robichaud.

5 4 . Petitioner testified that at the meeting, Mr. Bowman

was very civil and respectful to her. He said that he thrives on

diversity and enjoys the challenge of working with different

kinds of people. He assured her that any decisions that are made

are always going to be about performance.

5 5 . Petitioner reacted curiously to this: she testified

that she realized that nothing was going to change, while

admitting that Mr. Bowman was acting completely differently than

he had before. Petitioner said that he was Ðextremely scripted,Ñ

and probably had been coached on what to say by the human

resources manager. Yet she also complained, inconsistently, that

the human resources department did nothing to help her or to

facilitate a meeting with Mr. Bowman.

5 6 . According to Mr. Bowman, Petitioner said that she did

not th ink she would be able to meet the objectives set for her.

According to Petitioner, she said that he should just stop (being

civil to her), that she knew what he was doing , and knew that he

wanted her to go away. Regardless of which lead - in is accurate,

P etitioner went on to offer that she would resign her employment

at the end of the year if the company paid her the deferred

commissions, and her salary and benefits for six months.

Mr. Bowman was genuinely surprised by PetitionerÓs offer.

5 7 . Shortly a fter Mr. BowmanÓs meeting with Petitioner,

Mr. Bowman was informed by his superiors that his proposal to

retain but reconfigure two sales territories with two sales

representatives in the southeast had been reviewed, but w as

rejected because it would not be a viable solution to address the

loss of the HPG contract . Instead, the decision was made to

consolidate the southeastern states -- Florida, Georgia, Alabama,

and South Carolina -- into a single sales territory, covered by one

salesperson. Mr. Bowman was told to extract metrics for the time

period that Petitioner and Mr. Patton were both working sales in

their respective territories, including their recognized sales

revenues compared to their quotas, pump sales, and 2014 PMP

rating. He was also told to ad d non - metric qualitative

considerations regarding any business practice and customer

interaction issues.

5 8 . Mr. Bowman pulled the data, and o n October 23, 2015, he

provided his superiors with his performance comparison of

Mr. Patton and Petitioner. Fo r the period of September through

December 2014 , Mr. PattonÓs first quarter with the company, the

quantitative metrics were mixed . Mr. PattonÓs overall PMP

performance rating of 2.7 was better, falling within the Ðfully

meets expectationsÑ range, whereas PetitionerÓs overall rating of

2.2 only partially met her performance expectations. Mr. Patton

sold one balloon pump during his first few months with the

company. Petitioner was credited with zero sales of balloon

pumps during this time, although she not ed that she had at least

one deferred sale that was not counted during this time.

Petitioner achieved 104 percent of her overall sales quota from

September to December 2014, although the revenue recognized was

from disposables and not pump sales. Mr. Pat ton achieved

73 percent of his sales quota in his first few months with the

company , but that included recognized revenue from a pump sale .

5 9 . For the first three quarters of 2015 (Mr. Bowman was

able to extract data through the end of September 2015) , t he

quantitative metrics were decidedly in Mr. PattonÓs favor.

During this period, Petitioner had zero pump sales, while

Mr. Patton had seven pump sales, and Petitioner achieved

83 percent of her sales quota through sales of disposables,

whereas Mr. Patt on achieved 112 percent of his sales quota ,

largely from pump sales .

60 . On the qualitative considerations, Mr. Bowman

summarized the issues he had been addressing with Petitioner in

an attempt to bring about improvements, including communication

issues with customers and internal personnel, as well as his

concerns about her frequent requests for low pricing approval .

He also noted a recent situation where Petitioner lost a pump

sale to a hospital in Alabama. When he had asked Petitioner why

she thought she did not get the sale, she explained to Mr. Bowman

that the chief of perfusion Ðmay have felt I was too aggressive , Ñ

that Pe titioner Ðfelt there was tension between he and I , Ñ and

Ðobviously something happened here.Ñ (R. Exh. 22, last page ).

Pe tition er acknowledged in her deposition that what Mr. Bowman

said was true, but that the tension was due to extenuating

circumstances.

6 1 . In contrast, for Mr. Patton, Mr. Bowman reported no

issues of concern in just over one year of managing him. As

Mr. Bow man testified at hearing, Mr. Patton was an excellent

sales representative and Mr. Bowman found no performance

deficiency issues to address with him. Petitioner offered no

evidence to the contrary, stating that she had no knowledge of

Mr. PattonÓs perform ance or the quality of his salesmanship.

6 2 . Based on the performance comparison, Mr. Bowman

recommended that Mr. Patton should be retained as the salesperson

to cover the consolidated southeastern sales territory.

Mr. BowmanÓs recommendation was reasona ble.

6 3 . Mr. BowmanÓs recommendation was accepted and the

decision made by senior management was to retain Mr. Patton as

the salesperson for the consolidated sales territory and to

terminate PetitionerÓs employment due to elimination of her sales

positio n.

6 4 . Petitioner presented no evidence to refute the

reasonableness of RespondentÓs business judgment to consolidate

sales territories and reduce one sales position after the loss of

the HPG contract. Instead, Petitioner only pointed to the

suspicious timing of the decision in relation to her complaint to

the human resources department about Mr. Bowman. 7/

6 5 . Petitioner does not contend that anyone other than

Mr. Bowman himself discriminated against her or retaliated

against her. The evidence does n ot support PetitionerÓs claim

that Mr. Bowman discriminated against Petitioner on the basis of

her age or her sex, nor does the evidence support PetitionerÓs

claim that Mr. Bowman retaliated against Petitioner because she

complained about him to the human resources department.

6 6 . Instead, the evidence established that when

RespondentÓs diminished business growth prospects caused it to

make the reasonable business decision to reduce its sales

positions in the southeast states, Petitioner lost out in a fai r

comparison on the merits of her performance compared to the other

salespersonÓs performance.

6 7 . PetitionerÓs flagging job performance evident from 2011

forward, while not bad enough to warrant immediate action to

terminate her, was not good enough to withstand comparative

assessment with Mr. Patton. PetitionerÓs view that the choice to

retain Mr. Patton must have been a pretext for discrimination or

retaliation is in keeping with PetitionerÓs inflated view of her

own performance. At the same time, Pe titionerÓs view is also an

unfair discredit to Mr. Patton, when the unrebutted evidence was

that he was an excellent sales representative. Petitioner

admitted that she knows nothing about the quality of his sales

work or the quantitative achievements he g arnered in just over

one year with the company.

6 8 . Although findings on the subject of damages are

unnecessary in light of the above findings, even if Respondent

had been found guilty of unlawful employment practices, the

undersigned would have to find t hat Petitioner failed to prove

her actual economic damages that would have been caused by those

employment practices. Petitioner did not present proof of her

earnings, and offered only limited evidence of her attempts to

mitigate damages with other income and efforts to look for a

comparable job. Indeed, in PetitionerÓs PRO, this shortcoming

appears to be admitted because Petitioner request ed an

opportunity to submit support for damages. PetitionerÓs

opportunity to present evidence to support her case wa s at the

final hearing before the evidentiary record closed. There was no

request for a bifurcated hearing to address l iability, followed

by a separate evidentiary hearing on damages if needed . Thus,

Petitioner had her opportunity, and failed to prove da mages.

CONCLUSIONS OF LAW

6 9 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding, pursuant to sections 120.569, 120.57(1), and

760.11(7), Florida Statutes (2016). 8/

70 . Section 760.10(1) pr ovides that it is an unlawful

employment practice for an employer to discriminate against an

employee Ðbecause ofÑ the employeeÓs age or sex, or because the

employee has opposed a practice which is an unlawful employment

practice under the Florida Civil Ri ghts Act ( FCRA ) .

7 1 . Respondent is an "employer" within the meaning of the

FCRA. § 760.02(7), Fla. Stat.

7 2 . FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing the

FCRA. See Valenzuela v . GlobeGround N. Am., LLC , 18 So. 3d 17,

21 (Fla. 3d DCA 2009); Brand v. Fla. Power Corp. , 633 So. 2d 504,

509 (Fla. 1st DCA 1994).

Claim of Age and Sex Discrimination

7 3 . Petitioner offered no direct evidence to prove that she

was terminated because of her age or sex. Accordingly, in the

absence of any direct evidence of discrimination, a finding of

discrimination, if any, must be based on circumstantial evidence.

7 4 . The shifting burden analysis established by the U.S.

Supreme Court in McDonnell Doug las Corp. v. Green , 411 U.S. 792

(1973), and Texas Department of Community Affairs v. Burdine ,

450 U.S. 248 (1981), applies to this circumstantial evidence -

based discrimination claim. Under this well - established model of

proof, the complainant bears the i nitial burden of establishing a

prima facie case of discrimination.

7 5 . If Petitioner establishes a prima facie case, the

burden shifts to the employer to articulate a legitimate, non -

discriminatory explanation for the employment action. See Dep't

of Cor r. v. Chandler , 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991)

(discussing shifting burdens of proof in discrimination cases

under McDonnell and Burdine ). The employer has the burden of

production, not persuasion, and need only articulate a non -

discriminatory reason for the action . Id. ; Alexander v. Fulton

Cnty., Ga. , 207 F.3d 1303, 1339 (11th Cir. 2000).

7 6 . Petitioner must then come forward with specific

evidence proving that the reasons given by the employer are a

pretext for discrimination. Dep't of Corr . v. Chandler , supra ,

at 1187. Conclusory allegations, without more, are insufficient

to show pretext. Instead, Petitioner must meet the proffered

reason head on and rebut it. A reason is not pretext for

discrimination unless it is shown both that the r eason was false,

and that discrimination was the real reason. Corbett v. Beseler ,

2016 U.S. Dist. LEXIS 129639, *29 - *30 (M.D. Fla. 2016) (internal

citations and quotes omitted).

7 7 . ÐAlthough 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

employee remains at all times with the [petitioner].Ñ 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) (ÐThe ultimate burden of proving intentional

discrimination against the plaintiff remains with the plaintiff

at all times.Ñ).

78 . To establish a prima facie case of sex or age

discrimination under the FCRA, Petitioner must show that:

(1) she was a member of a protected sex or age group; (2) she was

subject to an adverse employment action; (3) she was qualified to

do the job 9 / ; and (4) that she was replaced by, or treated less

favorably than, a person of a different age or sex. McQueen v.

Wells Fargo , 573 Fed. Appx. 836, 839 (11th Cir. 2014); see Ellis

v. Am. Aluminum , Inc. , Case No. 14 - 5355 (Fla. DOAH July 14, 2015 ,

F CHR Sept. 17, 2015), FO at 2 - 3 (noting different interpretation

of FCRA regarding whe ther the claimant must be over 40 years old

and whether comparator must be younger or just of a different

age).

7 9 . Petitioner met her burden of establishing a prima facie

case . She proved that she is a member of a protected sex

(female) and age group (a ny age) . She proved that she was

subject to an adverse employment action by being terminated on

December 31, 2015 . Petitioner proved that s he was qualified to

do the job, as interpreted by prior FCHR Orders ( see endnote 9 ) .

Finally , Petitioner provided that a similarly situated male of a

different age was treated differently only insofar as he was

retained by Respondent when Petitioner was terminated .

Petitioner did not prove that, prior to her termination, she was

treated less favorably than a similarl y situated person of a

different age or sex.

80 . The parties agree that, upon Petitioner meeting her

prima facie case, the burden shifts to Respondent to state a

legitimate non - discriminatory reason for the adverse action.

Blizzard v. Appliance Direct, Inc. , 16 So. 3d 922, 926 (Fla. 5th

DCA 2009). Respondent met its burden of production in this

regard. The loss of a significant contract in mid - 2015 led to an

assessment of the sales territories and a reasonable business

decision to combine the south Flo rida territory with the north

Florida, Alabama, Georgia, and South Carolina territory. Once

that decision was made, a reasonable comparative assessment was

made of the two salespersons covering those territories, and a

performance - based decision was made to retain Mr. Patton instead

of Petitioner.

8 1 . Petitioner failed to meet her burden of proving that

RespondentÓs articulated reason for its decision was a pretext

for unlawful discrimination . The more credible, persuasive

evidence proved that Respondent Ós decision was based on an

objective comparison of performance data, augmented with some

consideration of subjective performance attributes , none of which

had anything to do with PetitionerÓs age or sex . Petitioner

ineffectively quibbled with some of the data, but did not

undermine the ultimate conclusions drawn from the comparison.

Indeed, she has no knowledge of how effective Mr. Patton was as a

salesman, nor could she quarrel with his performance data.

8 2 . While Petitioner repeatedly stated that she was a

proven performer, and went so far as to state in her charge of

discrimination filed with FCHR that she had always met or

exceeded expectations throughout her employment, the evidence

demonstrated that this was not the case, at least since 2011. In

e ach annual evaluation, Petitioner was consistently rated as only

partly meeting expectations, while just as consistently,

Petitioner demonstrated an inflated view of her own performance.

8 3 . Petitioner also ineffectively quibbled with the

subjective deter minations on which a comparative assessment was

made between Petitioner and Mr. Patton. Petitioner essentially

acknowledged that in Mr. BowmanÓs first month as her manager, he

fielded two complaints by customers about PetitionerÓs

performance as their sal es representative. Petitioner

defensively noted these were two isolated incidents -- yet they

were two customer complaints made to her manager in his first

month in that position. In contrast, after more than a year of

managing Mr. Patton, Mr. Bowman had n o performance issues and no

complaint issues. Petitioner presented no evidence to the

contrary.

8 4 . Petitioner failed to meet her ultimate burden of proof

that Respondent intentionally discriminated against her because

of her age or her sex.

Claim of Ret aliation

8 5 . Just as with the claim of age and sex discrimination,

PetitionerÓs claim that Respondent terminated her employment in

retaliation for her complaint to the human resources department

is not supported by any direct evidence, and thus, is analyz ed

under a similar burden - shifting approach.

86 . To establish a prima facie case for retaliation,

Petitioner must prove that: she engaged in statutorily protected

activity; she suffered an adverse employment action; and there is

a causal relation between the two events. Farley v. Nationwide

Mut. Ins. Co. , 197 F.3d 1322, 1336 (11th Cir. 1999). For

purposes of establishing a prima facie case, a close temporal

proximity between the protected expression and an adverse action

can provide sufficient circumsta ntial evidence of a causal

relation between the two events .

8 7 . Petitioner established a prima facie case, by showing

that she complained to the human resources department about her

manager on October 1, 2015, and the recommendation that

Mr. Patton be re tained and PetitionerÓs position be eliminated

was made 22 days later, albeit that PetitionerÓs termination was

not effective until three months after the protected action.

8 8 . Respondent must then articulate a legitimate, non -

retaliatory reason for the adverse employment action. Respondent

did so, with the explanation for consolidating territories

because of the lost HPG contract, followed by the performance -

based comparison of which of the two sales representatives should

be retained for the single sal es position.

8 9 . The burden thus shifted back to Petitioner to prove

that the proffered reason is merely a pretext for prohibited

retaliatory conduct. Petitioner was required to prove that the

reasons given by Respondent were not the real reasons for th e

adverse employment decision. Conclusory allegations, without

more, are insufficient to show pretext. Instead, Ðthe employee

must meet [the proffered] reason head on and rebut it, and the

employee cannot succeed simply by quarreling with the wisdom of

t hat reason.Ñ Chapman v. A 1 Transp. , 229 F.3d 1012, 1030 (11th

Cir. 2000) (en banc). S ummary judgment against the claimant o n a

retaliation claim has been deemed proper Ðwhere the defendant

offers legitimate reasons and the employee only offers temporal

p roximity.Ñ Gerard v. Bd. of Regents , 324 Fed. Appx. 818, *826,

2009 U.S. App. LEXIS 9726, *21 (11th Cir. 2009).

9 0 . Petitioner failed to meet her burden of proving

pretext. Petitioner acknowledged the legitimate reasons offered

by Respondent, but offer ed proof of only temporal proximity in

response. Petitioner argued that this should suffice because in

PetitionerÓs view, Respondent failed to substantiate its reasons.

But it was not RespondentÓs burden to present proof to

substantiate its reasons; it w as PetitionerÓs burden to Ðmeet the

proffered reason head on and rebut it.Ñ Chapman , supra .

Petitioner failed in this regard.

9 1 . Petitioner did not meet her ultimate burden to prove

that Respondent retaliated against her because of her complaint

to t he human resources department against Mr. Bowman.

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 dismissing the Petition for Relief

by Peti tioner, Donna Earley, against Respondent, Teleflex, Inc.

DONE AND ENTERED this 2nd day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hea rings

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 2nd day of March , 2017 .

ENDNOTE S

1/ Pe titionerÓs testimony was confusing at times, often lacking

in detail and context, such as the timing of when certain events

occurred in relation to other events. For example, her testimony

regarding the various changes to her sales territories and

manager s was hard to follow, and her testimony at hearing on this

subject seemed inconsistent with her deposition testimony on the

same subject. The findings reflect the undersignedÓs

reconciliation of the somewhat disjointed testimony in the

record, and at time s are necessarily vague (e.g., Ðat some

pointÑ) when that is the best the record testimony would support.

2/ Petitioner did not claim in her charge of discrimination that

RespondentÓs decision in early 2014 to split the state of Florida

into two separate territories was an act of discrimination

against her. PetitionerÓs complaint filed with FCHR alleged that

the earliest time that she was allegedly subjected to unlawful

discrimination was in August 2014. The business purpose standing

behind the companyÓ s decision to split Florida into two

territories in March 2014 was shown to be reasonable; Petitioner

did not attempt to prove otherwise.

3/ Mr. PhillipsÓ assessment of Petitioner was set forth in a

document sent by email from Mr. Phillips to Mr. Bowman, and then

they met to discuss it. Although Petitioner questioned the

authenticity of the document, which was not signed or dated,

Mr. Bowman credibly explained when and from whom the document was

received, and his testimony in this regard is credited. I n

addition, the contents of the document substantiate that the

source was Mr. Phillips. For example, one criticism was that

Petitioner struggles with technical things, such as learning

Ðsimple Excel functions,Ñ and had not taken the time to learn ,

even th ough she had been told about the Excel courses available

at no charge on the companyÓs website. Petitioner confirmed her

belief that Mr. Phillips wrote that critique, as he had spoken

with her about her problems using Excel and the need to improve.

Also of note is this passage: Ð[B]ecause Donna is an emotionally

charged and dramatic person she has a very difficult time with

change. When I informed her about the territory split, she was

quiet at [first], and then became livid! You would have thought

I f ired her; she was so upset and emotional (to the point of

tears).Ñ (Resp. Exh. 8 at 5). Petitioner confirmed that it was

James Phillips who informed her of the territory split into north

Florida and south Florida territories, which occurred in the

first q uarter of 2014 before Mr. Bowman was hired. Although

Petitioner questioned whether a few other parts of the assessment

may have been written by Mr. Bowman or by Mr. Phillips and

Mr. Bowman together, her reasoning was unclear or unsubstantiated

and her sus picions are not credited. For the most part, when

asked to explain why she did not believe Mr. Phillips authored

particular statements, she lapsed into arguing whether the

statements themselves of various negative qualities had merit.

Regardless, as noted at hearing, the assessment document is

hearsay if offered to prove the truth of the statements made in

that document, and for that purpose, can only be considered to

the extent it supports or explains other admissible evidence.

§ 120.57(1)(c), Fla. Stat . The assessment document can also be

considered for reasons other than the truth of the matters

asserted. In this vein, whether the statements are true or not,

the fact that the document was provided by PetitionerÓs manager

of a few months as his person al assessment of a salesperson who

would become the charge of the incoming new manager was

considered, just as Mr. BowmanÓs testimony has been considered

that he did not accept Mr. PhillipsÓ personal assessment of

Petitioner because he wanted to judge Peti tioner for himself.

4/ Embellishing on her perception that he was trying to bring her

down , Petitioner testified that in their first meeting on July 1,

2014, Mr. Bowman made a gesture with his hands around his own

neck holding his head up; he said that h e was holding her up and

that he could either lift her up or bring her down. Petitioner

described this as a threat en ing, choking gesture. PetitionerÓs

description was overly dramatic and not found to be credible. It

is not credible that Petitioner would have experienced an

incident as she described it and not report it to anyone, even

the human resources department when she ultimately complained

about Mr. Bowman, nor include it in the Ðexact diary of events

leading toÑ her termination in her complaint fi led with FCHR.

5/ Petitioner admitted in her deposition testimony that she knew

Mr. Bowman wanted to quote a higher price for the new pump. As

she stated: Ð[W]e did not see eye to eye on that, but he never

explained what his thought process was and w hy that had to be

changed to a higher quote[.]Ñ (R. Exh. 28 at 154). Given this

explanation, Mr. BowmanÓs reaction to PetitionerÓs email was

understandable, as the email informed the customer that

Mr. Bowman was the cause of the delay, perhaps as a way t o put

pressure on Mr. Bowman to accede to PetitionerÓs viewpoint.

6/ Petitioner described a conversation with Mr. Bowman while they

were in Alabama visiting customers in late October 2014, in which

the general subject of retirement came up. Mr. BowmanÓs hearing

testimony describing the context of this innocuous conversation

was credible and is credited. Mr. Bowman went with Petitioner on

a two - day field trip to Alabama. The conversation came up during

the second day of the two - day trip, during a one - ho ur drive to

Tuscaloosa to see a customer. The drive was in the country on a

beautiful fall day, and Mr. Bowman and Petitioner talked about

their personal situations and got to know each other a little

bit. Petitioner shared how she met her husband in hig h school

and how he initially worked for the telephone company in Chicago,

which caused Mr. Bowman to share that his father had worked for

the telephone company in Pennsylvania until he retired. The

overall conversation was one of families and life progre ssion.

The general subject of retirement was part of that, but only as a

passing reference; like Petitioner, Mr. Bowman was in his late

50s at the time. Mr. Bowman emphatically (and credibly) denied

that he was trying to get Petitioner to retire as a res ult of

that conversation. Petitioner acknowledged that Mr. Bowman never

said anything directly about PetitionerÓs retirement plans, much

less suggest that Petitioner should consider retiring early, but

Petitioner said she interpreted it that way. Here to o,

PetitionerÓs description was overly dramatic, as she started

describing a conversation in which retirement came up during a

drive of almost two hours, but then her story became that

Mr. Bowman talked about nothing but retirement for two solid

days. Pet itioner also testified that she was so troubled by the

retirement talk that she made an anonymous call to the Teleflex

ethics hotline. In contrast, she told Ms. Robichaud when she

complained about Mr. Bowman on October 1, 2015, that she called

the ethics hotline in August 2014 (months before the Alabama

trip), to complain about the loss of some of her Florida sales

territory which was later assigned to the newly - hired Mr. Patton.

7/ Petitioner also argued that there was sufficient evidence to

allow the f act - finder to find that the reasons given by

Respondent for terminating her employment were a pretext for

retaliation, based on various alleged inconsistencies and

challenges to the credibility of RespondentÓs witnesses.

However, PetitionerÓs positions re garding alleged inconsistencies

and credibility have not been accepted and are not reflected in

the findings of fact. Moreover, PetitionerÓs claims of

inconsistency and lack of credibility were not directed to

refuting RespondentÓs proffered reasons for t he adverse

employment decision.

8/ References to Florida Statutes are to the 2016 codi fication .

9 / PetitionerÓs prima facie burden is not an onerous one. While

evidence related to PetitionerÓs job performance is relevant to

RespondentÓs explanation for its action and whether that

explanation was a pretext for unlawful discrimination or

retaliation , such evidence does not preclude a determination that

Petitioner was qualified to do the job, insofar as that inquiry

is part of the prima facie burden. S ee Crapp v. City of Miami

Bch. Police DepÓt , 242 F. 3d 1017, 1020 (11th Cir. 2001).

Accordingly, FCHR has consistently determined that a person is

Ðqualified to do the jobÑ for purposes of satisfying this

criterion as part of a prima facie case if the per son is shown to

be at least ÐminimallyÑ qualified, with more than Ða total lack

of qualification,Ñ by virtue of having been hired for the

position. See, e.g. , Ellis v. Am. Aluminum, Inc. , Case No. 14 -

5355 (Fla. DOAH July 14, 2015, FCHR Sept. 17, 2015), FO at 3 - 4.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Steven Edward Hovsepian, Esquire

Barbas, Nunez, Sanders

Butler and Hovsepian

1802 West C leveland Street

Tampa, Florida 33606

(eServed)

Gil Brosky, Esquire

Baker & Hostetler, LLP

Suite 2000

127 Public Square

Cleveland, Ohio 44114

James W. Seegers, Esquire

Baker & Hostetler, LLP

Suite 2300

200 South Orange Avenue

Orlando, Florida 32801

(eS erved)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 da ys 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.