21-000103 Jacqueline Smith vs. Cellular Sales Services Group, Llc Status: Closed Recommended Order on Monday, December 20, 2021.

Summary: Petitioner failed to establish that Respondent discriminated against her on the basis of race, sex, or disability and/or retaliated against her for engaging in a protected activity.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ACQUELINE S MITH ,

Petitioner ,

vs. Case No. 21 - 0103

C ELLULAR S ALES S ERVICES G ROUP , LLC ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, an evidentiary hearing was held before Administrative

Law Judge (ALJ) Yolonda Y. Green of the Division of Administrative

Hearings (DOAH), on October 5 through 7, 2021 . 1

A PPEARANCES

For Petitioner: James M oten Thompson, Esquire

T hompson Legal Center, LLC

Suite 245

777 South Harbour Island Boulevard

Tampa, Florida 33602

For Respondent 2 : Robert L. Bowman, Esquire

Bryce E . Fitzgerald, Esquire

Kramer Rayson LLP

Suite 2500

800 South G ay Street

Knoxville, Tennessee 37929

1 The hearing was conducted in person. However, the court repor ter and one witness ( Peggy Vissi c chio )

attended by Zoom conference.

2 The Respondent was represented by Robert L. Bowman and Bryce E Fitzgerald who were accepted as

qualified representatives in this matter.

S TATEMENT OF T HE I SSUE

Whether Respondent discriminated against Petitioner based upon sex,

race , or disability and/or retaliated against her for engaging in a protected

activity.

P RELIMINARY S TATEMENT

On July 6, 2020, Ms. Smith filed a n employment discrimination complaint

with the Florida Commission on Human Relations (FCHR), alleging that

Respondent, Cellular Sales Services Group, LLC ( Cellular Sales )

discriminated against her based upon sex, national origin, or disability and/or

retaliated against her for engaging in a protected activity. Ms. SmithÔs

complaint allege d :

I worked as a sales representative for Cellular

Services. In May 2020 , I informed my supervisor

about my disability and about the fact that I would

require intermittent medical leave as an

accommodation. Soon thereafter my supervisor

wrote me up for not meeting my call quota for a

week. I t was a week that I missed two days for

doctor's appointments for my disability. The

supervisor knew the reas on for the missed days and

my need for accommodations but wrote me up

anyway. During the next month I went through the

process of putting in for intermittent FMLA. Two

days after submitting my FMLA information, I was

fired for pretextual reasons and in vio lation of

Cellular Services progressive discipline. My

supervisor, who is of Arabic origin also treats the

non - Arabic and female employees worse in terms

and conditions of employment and in terms of

discipline. I have complained of this disparate

treatment .

On December 21 , 2020, FCHR issued a ÑNotice of Determination of No

Cause,Ò and a ÑDetermination (No Cause)Ò finding that there was no

reasonable cause to establish that Respondent committed a discriminatory

employment practice against Ms. Smith .

On January 11, 2021 , Ms. Smith filed a Petition for Relief from a

discriminatory employment practice with FCHR, maintaining her allegations

that Respondent discriminated against her. On January 12, 2021, FCHR

transmitted the case to DOAH, for assignment to an Administrative Law

Judge for a final evidentiary hearing. This matter was initially assigned to

ALJ Jodi - Ann V. Livingstone. The case was then transferred to ALJ Brian A.

Newman. On March 10, 2021, this matter was transferred to the

undersigned.

Before being assigned to the undersigned, this case was scheduled for

hearing on April 7 through 9 , 2021 . After two continuances, the case was

rescheduled for hearing on October 5 through 7, 2021.

The parties offered joint witnesses (all Cellular Sales employe es) as

follows: Cheyenne Jenkins (Regional Director for Cellular Sales); Eric

Walkover (Area General Manager for Cellular Sales); Eric Brown (General

Manager for Cellular Sales); Hazim Abuj b ara (General Manager for Cellular

Sales); Peggy Vissicchio (Operat ions Manager for Cellular Sales); Billy

Holloway (Employee Relations Ambassador for Cellular Sales); and Abdul

Alabed (Sales Representative for Cellular Sales). The parties also offered

Joint Exhibits 1 through 53. Respondent objected to Exhibits 50 throug h 53.

Petitioner testified on her own behalf and presented the testimony of John

Barrett.

A partial portion of the transcript was filed with the D OAH on October 27,

2021. Subsequently, on November 2, 2021, the remaining volumes of the

transcript w ere filed. Thus, t he five - volume Transcript of the final hearing

was filed with DOAH on November 2, 2021. The deadline for filing p rop osed

recommended o rders (ÑPROsÒ) was November 12, 2021 . Both parties timely

filed P ROs , which have been considered by the unde rsigned in preparation of

this Recommended Order.

Unless otherwise indicated, all statutory references are to the codification

of the Florida Statutes (2019) in effect at the time of the alleged

discriminatory acts.

F INDINGS OF F ACT

Based on the testim ony and exhibits admitted at the final hearing, the

following Findings of Fact are made.

PetitionerÔs Background

1 . At all times material to this matter, Petitioner identified as a

Caucasian woman. In February of 2020, Ms. Smith was diagnosed with

Hashimo toÔs disease. 3 Ms. SmithÔs HashimotoÔs disease, when active, causes

her to experience debilitating fatigue, gastric problems, muscle aches,

headaches, and hair loss. Her condition, when active, substantially limited

several of Ms. SmithÔs major life activi ties , including the ability to function on

even a basic level.

2 . Ms. Smith testified that she requires treatment from a doctor to

manage and minimize the most debilitating aspects of her condition .

3 . Ms. Smith was hired by Cellular Sales in 2016 , as a sales

representative. In October 2018, Ms. S mith moved to Florida and was

transferred to a Cellular Sales location in Florida. In December 2019,

Ms. Smith was transferred to the Cellular Sales location in the Brandon

Town Center Mall (Brandon Mall) in Bran don, Florida. Ms. Smith was then

promoted to assistant store manager at th at location.

4 . As a sales representative, Ms. Smith was responsible for sales, client

services, and developing sales lead s . She had the same responsibilities as a

store lea d .

3 HashimotoÔs disease is a condition that causes oneÔs immune system to attack oneÔs thyroid.

5 . Du ring Ms. SmithÔs employment with Cellular Sales, she never received

disciplinary action.

Cellular Sales Policies and Procedures

6 . Respondent, Cellular Sales , sells Verizon Wireless products, services,

and accessories.

7 . The Cellular Sales Employee Han dbook contains a Pyramid of Ethics,

which prohibits employees from Ñdiscriminating, offensive, abusive, or

harassing behavior and/or languageÒ against an other employee and prohibits

Ñretaliation against those who report suspected violations of law or Compa ny

policy.Ò Cellular Sales also maintains a n o pen - d oor p olicy , which directs

employees to notify a supervisor, contact the c orporate h uman r esources

d epartment, or submit a complaint via the Report It Hotline, if they have any

concerns about their employme nt or policy violations .

8 . Cellular Sales also maintains an Equal Employment Opportunity policy

which prohibits discrimination based , among other characteristics , on sex,

national origin, disability. The Individuals With Disabilities policy directs

emplo yees to notify both their supervisor and the c orporate h uman r esources

d epartment of any reasonable accommodation requests so that they can be

addressed by the human resources d epartment.

9 . Ms. Smith received and signed for a copy of the Employee Handbo ok

when she began working for Cellular Sales in 2016 and received an updated

copy of the handbook in 2017. She also received annual training on the

c ompanyÔs policies, including those related to the prevention of

discrimination . All managers that were invo lved in this matter also receive d

annual training on Cellular SaleÔ s policies.

Brandon Mall Managers

10 . Mr. Abuj b ara identifies as a male of Arab national origin . Prior to

working at the Brandon Mall, Ms. Smith worked with Mr. Abuj b ara at a

Cellular S ales location in the Central Florida market . Mr. Abuj b ara

became the store lead at the Brandon Mall store at the end of 2019. When

Mr. Abuj b ara became the Brandon Mall Store Manager, he selected the s ales

r epresentatives that he wanted on his team, which i ncluded Ms. Smith, an

African - American female, and another Caucasian female. Mr. Abuj b ara also

promoted Ms. Smith to be the a ssistant t eam l ead . Mr. Abuj b ara did not

select a male of Arab origin for the position. Mr. Abuj b ara was later promoted

to store ma nager at the Brandon Mall. During Mr . Abuj b ara Ôs tenure as store

manager , Ms. Smith received scheduling privileges as a result of her position

as store lead.

11 . In June 2020, Mr. Abuj b ara was promoted to general manager . As a

result of Mr. Ab uj b araÔs pr omotion, Mr. Alabed became interim store lead for

the last two weeks of June 2020.

Business Practice for Cellular Sales During COVID - 19

12 . At some point , the Brandon Mall store closed for a period of time due

to the COVID - 19 pandemic. Employees were gi ven the option to accept

COVID - 19 leave pay during that time. Ms. Smith accepted the paid leave.

13 . Mr. Walkover testified that t he pandemic changed the C ellular Sales

business , especially at the Brandon Mall location, because it could not depend

on tra ffic walking in the door. It required Cellular Sales to be creative in the

way it drove traffic to its locations.

14 . Cellular Sales implemented new performance standards, including a

goal for s ales r epresentatives to make a minimum number of weekly phon e

calls. Mr. Crutcher , the r egional d irector , e - mailed the C entral Florida

market about the new sales calls standards. He instructed s ales

r epresentatives that Ñ [e] very sales rep will be responsible to make at least 10

calls each week Ï this will be tracke d and credited weekly to keep our leads

list from running dry.Ò The new performance standard was effective starting

May 1, 2020 . Ms. Smith acknowledged that she receiv ed th e email. Notably,

the email did not indicate which day would mark the end of the wee k.

15 . All s ales r epresentatives were required to make the calls through a

program called RingCentral, a voiceover IP phone application that allows

Cellular Sales to track and monitor calls. The s ales r epresentatives could use

RingCentral to make calls ou tside the store as well.

16 . RingCentral also has a built - in team chat allowing communications

among the sales team. Mr. Abuj b araÔs used the RingCentral chat feature to

communicate with his sales team at the Brandon Mall .

17 . On May 16, 2020, Mr. Abuj b a ra sent at least two specific messages to

his sales team using RingCentral which stated:

First Message:

Ñ[t]he market - wide standard for outbound phone

calls through ring central from our leads app is

10 per week. These will be monitored weekly and

write u ps will be issued at the end of the week for

all that do not meet this minimum expectation of

10 calls.Ò

Second message:

ÑThis week. Calls are due by Friday.Ò

18 . On May 21, 2020, Mr. Abujbara sent a reminder message that stated:

ÑMinimum expectation s/n10 calls for the week due tomorrow/n Total of 40 by

end of month due on 31st Any issues with leads or powerapp reach out to Mo

Khalel and communicate with me. Ò

19 . In addition to the messages , two other members of the Brandon Mall

sales team testified that Mr. Abuj b ara also announced the Friday deadline in

a meeting.

20 . Ms. Smith testified that she did not receive the RingCentral messages

that the calls were due on Fridays .

21 . The undersigned finds that there is competent substantial evidence to

de monstrate that Mr. Abuj b ara provided timely and sufficient notice, using

the method of communication commonly used by his team, that the sales call

deadline was Friday of each week.

Ms. SmithÔs Work Performance and Discipline History

22 . Ms. Smith mad e 10 calls for the first, second, and fourth weeks of May 2020.

In these weeks she worked two shifts, three shifts, and four shifts,

respectively. However, she made seven calls the third week of May 2020.

Thus, she failed to meet the minimum 10 calls goal by Friday for the third

week of May 2020.

23 . Ms. Smith test ified that she missed work days the third week of

May 2020 because she had ÑdoctorsÔ appointments.Ò Ms. Smith testified that

she had a chiropractor appointment that week and that she regularly gets

blood work . The evidence offered at hearing was no t sufficient to rebut her

testimony and thus, it is credited. However, even if Ms. Smith had an

appointment the third week of May, there was no credible evidence that

anyone else at Cellular Sales had knowledge that she had an appointment

the third week or that she missed her sales goals as a result of the

appointment .

24 . On May 23, 2020, Mr. Abujbara sent Ms. Smith an e - mail with a

Disciplinary Action Form . The disciplinary action was for insubordin ation in

a meeting and for failing to make the required minimum 10 calls the third

week of May 2020. 4 Ms. Smith was then placed on a performance plan which

stated the following, Ñ[g] oing forward we need to make sure that you are

attaining minimum standard for phone calls on a weekly basis È .Ò

4 The third week in May 2020 ended on May 22, 2020.

25 . After receiving the email containing the disciplinary action on May 23 ,

Ms. Smith disputed the basis for the action. The text exchange between

Ms. Smith and Mr. Abujbara was as follows:

Ms. Smith: Give me a cal l when you can. I have 9

completed calls for the week

Mr. Abujbara: Hey IÔm out of the office until

Monday for religious purposes. I will follow - up with

you Monday when I return.

Ms. Smith: I will accept the write up for the calls .

But I will be having extensive conversation with

you, Eric Brown or Eric Walkover regarding what

is happening at this store. So please get back to me

when you can.

26 . Ms. Smith then texted Mr. Brown on the same date. The text exchange

in pertinent part was as follows :

Ms. Smith: Also, are calls due on Friday or By end

of day Saturday? Since the week technically ends

on Saturday.

Mr. Brown: Technically the original email was sent

Friday. It should have been discussed at your draft

as well that day so we have been running it Friday

to Friday.

Ms. Smith: Okay. I made 8 calls this weeks because

we got slammed yesterday as I was finishing them.

So to avoid a write up I was wondering if I could

have today to complete them.

27 . Ms. S mith never told Mr. Abuj b ara or Mr. Brown th at the rea son for

missing the call goal was due to her medical condition or related

appointments, discrimination , or retaliation .

28 . Ms. Smith also disputed the disciplinary action with Mr. Walkover

stating that she got her calls done by Saturday and sh ould not have received

the disciplinary action . Mr. Walkover told her that she missed the deadline ,

which was Friday . Like with Mr. Abujbara and Mr. Brown , Ms. Smith also

never told Mr. Walkov er that she did not meet her sales call goal because she

had a m edical appointme nt, nor did she complain that the disciplinary action

was based on discrimination .

2 9. Similar to the failure to make calls, Ms. Smith also contested the

insubordination claim. Mr. Abujbara described her insubordination and

unprofessiona l conduct that stemmed from her behavior during a team

meeting where she express ed her disagreement 5 with the new ÑchummingÒ

policy. ÑChummingÒ refers to the process of greeting and engaging clients in

front of the store to atte mpt to bring them in for sal es. Each sales

representative working on that day would share in the commission for that

sale.

30 . The new chumming policy for the Brandon Mall store permitted a

sales r epresentative who brought in a customer and closed a sale to keep the

commission for t he sale. Thus, the other sales r epresentatives would not

share the commissio ns for that sale. Mr. Brown created the policy because

the storeÔs numbers were struggling with sales an d he wanted to incentivize

the sales representatives to attract customers t h at otherwise wou ld not shop

in the store.

31 . It was known amongst Ms. SmithÔs coworkers that she did not like

c humming and did not chum often. More importantly, s he never requested an

accommodation for chumming due to a disability or medical condition.

Reading Book While at Work

32 . In June 2020, Mr. Abujbara was promoted to g eneral m anager and

M r. Alabed became the interim store lead at the Brandon Mall store.

Ms. Smith wanted Mr. Alabed to be the s tore m anager of the Brandon Mall

store. Mr. Alabed t estified that during the time he was the interim store lead,

he had no knowledge that Ms. Smith had an autoimmune disease.

5 PetitionerÔs former coworker, Mr. Sanchez confirmed that she was disrespectful to

Mr. Abujbara in the meeting by interrupting him and complaining about the rule.

33 . On June 19, 2020 , Mr. Alabed observed Ms. Smith reading a book on

the sales floor while she was on duty. Instead of sending her home,

Mr. Alabed directed her to put the book away and to begin Ñ chum ming . Ò

Ms. Smith went into the mall area to chum but then , returned to reading her

book. Given Ms. SmithÔs failure to follow Mr. AlabedÔs instructions,

Mr. Al abed then took a picture of M s. Smith reading, sent it to Mr. Brown ,

and notified him of Ms. SmithÔs actions.

34 . The following day, on June 20, 2020 , for the second time, Mr. Alabed

observed Ms. Smith re ading a book on the sales floor while on duty. On this

day, customers were in th e store. Mr. Alabed took a picture of Ms. Smith

reading on that day and sent it to Mr. Brown .

35 . Mr. Brown called Mr. Walkover, bo th times he learned of Ms. SmithÔs

behavior, to inform him that Ms. Smith was reading a book on the sales floor

and was not pa rticipating in team activities. Mr. Brown also sent the pictures

of Ms. Smith reading a book to Mr. Walkover.

36 . Mr. Walkover contacted Mr. Jenkins to seek further advice regarding

Ms. SmithÔs actions . Mr. Jenkins testified that Mr. Walkover related t o him

that a sales r epresentative was observed reading a book two days in a row on

the sales floor, and that she was on a performance plan for not meeting phone

call requirements. Mr. Walkover also sent the pictures to Mr. Jenkins that he

received from Mr. Alabed .

37 . Mr. Walkover was concerned that Ms. Smith was not working while

sitting at the desk reading a book. He believed her reading a book was also

dist racting to the rest of the team. He was also concerned that she had

previously missed the minimum phone call expectations, for which she was

on a performance plan. Mr. Jenkins told Mr. Walkover he would invest igate

Ms. SmithÔs actions. Mr. Jenkins confirmed that Ms. Smith had b een written

up less than 30 days earlier for not making her minimum phone ca lls and

that a security video showed her reading a book on the sales flo or with

customers in the store. Mr. Jenkins showed Mr. Walkover the security video.

The video, from June 20, 2020 , clearly shows Ms. Smith reading a book at her

desk , while customers w ere in the store and other employees were working.

38 . After his investigation, Mr. Jenkins determined that Ms. Smith Ôs

actions warranted termination. To ensure he was making the appropriate

decision, Mr. Jenkins decided to speak with the corporate h uman r esources

d epartment. Mr. Jenkins and Mr. Walkover called Ms. Calvert and explained

the facts related to Ms. Smith, i.e. , the employee was on a performance plan,

reading a book twice while on duty and had a medical condition. Ms. Calvert

affirmed Mr. Jenk inÔs decision to terminate Ms. Smith because the decision

was related to her work performance and behavior and not related to her

medical condition.

39 . Mr. Jenkins shared his decision with M r. Walkover and ultimately,

Mr. Brown was directed to meet with Ms. Smith to terminate her. On

June 24, 2020 , Mr. Brown met with Ms. Smith to notify her that she was

terminated and presented her with paperwork outlining the reasons for her

termination.

4 0 . Ms. Smith opposed her termination on the basis that other empl oyees

engaged in non - work - related activities on the sales floor. She testified tha t

other employees played games on their phones or watched movies.

4 1 . Mr. Walkover testified that sales r epresentatives are expected to

either be selling phones or gathering sales leads while at work. If they do not

have a client in front of them, their job is to do what they can to try to draw

in a client. Sales representatives were not permitted to watch movies, read

book s , or play games. He did note, however, that on occas ion , employees were

permitted to use their phones to direct business to the store.

4 2 . Ms. Smith admits that she openly read a book to learn more about her

medical condition while at work on two separate days.

Ms. SmithÔs Disability

4 3 . The record is no t clear regarding when Ms. Smith was first diagnosed

with a thyroid condition. However, her medical records reflect a doctorÔs visit

of April 16, 2020, in which Ms. Smith was diagnosed with a thyroid condition.

Ms. Smith testified that she notified her sup ervisors about her medical

cond ition and about her periodic need to go to doctorsÔ appointments in order

to keep her medical condition under c ontrol. Mr. Alabed testified that he was

not aware of Ms. SmithÔs condition.

4 4 . Ms. Smith testified that she was diagnosed with HashimotoÔs disease,

and, a few months later, w ith Lupus. Throughout her employment,

Mr. Abujbara gave Ms. Smith time off for medical appointments and other

reasons, including for a car accident. At some point, Ms. Smith informed

Mr. Abujba ra that she thought she had Lupus and may need some time for

doctorsÔ appointments. Mr. Abujbara asked if Ms. Smith needed shifts off,

said he would help her get them covered, and to let him know of anything

else he could do.

4 5 . Mr. Abujbara then contac ted Mr. Jenkins to inform him they had a

s ales r epresentative who was diag nosed with L upus and needed guidance

with how to assist her.

4 6 . Mr. Jenkins instructed Mr. Abujb ara to contact Mr. Holloway, a sales

r epresentative who also serves as the Employee Relations Ambassador. He is

responsible for talking to employees about their well - being and helping them

get counseling services or F amily Medical Leave Act (F M LA ) . Mr. Abujbara

reached out to Mr. Holloway to inform him that Ms. Smith had some health

condi tions and may need assistance with FMLA. Mr. Holloway told

Mr. Abujbara to provide Ms. Smith with his (Mr. HollowayÔs) contact

information to reach out to him so they could start the process for FMLA.

4 7 . The record contains extensive testimony about refe rring Ms. Smith for

FMLA assistance. However, there is no mention about assistance for

Ms. Smith regarding a request for a reasonable accommodation. Ms. Smith

testified that she did not request FMLA ; she was seeking a reasonable

accommodation due to her di sability. The undersigned finds Ms. Smith

request ed a reasonable accommodation in the form of intermittent leave for

doctors Ô appointments to treat her condition.

4 8 . Mr. Holloway e - mailed Ms. Vissicchio, who assists with FMLA

requests. O n June 19, 2021, Ms. Vissicchio e - mailed Ms. Smith, requesting

information for her leave. Ms. Smith responded, ÑI do not currently need

days.Ò

49 . On June 22, 2021 , Ms. Vissichio followed up with an email as follows:

ÑI didnÔt file anything yet since you said you

curren tly do not needs days off. Once I file they will

require a d r evaluation and note and the

paperwork filled out. Please let me know when that

is all done and then I can put you in for

intermittent FMLA in case future days are

needed.Ò

5 0 . Ms. Smith repl ied to Ms. Vissichio as follows:

ÑThe days off most likely will not be in bulk. This is

more of a long term condition. Will be seeing the

doctors again these next two weeks. I can have

them fill out the paper work. The days I need off

this month have been covered.Ò

5 1 . Ms. Vissicchio testified that she did not file anything at that point

because Ms. Smith was not requesting time off and the Cellular SalesÔ third -

party administrator that processes FMLA requests would deny a request

without receiving supp orting paperwork within 15 days of submitting the

request .

5 2 . Ms. Smith did not complain to Ms. Vissic c hio, who works in human

resources, about discrimination based on her race, sex, or disability.

Proposed Comparators

5 3 . At the hearing, Ms. Smith offe red Ameer Salti and Mohammed Z a rour

as comparators to establish that she was treated differently than other

employees.

5 4 . Mr. Salti was a sales representative with Cellular Sales. He received

disciplinary action for insubordination because he refused to assist a client.

He was instructed to go h ome for the remainder of his shift , on December 30,

2019. On M arch 17, 2020, Mr. Salti was disciplined a second time for making

a client wait on an appointment, leaving his work station messy , and coming

to work i n flip flops. He was suspended for two weeks. On November 18,

2020, Mr. Salti was terminated for a failed drug screen . Cellular Sales

maintains a drug - free workplace policy that subjects an employee to

immediate termination for violation of the policy .

5 5 . Mr. Zarour , also a sales representative, was disciplined and

terminated as well. He was disciplined on June 6, 2020 , for failing to make

40 calls in May 2020 . The evidence established that Mr. Zarour made 18 calls

the third week of May. However, he failed to meet t he required 40 calls per

month. The simple math establishes that at least on one week , Mr. Zarour

failed to meet the 10 call s minimum. However, t he competent substantial

evidence did not establish whether he failed to meet the minimum the fourth

week (at the end of the month) or a different week. Thus , the evidence is not

sufficient to establish that he was not disciplined for his failure to meet the

minimum weekly call goals. However, the evidence did establish that he was

disciplined for failing to meet required minimum sales calls . O n July 27,

2020, Mr. Za r our was terminated by Eric Brown and Eric Walkover for policy

violations, not dropping cash, not dropping trades , and failure to meet

minimum call goals.

5 6 . Similar to Ms. Smith, Mr. Z arour was disciplined for failing to meet

the minimum sales calls. However, there were no other similarities in

behavior as Ms. Smith. In fact, n either of the offered comparators was

observed reading a book two days in a row on the sales floor.

5 7 . There was di scussion in PetitionerÔs PRO pertaining to progressive

discipline. While progressive discipline was not a Cellular Sales policy,

Mr. Jenkins testified that Ms. Smith Ôs behavior warranted termination.

Ultimate Findings of Fact

5 8 . Ms. Smith admit ted she n ever complained about discrimination or

retaliation to the h uman r esources d epartment or the Report It Hotline. She

also admitted that she did not complain to anyone at Cellular Sales regarding

discrimination or retaliation, or that a m ale of Arab national origin , or a non -

disabled employee received better treatment .

59 . Ms. Smith admitted that she was reading a book on the sales floor on

two separate, consecutive days.

6 0 . The evidence offered does not support a finding that Cellular Sales

treated Ms. Smi th differently than male s of Arab national origin , or disabled

employees.

6 1 . The evidence offered at hearing did not support a finding that Cellular

Sales retaliated against Ms. Smith for engaging in a protected employment

action.

6 2 . The evidence demonst rated that Ms. Smith was terminated for failing

to meet workplace performance goals and reading a book on the sales floor on

two days while on duty.

C ONCLUSIONS OF L AW

6 3 . DOAH has jurisdiction over the parties and subject matter in this

case. §§ 120.569 and 120.57, Fla. Stat.

6 4 . Section 760.10(1) (a) states that it is an unlawful employment practice

for an employer to fail or refuse to hire or otherwise discriminate against an

individual on the basis of handicap , sex, or race .

6 5 . Section 760.10(7) prohib its retaliation against those who oppose

unlawful discriminatory employment practices.

6 6 . FCHR and Florida courts have determined that federal discrimination

laws should be used as guidance when construing provisions of

section 760.10. See Valenzuela v. G lobeGround N. Am., LLC , 18 So. 3d

17 (Fla. 3d DCA 2009); Brand v. Fla. Power Corp. , 633 So. 2d 504, 509 (Fla.

1st DCA 1994).

6 7 . Discriminatory intent can be established through direct or

circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir.

1999). Direct evidence of discrimination is evidence that, if believed,

establishes the existence of discriminatory intent behind an employment

decision without inference or presumption. Maynard v. Bd. of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003).

6 8 . As there is no direct evidence of discrimination in this case, Ms. Smith

must rely on circumstantial evidence of discriminatory intent to prove her

claims. The shifting burden of proof pattern established in McDonnell

Douglas Corporation v. Gre en , 411 U.S. 792 (1973), sets forth a three - part

analysis: (1) First, Petitioner has the burden of proving a prima facie case of

discrimination ; (2) If Petitioner sufficiently establishes a prima facie case, the

burden shifts to Respondent to "articulate s ome legitimate,

nondiscriminatory reason" for its action ; (3) If Respondent satisfies this

burden, Petitioner has the opportunity to prove that the legitimate reasons

asserted by Respondent are really a pretext. See Valenzuela ,

18 So. 3d at 22 (gender disc rimination claim).

69 . Petitioner must establish a prima facie case by a preponderance of the

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

on other grounds by , Lewis v. City of Union City, Ga , 918 F.3d 1213,

1224 (11th Cir. 2019); see also § 120.57(1)(j), Fla. Stat. ("Findings of fact shall

be based upon a preponderance of the evidence, except in penal or licensure

proceedings or except as otherwise provided by statute and shall be based

exclusively on the evidence of record and on matters officially recognized.").

This simply requires evidence that more likely than not tends to prove a

certain proposition .

Establishing Discrimination

Disparate Treatment

7 0 . Ms. Smith argues she was treated differently than other sales

re presentatives . She claims she was terminated due to her race, sex, and

disability. She further claims that non - disabled, male Arab sales

representatives were not disciplined for failing to meet sales calls or for

engaging in non - work - related activities whi le at work.

7 1 . This "disparate treatment" claim is the most easily understood type of

discrimination. See Schultz v. Royal Caribbean Cruises, Ltd. , 465 F. Supp. 3d

1232, 1268 (S.D. Fla 2020) (citations and quotations omitted). Disparate

treatment occurs when an employer treats an employee less favorably than

others because of his or her race, color, religion, sex, or national origin. Id .

7 2 . To establish a prima facie case of disparate treatment, Ms. Smith

must demonstrate she:

(1) belongs to a protecte d class;

(2) suffered an adverse employment action;

(3) was qualified to do her job; and

(4) was treated less favorably than similarly

situated employees outside of the protected class .

Alvarez v. Lakeland Area Mass Transit Dist. , 2020 WL 3473286, at *1 0 (M.D.

Fla. June 25, 2020).

7 3 . The U.S. Supreme Court reiterated the general meaning of gender

discrimination and specifically addressed the standard for disparate

treatment cases:

[T]he question becomes: What did Ñ discriminate Ò

mean in 1964? As it tur ns out, it meant then

roughly what it means today: Ñ To make a difference

in treatment or favor (of one as compared with

others). Ò Webster's New International Dictionary

745 (2d ed. 1954). To Ñ discriminate against Ò a

person, then, would seem to mean treatin g that

individual worse than others who are similarly

situated. See Burlington N. & S. F. R. Co. v. White ,

548 U.S. 53, 59, 126 S.Ct. 2405, 165 L.Ed.2d

345 (2006). In so - called "disparate treatment" cases

like today's, this Court has also held that the

dif ference in treatment based on sex must be

intentional. See , e.g., Watson v. Fort Worth Bank &

Trust , 487 U.S. 977, 986, 108 S.Ct. 2777,

101 L.Ed.2d 827 (1988). So, taken together, an

employer who intentionally treats a person worse

because of sex Ð such as by firing the person for

actions or attributes it would tolerate in an

individual of another sex Ð discriminates against

that person in violation of Title VII. (emphasis

added).

Bostock v. Clayton Cty., Ga. , 140 S. Ct. 1731, 1740 (2020) (holding sexual

ide ntity discrimination is actionable under Title VII) .

7 4 . There is no dispute as to the first three element s. Regarding the first

element, Ms. Smith is female . As to the second element, there is no question

that termination for employment is an adverse em ployment action . T hird,

there was no dispute that she was qualified to perform her job.

7 5 . The remaining question is whether she was treated less favorably

than similarly - situated male employees.

7 6 . To meet the fourth "comparator" element of a dispar ate treatment

claim, Petitioner must show she is similarly situated in all relevant respects

to the other sales representatives and that these comparators were given

preferential treatment. Woods v. Cent. Fellowship Christian Acad. , 545 F.

App'x 939, 945 ( 11th Cir. 2013).

7 7 . As an initial matter, the Cellular Sales representatives with whom

Ms. Smith compares herself are males of Arab national origin . However,

t here is insufficient evidence any sales representatives were given

preferential treatment , incl uding Arab males. Under Mr. Abuj b ara all sales

representatives were required to meet the 10 calls per week and 40 calls per

month minimal standard. All employees were responsible for sales, client

services, and developing sales leads. There was no evidence that the offered

comparators, Mr. Salti or Mr. Zarour , refused to perform a required duty, but

were not disciplined . Similar to Ms. Smith, Mr. Zauror was disciplined for

failing to meet the minimal sales call performance standard. Mr. Salti was

discipline d for insubordination because he refused to assist a client and was

disciplined a second time for making a client wait on an appointment, leaving

his work station messy, and coming to work in flip - flops. Mr. Salti was

terminated for violating the drug - free workplace policy by testing positive on

a drug test. Moreover, t here was no evidence offered that either comparator

engaged in reading a book in the store on two consecutive days. Therefore,

Ms. Smith cannot establish that anyone else was treated better t han she was

treated.

7 8 . Even if Ms. Smith could show Cellular Sales treated non - disabled, or

male s of Arab national origin better than her , she would still have to show

the treatment was intentionally based on her gender , race , and/or disability .

There i s no evidence that Mr. Abuj b ara Ôs or Mr. WalkoverÔs decisions to

discipline and , ultimately, terminate Ms. Smith was based on race , gender , or

disability .

79 . Because she cannot show that the proposed comparator sales

representative s were given preferenti al treatment, Ms. SmithÔs disparate

treatment claim fail s .

Disability Discrimination

8 0 . Disability discrimination claims under the Florida Civil Rights Act are

analyzed under the same framework as federal ADA disability claims.

D'Angelo v. Conagra Foods, Inc. , 422 F.3d 1220, 1224 n.2 (11th Cir. 2005).

8 1 . Ñ In order to demonstrate a prima faci e case, under the ADA,

[ Petitioner ] must show that: (1) [ s ] he has a disability; (2) [ s ] he is a "qualified"

individual; and (3) def endant discriminated against [ her ] b ecause of her

disability. Ò Greenberg v. BellSouth Telecommunications, Inc. , 498 F.3d 1258,

1263 (11th Cir. 2007); Ellis v. England , 432 F.3d 1321, 1326 (11th Cir. 2005).

8 2 . The burden then shifts to Respondent to articulate a legitimate, non -

discriminator y reason for p etitionerÔ s termination. If Respondent is able to do

so, the burden then returns to Petitioner , who must show that Respondent 's

reason is unworthy of credence and a mere pretext for discrimination. See

Cleveland v. Home Shopping Network, Inc. , 369 F.3d 1189, 1193 (11th Cir.

2004).

8 3 . In the instant case, Petitioner provided no direct evidence of any type

of discrimination. Accordingly, the burden - shiftin g analysis is appropriate.

Based on the evidence presented at hearing, Petitioner proved t hat she is an

individual with a disability , i.e. , H a shimotoÔs disease and Lupus . Petitioner

also proved that she is qualified for the job , and Respondent did not dispute

this fact. However, Petitioner failed to demonstrate the third prong of the

prima faci e case , i.e. , that she was discri minated against "because of" her

disability.

8 4 . Notably, Cellular Sales worked with Petitioner to provide a reas onable

accommodation that would have allowed her the flexibility she needed to

come to work as her medical con dition allowed. However, the process had not

been fully realized as she was terminated. Despite seeking an accommodation

for intermittent FMLA leave, Petitioner failed to meet minimum performance

goals and expectations of any reasona ble employer, i.e. , not reading a book in

the presence of customers instead of developing sales.

RespondentÔs Offered Legitimate Business Reason for Action

8 5 . A ssuming arguendo that Petitioner demonstrated all elemen ts of the

prima facie case, Cellular Sales offered a legitima te, non - discriminatory

r eason for Petitioner's termination . Petitioner's failure to meet her minimum

sales call s goal and reading a book two consecutive days during work hours ,

while customers were present , was unacceptable.

Pre - text

8 6 . Petitioner claims this is a pretext for discrimination. However,

Petitioner offered no persuasive evidence of this, and no specific information

about the identity of an y similarly - situated individual who failed to meet

sales calls goals and read a book on two consecutive da ys while on duty, who

were not disciplined. Petitioner's speculation and personal belie f concerning

the motives of Cellular Sales are not sufficient to establish intentional

discrimination. See Lizardo v. Denny's, Inc. , 270 F.3d 94, 104 (2d Cir.

2001)( Ñ [P] laintiffs have done little more than to cite to their mistreatment

and ask the court to conclude it must have been related to their race. This is

not sufficient. Ò ). While she points to Mr. Salti as being similarly - situated,

Mr. SaltiÔs behavior was differe nt from Ms. Smith Ôs . Moreover, the decisions

Petitioner alleges to be disparate were made by two different supervisors at

different levels. Thus, she and Mr. Salti are not similarly situated. See

Mitchell v. Young , 309 So. 3d 280, 285 (Fla. 1st DCA 2020) (a lleged

comparators invalid where they Ñhad different supervisors È or were of a

different rank È when they committed their misconduct . Ò) . Even with respect

to Petitioner Ô s complaints about other employees who engaged in activities

that were unrelated to w ork, Respondent offered plausible and credible

explanations for employees using their electronic devices on the sales floor for

work - related matters. Ms. Smith admitted that she was reading a book about

her condition. Petitioner openly reading her book on the sales floor while

customers are present on two consecutive days for personal reasons is clearly

not work - related.

8 7 . Petitioner failed to demonstrate that s he was d iscriminated on the

basis of her disability , sex, or race with regard to her disciplin e or her

termination.

Retaliation

8 8 . Section 760.10(7) prohibits retaliation in employment as follows:

(7) It is an unlawful employment practice for an

employer ... to discriminate against any person

because that person has opposed any practice

which i s an unlawful employment practice under

this section, or because that person has made a

charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing

under this section. (emphasis added).

89 . The burden of proving retaliation follows the general rules enunciated

for proving discrimination. Reed v. A.W. Lawrence & Co. , 95 F.3d 1170,

1178 (2d Cir. 1996). As discusse d above, Petitioner can meet her burden of

proof with either direct or circumstantial evidence.

9 0 . P etitioner did not introduce direct evidence of retaliation in this case.

Thus, Petitioner must prove h er allegation of retaliation by circumstantial

evidence. Circumstantial evidence of retaliation is subject to the burden

shifting framework established in McDonnell Douglas .

9 1 . To establish a prima facie case of retaliation, Petitioner must

show: (1) that s he was engaged in statutorily protected expression or conduct;

(2) that s he suffered an adverse employment action; and (3) that there is

some causal relationship between the two events. Holifield v. Reno , 115 F.3d

1555, 1566 (11th Cir. 1997). The protected activity must be the "but for"

cause of the adverse action. Univ. of Texas Sw. Med. Ctr. v. Nassar , 570 U.S.

338 (2013). Petitioner must prove that the adverse action would not have

occurred in the absence of the protected activity, which is the highest

standard of causation.

9 2 . Petitioner alleges s he w as retaliated against due to her request for

intermittent time off for treatment appointments rela ted to her disability,

i.e. , H a shimotoÔ s disease and Lupus . As stated in the Findings of Fact herein,

PetitionerÔs request is found to be a request for a reasonable accommodation

for her disability, and , thus, the request constituted protected activity.

9 3 . Clearly, Petitioner suffered "advers e action" by virtue of her discipline

and discharge.

9 4 . However, Petitioner failed to prove any causal connection between her

request for an accommodation and her adverse action. The evidence

presented shows th at Pe titionerÔs request for time off for treatment

appointments for her condition w as in the process of being addressed before

she terminated. She was permitted to take time for appointments when

requested. Ms. Vissi c chio allowed Petitioner to provide additiona l information

from her treating physician before taking the next step in the process for

FMLA to avoid denial.

9 5 . The evidence shows that Mr. Alabed became PetitionerÔs supervisor in

mid - June 2020 . He credibly testified that he was not aware of her healt h

condition. During the few short weeks Mr. A labed was her superviso r , she

was observed reading a book, while customers were present and not engaging

in team activities to generate sales. Interestingly, this conduct took place

during the same time that she was seeking assistance related to her

condition. However, there was n o evidence offered that Ms. Smith report ed

any alleged discrimination related to her disability prior to her during that

process or prior to her discharge .

9 6 . Petitione r presented insu fficient evidence that her disability was the

"but for" cause of any perceived retaliation. Instead, there was sufficient

evidence to establish that she failed to meet work performance measures, and

was reading a book and not working while on duty.

9 7 . B ased upon the evidence and testimony offered at hearing, Petitioner

failed to establish a prima facie case against Cellular Sales for either

disability, sex, or race discrimin ation or retaliation for opposing an unlawful

employment practice. Therefore, the employment discrimination charge

should be dismissed, and none of the damages claimed by Pet itioner should

be awarded to her .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order finding that Petitioner, Jaqueline Smith , did not prove that

Respondent, Cellular Sales Services Group, LLC , committed an unlawful

employment practice against her; and dismissing her Petition for Relief from

an unlawful employment practice .

D ONE A ND E NTERED this 20 th day of December , 2021 , in Tallahassee,

Leon County, Florida.

S

Y OLONDA Y. G REEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20 th day of December , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk James Moten Thompson, Esquire

Florida Commission on Human Relations Thompson Legal Center, LLC.

Room 110 Suite 245

4075 Esplanade Way 777 South Harbour Island Boulevard

Tallahassee, Florida 32399 - 7020 Tampa, Florida 33602

Samuel J. Horov itz, Esquire Robert L. Bowman, Esquire

Rogers Towers, P.A. Kramer Rayson L LP

Suite 1500 Suite 2500

1301 Riverplace Boulevard 800 South Gay Street

Jacksonville, Florida 32207 Knoxville, Tennessee 37929

Lori S. Patterson, Esquire Bryce Ellsworth Fitzgerald, Esquire

Rogers Towers, P.A. Kramer Rayson LLP

Suite 1500 Suite 2500

1301 Riverplace Boulevard 800 South Gay Street

Jacksonville, Florida 32207 Knoxville, Tennessee 37929

Stanley Gorsica, Gen eral Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit w ritten 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.