18-003303 Gary E. Boyd vs. Mac Papers Inc. Status: Closed Recommended Order on Tuesday, February 19, 2019.

Summary: Petitioner proved that Respondent discriminated against his employment based on his age and is entitled to recover compensation and costs, including attorney's fees and reinstatement.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY E. BOYD ,

Petitioner,

vs. Case No. 18 - 3303

MAC PAPERS, INC. ,

Respondent.

_______________________________/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

October 2 , 2018, in Jacksonville , Florida, before James H.

Peterson III, Administrative Law Judge with the Division of

Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Angela G. Robinson, Esquire

Angela G. Robinson, P.A.

3610 Dubsdread Circle

Orlando, Florida 32804

For Respondent: Kevin Hyde, Esquire

Foley & Lardner, LLP

Suite 1300

One Independent Drive

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Mac Papers, Inc. (Respondent or Mac Papers) violated

the Florida Civil Rights Act of 1992 (FCRA) , sections 760.01 Î

760.11 and 509.092, Florida Statutes, 1/ by discriminating aga inst

and discharging Gary E. Boyd (Petitioner) based upon his age.

PRELIMINARY STATEMENT

On June 22, 2017, Petitioner filed an Employment Complaint

of Discrimination (Complaint) with the Florida Commission on

Human Relations (Commission or FCHR). The Commission

investigated the Complai nt, which was assigned FCHR

No. 2017 01339. Following completion of its investigation, the

CommissionÓs executive director issued a Ð Determination :

No Reasonable Cause, Ñ dated May 18, 2018, finding that Ðno

reasonable cause exists to believe that an unlawful employment

practice occurred.Ñ That same day, the Commission sent

Petitioner a Ð Notice of Determination : No Reasonable Cause Ñ

(Notice) on the Complaint , which advised him of his right to

file a Petition for Relief for an administrative proceeding on

his Complaint within 35 days of the Notice, or a civil action

within one year from the Notice. Petitioner timely filed a

Petition for Relief with the Commission reiterating the

allegations of his Complaint .

On June 27 , 2018, the Commission filed a Transmittal of

Petition with DOAH for assignment of an administrative law judge

to conduct an administrative hearing on the Petition for Relief.

The case was assigned to the undersigned and t he final hearing

was originally sc heduled for August 27, 2018, was rescheduled for

October 2, 2018 , and was convened on that date .

At the final hearing, Petitioner testified on his own behalf

and offered 16 exhibits , which were received into evidence as

P etitionerÓs P - A, P - K through P - O, P - Q through P - S, P - U, P - V, P - X

through P - Z , and P - BB through P - DD . Mac Papers presented the

testimony of two witnesses and offered six exhibits , which were

received into evidence as RespondentÓs Exhibits R - 1 through R - 6.

The parties offered 15 joint exhibits , which were received in to

evidence as Joint Exhibits 1 through 15.

The proceedings were recorded and a transcript was ordered.

The parties were given 30 days from the filing of the transcript

to submit their proposed recommended orders. The one - volume

Transcript of the hearing , separated into three binders, was

filed on November 2 , 2018. At PetitionerÓs request, a n Order

Granting Extension of Time was entered , extending the date for

filing the partiesÓ proposed recommended orders until

December 21, 2018. Mac Papers timely filed its P roposed

R ecommended O rder on December 21, 2018. Thereafter, on

December 26 , 2018, Petitioner filed a Proposed Recommended O rder

together with PetitionerÓs Motion to Accept PetitionerÓs [late -

filed] Proposed Recommended Order. An Order Acceptin g

PetitionerÓs Late - Filed Proposed Recommended Order was entered

on Dec ember 28, 2018. Both partiesÓ Proposed Recommended O rders

have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Mac Papers is a Florida corporation in the business of

distributing paper and print, packaging, facility supplies , and

office products. Mac Papers serves customers in nine states

throughout the Southeast, including large commercial printers

and businesses using large quantities of paper products or

envelopes.

2. Mac Paper s is an employer subject to Florida Civil

Rights Act of 1992 .

3. Petitioner is a former sales representative of Mac

Papers.

4. Petitioner was employed by Mac Papers from June 24,

1987 to June 7, 2017, a pproximately 30 years. Petitioner was

born on January 19, 1950 , and was 67 years old when his

employment was terminated with Mac Papers.

5. For all material times , Petitioner was a 100 percent

commissioned sales representative, meaning he was paid a

commission percentage on product sold. Petitioner was not paid

a salary or hourly wage .

6. Since at least 2011, Ryan Chapman, g eneral m anager of

Mac PapersÓ Orlando b ranch, was Petitioner Ós direct manager.

7. Dave Milleman, Mac PapersÓ former s enior r egional vice

president , was Ryan ChapmanÓs direct manager.

8. In the calendar year of 2011, Petitioner earned

compensation equal to about $94,098 .

9. In the calendar year of 2012, Petitioner e arned

compensation equal to about $ 97,990.

10. In the calendar year of 2013, Petitioner earned

compensation equal to about $79,649.

11. In the calendar year of 2014, Petitioner earned

compensation equal to about $73,287.

12. In the calendar year of 2015, Petitioner earned

compensation equal to about $ 65,020.

13. In the calendar year of 2016, Petitioner earned

compensation equal to about $58,178.

14. The parties stipulated that PetitionerÓs compensation,

for 2017, projected o ver 12 months , would equal about $112,000.

15. Petitioner was paid a $1,000 bonus for being Mac

PapersÓ Southeast divisionÓs m onthly s ales c ontest w inner in

August 2016.

16. Petitioner was paid a $1,000 bonus for being Mac

PapersÓ Southeast divisionÓs mo nthly sales contest winner in

March 2017.

17. On April 9, 2017, a Sunday evening, Petitioner was

arrested for Kidnapping/False Imprisonment and Domestic Battery

of his wife .

18. Petitioner reported to work on April 12, 2017 , and met

with Ryan Chapman and Dave Milleman. Petitioner explained that

he had been arrested on Apr il 9, 2017, missed work the previous

two days because he was in jail, and was required to wear an

ankle monitor device as condition of bail.

19. Petitioner showed them his ankle monitor and told them

that he could keep it covered with long pants and that it would

not interfere with servicing any of his accounts.

20. Mac Papers had no written policy concerning ankle

monitors. This was the first time that Mac Papers was aware of

any of its employees having to wear one.

21. Petitioner was told that he could not service

customers while wearing the ankle monitor .

22. Petitioner asked if he could work from home. He had

worked from home several times while on medical leave ,

consisten t with Mac Papers Ó routine practice to accommodate its

employees.

23. PetitionerÓs request to work from home was denied and

Mac Papers suspended PetitionerÓs employment , without pay ,

effective April 12, 2017. Petitioner was provided a letter

dated April 12, 201 7 (Suspension Letter) , from Dave Milleman and

Ryan Chapman , on the subject of his recent arrest which stated:

Gary, it has also come to our attention that

you were arrested Sunda y on a domestic

violence related charge. Though this arrest

did not occur during Ðwork hours,Ñ it did

impact you r ability to report to work on

Monday 4/10 and Tu esday 4/11. What is

concerning, is that you failed to advise

your General Manager of this situation and

therefore, left him in a difficult position

while communicating with your customers.

Because you are wearing a Seminole County

Electronic Monitoring Protection and Crime

T racking (E.M.P.A.C.T.) ankle monitor, you

are prohibited from servicing or visiting

customers and are on an unpaid leave of

absence. Customers will be told that you

are on a leave of absence due to personal

reasons. This unpaid leave of absence will

continue up to 6/1/2017. Your benefits will

continue during this leave of absence;

however, you are responsible for your

portion of the monthly premium .

If this monitor is removed or all criminal

charges are dropped before 6/1/17, you may

resume servicing your customers. If the

criminal charge s are still pending as of

6/1/2017, your employment with Mac Papers

will be terminated. However, you will be

r e - hirable in the event that sai d charges

are dismissed.

Once you receive a disposition or finding,

please contact Kathy Wentworth, Director

H.R. A conviction of a violence related

charge, may impact your employment with Mac

Papers.

You have attested to your manager that you

have never been arrested or convicted of a

similar crime in the past. To validate this

assertion, we will run a nationwide criminal

check. Your employment may be affected if

your statements prove to be untruthful.

Please acknowledg e your receipt and

understanding by signing below.

24. On April 12, 2017, Petitioner signed the Suspension

Letter, as requested .

25. That same day, Mac Papers suspended PetitionerÓs email

account with Mac Papers and he was completely cut off from the

company.

26. PetitionerÓs background check came back five days

later, on April 17, 2017, which corroborated PetitionerÓs

statement that he had no criminal history.

27. While Petitioner was suspended, his customer accounts

were assigned to other sales re presentatives, Tyler Moore,

age 31 , and Mike Miller, who is 10 years younger than

Petitioner .

28. Petitioner was able to secure an Or der to remove the

ankle monitor on May 25, 2017, one week prior to Mac PaperÓs

June 1, 2017, deadline .

29. T he O rder allowing removal of the monitor in the

criminal case was secured upon PetitionerÓs agreement that he

would not object to a permanent injunction against him in the

civil case.

30. That same day , May 25, 2017, the assistant state

attorney referred Petitioner to participate in a Pre - Trial

Diversion Program, one of the conditions of wh ich was completion

of the Batterer Ós Intervention Program. The Batter er Ós

Intervention Program would last for a period of nine months and

required Petitioner to perform community service, refrain from

drug or alcohol use or possession , and be subject to random

alcohol testing. The assistant state attorney forwarded the

contract for the Pre - Trial Diversion Program to Petitioner Ós

attorney.

31. On Friday, May 26, 2017, Petitioner forwa rd ed to Kathy

Wentworth, Mac PapersÓ director of h uman r esource s , the

assistant state attorneyÓs email containing the Pre - Trial

Diversion Program contract.

32. Instead of honoring the terms of t he Suspension Letter

stating that Petitioner would be allowed to re turn to work upon

removal of his ankle monitor, Mac Papers did not meet with

Petitioner until Friday, June 2, 2017, on which date Ryan

Chapman and Dave Milleman met with Petitioner to discuss

conditions under which he would be p ermitted to return to work.

Those conditions were set forth in a letter from Mr. Milleman

and Mr. Chapman to Petitioner dated June 2, 2017 (Return to Work

Letter), which stated:

Gary, thank you for providing detailed

information about the Se minole diversion

program and it s requirements. It is our

understanding that the Seminole County

Electronic Monitoring Protection and Crime

Tracking (E.M.P.A.C.T.) ankle monitor has

been removed. It is also our understand ing

that if you successfully complete the

9 month program all charges resulting from

your April 9 th arrest will be dropped and

you will not have a criminal record.

Based on the above understandings , we will

allow you to return to your Sales

Representative position effective Monday,

June 5 th . You will not be compensated for

the period of time while you were suspended

from employment. Your return to work is

contingent on the following:

• During our meeting on 4/12/17 (with

both Dave and Ryan), you stated tha t

you have an alcohol problem, and that

this problem contributed to incident

of domestic violence and your arrest.

As driving is an essential function

of your job, Mac Papers must ensure

you can safely drive without danger

to yourself or others. Addition ally,

we are concerned about whether your

admitted alcohol problem will impact

your ability to perform your sales

function. Therefore,

o We will run an MVR to confirm your

driversÓ license validity and

driverÓs license record.

o You must add Mac Papers In c. as an

interested party on your car

insurance policy. This will allow

Mac Papers operations department

to confirm level and validity of

coverage as well as be alerted

when any change is made to the

insurance covera ge. Please touch

base with Debi Donnel ley with any

questions.

o If the company learns or has

reason to believe that you have

violated the terms of your

intervention program or do not

successfully complete the program

on or before the required date,

your employment with Mac Papers

will be terminated.

o You will contact our EAP vendor,

Health Advocate, at 877 - 240 - 6863

to set up sessions with a

counselor. You will provide them

regular updates regarding your

participation in the diversion

program and provide them the

results of all random alcohol

tests. You will authorize the EAP

to share the results of any

alcohol test administered to you

with Mac Papers. Failure to

contact the EAP, failure to allow

them to share test results or

relevant information or an altered

or positive test is grou nds for

termination. All of this is to

ensure that you can safely perform

the functions of your job,

including driving.

o During the following 9 months, you

will be subject to random alcohol

tests administered by Mac Papers

or its testing provider. You wi ll

be contacted via the phone by HR

and must report to a testing site

within 30 minutes of notification.

Failure to comply, an altered or

test positive will be grounds for

termination. Again, this is to

ensure that you can safely perform

the functions of your job,

including driving.

• You will again be responsible for

servicing the following 26 accounts

and will receive commission on all

items sold:

[ a chart with a listing

of 26 accounts appeared

here in the letter ; C& S

Printing, previous ly one

of PetitionerÓs

accounts, was not

listed . ]

o Some accounts have been

reassigned.

• Additional performance requirements

include:

o Your goal is to add new accounts

that qualify for our passport

sales contest by December 2017.

o Beginning Friday, June 9 th , submit

a strategy report to Ryan Chapman.

This report should include calls

made for the week to track

progress for achievement of new

customer and sales goals, as well

as calls scheduled for the

following week. Continue

submitting such reports weekly

through out t he remainder of 2017.

• You are prohibited from contacting

any reassigned accounts. These

accounts were reassigned due to sales

performance during your absence.

Gary, we are both available to

discuss.

And finally, the March 2017 mill claim for

Direct One was resolved. This resulted in a

loss of commission of $1,477. Additionally,

during your absence it was discovered that

during the conversion to the new operating

system that February and March 2017

commission report generation was flawed.

The overhead expenses were not properly

calculated. This resulted in the

overpayment of commission to almost all

employees who received commissions during

this time frame. Your overpayment was a

total of $5,371.13 (please see the breakdown

below). This overpayment as well as the

commission recovery due to the mill claim

will be taken from the

September/October/November check dates in

equal amounts.

[ a listing of alleged

overpayments totaling

$5,371.13 appeared here

in the letter . ]

Nothing in this letter alters the at - will

employment relationship between you and Mac

Papers. Please acknowledge your receipt and

acknowledgement of its terms by signing

below.

We wish you the best as you return to work.

[ Here , the letter provided lines for

Petitioner and Ryan Chapman to sign and

date . ]

33. Later in the afternoon of June 2, 2017, Kathy

Wentworth emailed Petitioner and forwarded a copy of the Return

to Work Letter. The email stated ÐIt is my understanding that

you plan to review the document over the weekend and respond on

M onday. Please scan and email back to me along with the signed

diversion program document. Your return date will be the day

following the date we receive the si gned document.Ñ

34. Petitioner did not agree with the terms of the Return

to Work Letter.

35. Petitioner has consistently denied that he ever had an

alcohol problem. Other than a hearsay opinion from a police

officer 2/ that Petitioner seemed intoxicate d at the time of his

arrest, there is no evidence that Petitioner has ever been

intoxicated.

36. In the 30 years that Petitioner worked for the

company, Mac Papers had never received a complaint from anyone

regarding Petitioner Ós drinking . Prior to PetitionerÓs arrest ,

Mac Papers had never had a meeting with Petitioner regarding his

use of alcohol. PetitionerÓ s driving records do not indicate

any incident s involving alcohol.

37. Mac Papers is not opposed to off - duty drinking by its

employees. It hosts a sales meeting every year at which it pays

for an Ðopen bar.Ñ

38. Petitioner testified that he did not tell Mr. Chapman

and Mr. Miller that he had a drinking problem. Rath er, he told

them that, Ñlike everyone else. I have a couple of drinks in

the afternoon, and I donÓt - - I donÓt have a drinking problem.Ñ

PetitionerÓs testimony in that regard is credited.

39. Just p rior to his arrest and subsequent suspension,

Petitioner serviced and was responsibl e for approximately

49 accounts, but the Return to Work Letter only returned 26 of

Pe titioner Ós accounts. Among the accounts lost under the terms

of the Return to Work Letter were five of PetitionerÓs top

10 accounts.

40. C&S Printing (C&S) was one of th e approximately

49 accounts that Petitioner had before his suspension , but was

not listed as one of the 26 accounts that Petitioner would

receive under the Return to Work Letter. Rather, C&S was

permanently reassigned to Mr. Miller.

41. Petitioner had serviced the C&S account for

approximately 30 years. In 2016, C&S was PetitionerÓs second

highest revenue pr oducing account. Petitioner maintained an

excellent personal relationship with Buck Denzer, his sales

contact at C&S ; the two often had lunch together when Mr. Denzer

was in Orlando.

42. Although Petitioner had been warned four years

earlier, on April 3, 2013, that C&S purchases were down

48 percent and gross profit was down 30 percent in the first

quarter, that warning only related to one 3 - month period. There

is no evidence of any other problem with the a ccount, and it was

not permanently reassigned from Petitioner until June of 2017.

That reassignment was not acceptable to Pet itioner.

43. Mac Papers contends that its Ðlegitimate business

reasonÑ in reassigning C&S was based solely on sales for the

month of May 2017 . In that month, sales to C&S allegedly

doubled.

44. Mr. Chapman wrote about that increase in the Ð Remarks Ñ

section of a sales chart that ÐMay sales were d ouble from

previous 12 months.Ñ That statement, however, is misleading .

At trial, Mr. Chapman explained that he meant to write that

May sales were double the Ðprevious 12 monthly average.Ñ

45. On the chart, Mr. Chapman compared gross profit to

sales, but the two are not the same. Gross profit can depend on

a number of different variables, incl uding profit margins,

product mix, commissions, special commissions, and pricing and

structure.

46. Although Mac Papers claims that the sizeable increase

in sales to C&S in May of 2017 was the primary factor for

permanently reassigning the account to Mr. Miller , the evidence

is insufficient to show that the increase had anything to do

with reassignment of the account.

47. S ales in the C&S account fluctuate. For example,

Petitioner Ós highest monthly sale to C&S in 2014 was $43,842,

while the lowest monthly sale was $13,772. In 2015, the highest

m onthly sales amount was $28,910; the lowest monthly was

$11,562. In 2016, the highest monthly sale was $40,434, and the

lowest monthl y sale was $16,137.

48. Given the fluctuations, it is impossible to know what

Petitio ner Ós sales in the C&S acc ount would have been during

May 2017 , versus sales for the same time period when the account

was serviced by Mr. Miller .

49. Under the terms of the Return to Work Letter,

Petitioner would lose all of the income from his accounts during

his suspension . T hat income would go to Mr. Chapman and others

who were assigned PetitionerÓs accounts during PetitionerÓs

suspension . Under the terms , Petitioner would receive

substantially lower pay , and m any of the conditions made

Petitioner fe el like a criminal. Petitioner disagre ed with the

reassignment of his accounts and the purported reason for their

reassignment. Because of his disagreement with its terms,

Petitioner did not sign the Return to Work Letter.

50. On Wednesday, June 7, 2017, Petitioner Ós employment

was terminated . A letter from Ryan Chapman to Petitioner

stated:

This is to inform you that your employment

with Mac Papers is terminated effective

immediately. We met with you on Friday,

June 2, 2017 and discussed a number of

con ditions for you to fulfill to remain

employed. One of those conditions, as

outlined in the letter which you were given,

is that Ðyou are prohibited from contacting

any reassigned accounts. These accounts

were reassigned due to sales performance

during yo ur absence.Ñ

Mac Papers has been notified by a cu stomer

representative that you contacted the

customer and complained of the account being

reassigned. You also complained about Mac

Papers asking you to submit to random

alcohol testing due to your statement to Mac

Papers that you have an alcohol problem

which may have contributed to your recent

arrest for domestic violence.

It is wholly inappropriate to involve a

customer in an internal personnel matter.

Doing so shows not only poor judgment but is

also something which Mac Papers directly

prohibited you from doing less than one week

ago.

Kathy Wentworth will work with you on final

payroll matters and COBRA notification.

We wish you the best.

51. The customer that Petitioner had contacted was C&S .

That contact was with Jeff Lambert at C&S , whom Petitioner had

known for 30 years.

52. PetitionerÓs contact with C&S was reported by

Mr. Miller to Mr. Chapman , who told Mr. Chapman about

Petitioner Ós so - called Ðunauthorized conversation . Ñ

53. Although PetitionerÓs contact with C&S was

inconsistent with the terms of the Return to Work Letter ,

Petitioner disagreed with that letter and never signed it.

54. After Petitioner was fired, Mr. Chapman permanently

re assigned the C&S account to Mr. Miller . The C&S account was

the only account taken from Petitioner that was permanently

reassigned to Mr. Miller.

55. Petitioner Ós criminal case was n olle p rosequi on

July 25, 2017.

56. The way that Mac Papers dealt with PetitionerÓs

domestic violence arrest was inconsistent with the way the

company handled a similarly situated, younger employee.

57. In M ay of 2016, approximately 11 months prior to

Petitioner Ós arrest, Mac PapersÓ sales representative Don Swift

was arrested for domestic battery on his wife during a Mac

Papers Ó convention in Las Vegas.

58. Mr. Swift had been employed by Mac Papers since

June 14, 2002. A t the time of his arrest , Mr. Swift was

39 years old.

59. Unlike Petitioner, Mr. Swift was not given a deadline

to have his criminal charges dropped in order to keep hi s job.

60. Based on its knowledge of events following Mr. SwiftÓs

arrest, Mac Papers was aware that it might take a significant

period of time to obtain dismissal of domestic violence charges.

It took six months for Mr. SwiftÓs charges to be dropped.

61. In contrast, a fter Petitioner was arrest ed for

domestic violence on April 9, 2017, Mac Papers told him that

unless the charge against him was dismissed by June 1st, 2017,

less than two months from his arrest, his employment with Mac

Papers would be terminated , and that , if terminated, he could

only be rehire d after his criminal charges were dropped.

62. There is no evidence that Mac Papers made an effort to

determine if it was realistic to demand that PetitionerÓs

criminal charge be dropped by June 1, 2017, just 52 days from

his arrest , to avoid termination .

63. Although Petitioner was able to obtain removal of his

ankle monitor one week prior to the June 1 st deadline, he was

unable to obtain dismissal of the criminal charge by June 1,

2017, as required by Mac Papers in its April 12 th Suspension

Letter.

64. Rather than allowing Petitioner to return to work,

Mac Papers , for all intents and purposes , terminated Petitioner

on June 2, 2017 , by insisting on numerous additional employment

conditions , reduction in compensation , and account reassignments

that were understandably unacceptable to Petitioner.

65. Mac Papers treated Mr. Swift much differently than it

treated Petitioner in a comparable situation. Mr. Swift was not

terminated because he was not convicted. On the other hand,

Petitioner , who also was not convicted , was terminated .

66. There is no evidence that Mr. Swift denied that he had

committed violence against his wife , whereas Petitioner always

denied the charge. Mr. Swift was warned. Petitioner was fired.

67. Instead of being terminated, Mr. Swift was given a

Ðlast chance final warning , Ñ described by Mac PapersÓ director

of human resources, Kathleen Wentworth, as Ða written warning

advising him of his be havior, that it could not continue, and if

further issues along these lines - - were - - came up he wo uld be

subject to termination.Ñ

68. Mac Papers , through its human resources director,

acknowledged that conviction is grounds for termination, while

arrest is not. Nevertheless, Petitioner was actually, as well

as constructively , discharged because of his arrest .

69. Petitioner Ós criminal charges were dropped on July 25,

2017, four months after his arrest ; two months faster than

dismissal of the charges against Mr. Swift .

70. Consistent with Petitioner Ós insistence on his

innocence , r elease of the 911 tape of the incident demonstrated

Petitioner Ós innocence and the charge against Petitioner was

dismissed .

71. Although Mac Papers contends that it terminated

Petitioner because he contacted C&S , based on the terms of the

Suspension Letter , PetitionerÓs termination actually occurred on

June 1 , 2017, because the charges against Petitioner had not

been dismissed by that date as required. Petitioner was also

constructively discharged prior to his contact with C&S by

virtue of intolerable employment conditions insisted upon in the

Return to Work Letter. The reasons set for th in that letter in

an attempt to justify the reassign ment of PetitionerÓ s top

accounts and for terminating Petitioner were mere pretext.

72. The evidence does not support the statement in the

Return to Work Letter that PetitionerÓs accounts were reassigned

to other s due to sales performance during PetitionerÓ s

s uspension . Mac PapersÓ purported reasons for reassignment are

set forth in the ÐRemarksÑ column in a chart of reassigned

account s listed in Joint Exhibit 2 - G. For instance, similar to

the reason given for reassignment of C&S , the alleged reason for

reassigning the Business Cards Tomorrow (BCT) account was due to

Ð increased sales. Ñ According to the remarks, Ðsales increased

63% over the previous 12 months in Apri l and May when Gary was

out.Ñ

73. BCT was PetitionerÓs third largest revenue producing

account in 2016. When Petitioner received the account in 2012,

its averaged monthly gross profit was $1,250, which is $15,000 a

year. Petiti oner doubled the account in four years. In 201 6,

the average monthly profit w a s $2,489, or $ 29,871 in gross

profit for the year.

74. Mr. Chapman received the reassigned BCT account. In

contrast to remarks indicating increased sales, the chart shows

that gross profit fell from $3, 829 in April (the month

Petitioner lost the account) to $2,812 in May, when the account

was serviced by Mr. Chapman, a substantial decline in gross

profit.

75. On the other hand, there are accounts listed that

Petitioner retained and were not taken away despite increased

gross profit during PetitionerÓs suspension. In other words,

the evidence suggests pretext, as opposed to legitimate business

reasons , for reas signing PetitionerÓs larger revenue - generating

accounts.

76. Another reassigned account, the Orange County School

Board account, was reassigned purportedly based on notes

provided by a salaried sales person who was servicing the

account during PetitionerÓs abs ence. According to those notes,

although Petitioner had been servicing the account for four

years, Ð no one in the account knew they had an account manager.Ñ

Those notes, however , are inconsistent with PetitionerÓs

testimony that he always serviced the ac count. As the Orange

County School Board account was PetitionerÓs sixth largest

account at the time of his suspension, PetitionerÓs testimony is

more likely and is credited.

77. Similarly, the statement in the remarks of the

H &H Printing account , PetitionerÓ s seventh largest account, that

Petitioner Ðis not involved or making regular calls,Ñ is

inconsistent with the ev idence. Rather, the evidence shows

PetitionerÓs substantial attention to the account over the

yea rs. Petitioner grew the account from its aver age yearly

gross profit of $8, 832 in 2012 to $13,453 in 2016.

78. The inconsistences between the evidence and the

alleged reasons for the reassignments show that the reasons

given are mere pretext, as opposed to legitimate business

reasons.

79. Further evidence of Mac Papers Ó true intent toward

Petitioner is found in historical reassignment of PetitionerÓs

accounts over the years to younger employees after Petitioner

had grown the accounts. For instance , Moran South, Orlando

Envelope Company (Moran Printing ) was one of PetitionerÓs

original accounts which he had serviced since he was hired by

Mac Papers in 1987. Petitioner had grown the Moran Printing

account from $1,500 a month in sales to between $3 and $4

million dollars a year .

80. Mac Papers took the Moran P rinting account from

Petitioner in 2012. It was his largest account , representing

approximately $5,000 per month in PetitionerÓs personal income,

and had become one of Mac PapersÓ biggest accounts in its Orange

County b ranch.

81. When taken from Petitioner, t he Moran P rinting account

was given to Mr. Miller, who, at the time, was a new sales

representative who had been wo rking for Mac Papers for just

a year.

82. Mr. Chapman testi fied that he, together with

Mr. Milleman and Mac PapersÓ vice - president of national

accounts, Jeff Harris, were very concerned about the Moran

Printing account because they were having issues with credit and

the follow up of initiatives. He testified that the decision to

reassign the account was made because o f PetitionerÓs Ðlack of

engagementÑ with the account.

83. The explanation that the Moran Printing account was

reassigned because of PetitionerÓs lack of engagement is not

cr edible. The explanation is at odds with t he import ance

Petitioner attached to the account and its growth over the years

under Petitioner .

84. After the Moran Printing account was taken, Petitioner

was given a number of smaller accounts . S ome were worthless,

and others he grew. One of those accounts he grew was the BCT

account which, after that growth, was taken from him upon his

suspension in 2017.

85. Mac Papers' purported legitimate business reasons for

reass igning those accounts and other accounts to younger

employees were not convincing.

86. Before PetitionerÓs arrest, Mr. Chapman had asked

Petitioner several times about when Petitioner was going to

retire. On at least one occasion, Mr. Chapman called Petitioner

into his office and ask, ÐWhen are you going to retire?Ñ and

stated, ÐYouÓre Mac OrlandoÓs oldest sales person.Ñ

87. On the o ccasions when Mr. Chapman spoke to Petitioner

about retirement, Petitioner felt pressured to retire.

Mr. Chapman denied pressuring Petitioner to retire. T hese

statements, taken alone, are arguably insufficient to show any

intent to discriminate . However, when taken with other evidence

of the wa y s Petitioner was treated differently upon his arrest

than a younger, similarly situated employee , together with

evidence of reassignment of PetitionerÓs accounts to younger

employees, is indicative of Mac P apersÓ intent to discriminate

against Petitioner because of his age.

88. Mac Papers' purported non - discriminatory "business"

reasons for its decisions to reassign Petitioner's accounts and

terminate Petitioner are unpersuasive in light of the

preponderance of evidence which shows that Mac Papers

discriminated against Petitioner because of his age.

CONCLUSIONS OF LAW

89. DOAH has jurisdiction over the parties and subject

matter of this proceeding . §§ 120.569 and 120.57(1), Fla. Stat.

and Fla. Admin. Code R. 60Y - 4.016(1).

90. T he legislative scheme contained in sections 760.01 Î

760.11 and 509.092 , Florida Statutes, i s known as the FCRA .

91. Section 760.10(2)(b) of FCRA prohibits discrimination

in the workplace. Among other things, the Act makes it unlawful

for an employer:

To limit, segregate, or classify employees

or applicants for employment in any way

which would deprive or tend to deprive any

individual of employment opportunities, or

adversely affect any individualÓs status as

an employee, because of such indi vidualÓs

race, color, religion, sex, pregnancy,

national origin, age, handicap, or marital

status.

§ 760.10(b)(2), Fla. Stat.

92. FCRA incorporates and adopts the legal principles and

precedents established in the federal anti - discrimination laws

specificall y set forth under Title VII of the Civil Rights Act

of 1964, as amended. See 42 U.S.C. § 2000e, et seq. Further,

as noted by the Florida Fourth District Court of Appeal in City

of Hollywood v. Hogan , 986 So. 2d 634 (Fla. 4th DCA 2008):

The Florida Civil Rights Act of 1992 (FCRA)

prohibits age discrimination in the

workplace. See § 760.10(1)(a), Fla. Stat.

(2007). It follows federal law, which

prohibits age discrimination through the Age

D iscrimination in Employment Act (ADEA).

29 U.S.C. § 623. Federal case law

interpreting Title VII and the ADEA applies

to cases arising under the FCRA.

986 So. 2d at 641 (citing Brown Distrib. Co. of W. Palm Beach v.

Marcell , 890 So. 2d 1227, 1230 n.1 (Fla. 4th DCA 2005)).

93. As developed in federal cases, a prima facie case of

discrimination may be established by statistical proof of a

pattern of discrimination, or on the basis of direct evidence

which, if believed, would prove the existence of discrimination

without inference or presumption. Usually, however, direct

e vidence is lacking and one seeking to prove discrimination must

rely on circumstantial evidence of discriminatory intent, using

the shifting burden of proof pattern established in McDonnell

Douglas Corporation v. Green , 411 U.S. 792 (1973). See

Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997).

94. Petitioner did not present any statistical or direct

evidence of discrimination, and otherwise failed to present a

prima facie case of discrimination based on disparate treatment

based upon his age. Accordingly, the McDonnell burden shifting

framework applies.

95. To prevail on an age discrimination claim, an employee

must prove that: (1) he is a member of a protected class

because of his age; (2) he was qualified for the position;

(3) he was subjected to an adv erse employment action; and

(4) his employer treated similarly situated employees of a

ÐdifferentÑ age more favorably. See Johnny L. Torrence v.

Hendrick Honda Daytona , Case No. 14 - 5506 ( Fla. DOAH Feb. 26,

2015; Fla. FCHR May 21, 2015); see also Boles v. Santa Rosa

C nty . SheriffÓs Off. , Case No. 07 - 3263 ( Fla. DOAH Dec. 5, 2007 ;

Fla. FCHR Feb . 8, 2008).

96. Once an employee establishes a prima facie claim of

age discrimination, the burden shifts to the employer to proffer

a legitimate non - discriminatory reason for its adverse

employment decision. The burden shifts back to the employee to

directly rebut and to prove that the proffered reason is prete xt

for age animus. Holifield , 115 F.3d at 1555 (11th Cir. 1997).

97. ÐDemonstrating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

permit an inference of discrimination.Ñ Holifield , 115 F.3d at

1562; cf. , Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000)

(ÐA preponderance of the evidence is Òthe greater weight of the

evidence,Ó [citation omitted] or evidence that Òmore likely than

notÓ tends to prove a certain proposition.Ñ).

98. As to the first element, it i s undisputed that

PetitionerÓs age, 67, is in an age - protected class. As for the

second element, it is undisputed that Petitioner was qualified

for the sale s representative position. Petitioner can also

satisfy the third element of a prima facie case bec ause he

suffered an a dverse employment action when he was suspended

without pay following his arrest , deprived of earnings from his

accounts during his suspension , and , thereafter , terminated.

99. Petitioner also satisfied the fourth element of a

prima facie case. Petitioner demonstrated that Mac Papers

treated a similarly situated employee , Mr. Swift, who was of a

different age class , more favorably. Johnny L. Torrence v.

Hendrick Honda Daytona , Case No. 14 - 5506 (Fla. DOAH Feb. 26,

2015; Fla. FCHR May 21 , 2015).

100. To demonstrate that similarly - situated employees

outside his protected class were treated more favorably,

Petitioner must show that a ÐcomparativeÑ employee was

Ðsimilarly situated in all relevant respects,Ñ meaning that an

employee outside of PetitionerÓs protected class was Ðinvolved

in or accused of the same or similar conductÑ and treated in a

more favorable way. Id. ; see also Burke - Fowler v. Orange Cnty.,

447 F.3d 1319, 1323 (11th Cir. 2006)) (it is required that the

quantity and quality of the compar atorÓs conduct be nearly

identical).

101. Just 11 months prior to PetitionerÓs arrest,

Mac Papers reacted much more favorably to Mr. Swift, who was a

similarly situated, although younger, sales representative

arrest ed for domestic battery . Mr. Swift , was not suspended or

given a deadline to have his criminal charges dropped in order

to keep his job. And , there is no evidence that Mr. SwiftÓs

accounts were reassigned or taken away.

102. While Mac Papers argues that Mr. Swift was different

because he never had to wear an ankle monitor, the evidence does

not support that difference as a legitimate reason for

suspending Petitioner or reassigning Petitioner's accounts to

younger employees during his suspension.

103. Although the evidence indicated that Petitioner

requeste d to work while cover ing his ankle monitor or to work

from home while it was on his ankle, both requests were denied.

104. Mac Papers argues that the reason for the denial was

because it feared that its customers Ó relations could suffer if

its customers discovered the monitor . That reason, however, was

not the real reason that Mac Papers refused PetitionerÓ s

requests. Mac Papers' unreasonable refusal to allow P etitioner

to cover the monitor while servicing accounts , or to work from

home, together with historical and contemporary reassignment of

Petitioner's accounts, demonstrates the pretext and Mac Papers'

discriminatory intent. In other words, the evidence showed that

Mac Papers Ó suggested reason for its refusal was fals e, in an

attempt to legitimize its age discrimination against Petitioner .

A reason is pretext if Ðit is shown both that the reason was

false, and that discrimination was the real reason.Ñ Brooks v.

Cnty. Comm'n of Jefferson C n ty . , Ala. , 446 F.3d 1160, 1163

(11 th Cir. 2006).

105. Moreover, the purported fear of damaging customer

relations ignores Petitioner's successful efforts in growing and

developing those account relationships over the years.

106. Mac Papers' pretextual use of the ankle monitor issue

was further demonstrated by the fact that, even though

Petitioner was able to obtain removal of the monitor a week

prior to the arbitrary deadline, Mac Papers did not allow

Petitioner to resume his job as promised. Rather, it added

further conditions in the R eturn to Work Letter , including the

reassignment of Petitioner's top five accounts, and the

impos ition of further investigation s and monitoring. The Return

to Work Letter also falsely accused Petitioner of admitting to

alcohol abuse.

107. While Mac Papers a rgues that Mr. Swift was also

required to submit to random alcohol testing and had a formal

disciplinary counseling, there is no evidence that Mr. Swift

lost accounts as a result of his arrest, or was required to sign

a document reassig n ing his top account s.

108. A s set forth in its July 7, 2017, letter to

Petitioner (Termination Letter) , Mac Papers purports that the

reason Petitioner was terminated was because he contacted one of

his reassigned accounts , as prohibited in the Return to Work

Letter. The intolerable terms in that Return to Work Letter,

however, were never agreed to by Petitioner and demonstrate Mac

Papers ' true intent to continue to discriminate against

Petitioner. The offending conditions of account reassignment to

younger employees were taken prior to Petitioner's purported

contact with a reassigned account .

109. Moreover, Petitioner was effectively terminated on

June 1, 2017, pursuant to the terms of the earlier announcement

in the April 12, 2017, Suspension Letter that he would be

terminated if his charges were not dismissed prior to June 1,

2017 . In addition , the imposition of additional conditions

after that date, in essence, operated to constructively

discharge Petitioner prior to his contact with a reassigned

account .

110. As was shown for the purported reasons for

reassigning PetitionerÓs accounts, the preponderance of the

evidence effectively rebutted Mac PaperÓs alleged reason for

terminating Petitioner, and demonstrated that it was mere

pretext.

111. As Petitioner brought this action as an

administrative proceeding pursuant to section 760.11(4)(b),

Florida Statutes, as opposed to a civil action in court pursuant

to section 760.11(4)(a), the relief under the Act to which he is

entitled is authorized in section 760.11(6), which provides in

pertinent part:

If the administrative law judge, after the

hearing, finds that a violation of the

Florida Civil Rights Act of 1992 has

occurred, the administrative law judge shall

issue an appropriate recommended order in

accordance with chapter 120 prohibiting the

practice and providing affirmative relief

from the effects of the practice, including

back pay . . . .

112. In accordance with section 760.11(6) and federal case

law, Petitioner is Ðpresumptively entitled to back pay.Ñ Weaver

v. Casa Gallardo, Inc. , 922 F.2d 1515, 1526 (11th Cir.

1991)(superseded by statute on other grounds).

113. As noted in the Findings of Fact above, based on the

partiesÓ stipulated facts, PetitionerÓs compensation at the time

of his suspension, projected over 12 months, would equal about

$112,000. $1 1 2,000 per annum equals $9,333.33 per month, or

$306.85 per diem. Therefore, b ased on the partiesÓ stipulated

fact regarding projected earnings , beginning May 1, 2017,

through the date of the heari ng, October 2, 2018, which equals

one year, five months, and two day s, PetitionerÓs back pay that

accrue d is ($112,000 X 1 year) ($ 9,333.33 X 5 months )

($306.85 X 2 days) = $112,000 $46,666.65 $613.70 = a total

of $ 159,280.35 in back pay that accrued through the date of the

hearing , plus $306.85 per diem thereafter through the date that

the Commission enters a final order in this case. See Nord v.

U.S. Steel Corp. , 758 F.2d 1462, 1473 (11th Cir. 1985)("make

whole" purpose of Title VII re quires back pay period to be

extended through date of judgment).

114. In addition, as the evidence showed that Petitioner

was wrongfully terminated because of his age, he should be

entitled to reinstatement. See § 760.11(6), Fla. Stat.;

cf. OÓLoughlin v. Pinchback , 57 9 So. 2d 788, 795 (Fla. 1st

DCA 1991)(Ðprevailing plaintiff in a wrongful discharge case is

entitled to reinstatement absent unusual circumstancesÑ)

(citations omitted). Therefore, Mac Papers should make

arrangements to employ Petitioner in a position equivalent to

his previous position in terms of account assignments with the

same potential for earnings that he held when wrongfully

terminated.

115. Section 760.11(6) further provides:

In any action or proceeding under this

subsection, the commission in its

discretion, may allow the prevailing party a

reasonable attorneyÓs fee as part of the

costs. It is the intent of the Legislature

that this provision for attorneyÓs fees be

interprete d in a manner consistent with

federal case law involving a Title VII

action.

116. As Petitioner was represented by a n attorney, as part

of his costs, he is entitled to an award of attorneyÓs fees and

it is recommended that the Commission award Petitioner his

attorneyÓs fees as part of his costs.

117. It is further recommended, but only to the extent

necessary, that the Commission remand the case for issuance of a

recommended order for factual findings to assist in determining

the amount of costs, including attorne yÓs fees, owed to

Petitioner. See , e.g. , Caimi nti v. The Furniture Enter. , LLC ,

DOAH No. 09 - 3961 (Fla. DOAH Dec. 16, 2009; Fla. FCHR

Feb. 26, 2010).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a F inal O rder:

1. Finding that Mac Papers discriminated against

Petitioner based o n PetitionerÓs age in violation of FCRA ;

2. Ordering Mac Papers to pay Petitioner $ 159,280.35 , in

back pay through the date of the hearing, October 2, 2018 , plus

$306.85 per diem thereafter through the date that the Commission

enters a F inal O rder in this case , with interest accruing on the

total amount thereof at the applicable statutory rate from the

date of the Commission's final O rder;

3 . Ordering Mac Papers to reinstate Petitioner to his

former or an equivalent position with Mac P apers with the same

potential earnings as of the time of his suspension;

4 . Prohibiting any future acts of discrimination by Mac

Papers;

5 . Awarding Petitioner his costs incurred in this case ,

including a reasonable attorneyÓs fee; and ,

6 . Remanding this case, but only to the extent necessary,

to make further factual findings for an appropriate award of

costs, including attorneyÓs fees.

DONE AND ENTERED this 19th day of February, 2019 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of February, 2019 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes, Florida Administrative Code, and federal laws are to

the current versions which have not substantively changed since

the time of the alleged discrimination.

2 / Mac Papers introduced Petitioner Ós arrest report as part o f

its evidentiary presentation. When asked to produce a

comparatorÓs arrest report, Mac PapersÓ human resources director

testified that she had obtained it, but subsequently had lost

it.

COPIES FURNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Kevin E. Hyde, Esquire

Foley & Lardner , LLP

Suite 1300

One Independent Drive

Jacksonville, Florida 32202

(eServed)

Angela G. Robinson, Esquire

Angela G. Robinson , P . A .

3610 Dubsdread Circle

Orlando, Florida 32804

(eServed)

Leonard V. Feigel, Esquire

Foley & Lardner, LLP

Suite 1300

One Independent Drive

Jacksonville, Florida 32202

(eServed)

Cheyanne Costilla, General C ounsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

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.