STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD N. HERMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3554

)

COUNTY OF PASCO, )

)

Respondent. )

) JOSEPH T. RACHEL, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3600

)

COUNTY OF PASCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cases on May 16, 1985, at Dade City, Florida.

APPEARANCES

For Petitioner: Harold N. Herman, pro se

4840 North 41

Dade City, Florida 33553

For Petitioner: Joseph T. Rachel, pro se

Post Office Box 316

San Antonio, Florida 33525

For Respondent: Lisa C. Bennett, Esquire

7530 Little Road

New Port Richey, Florida 33553

By Petitions for Relief received at the Florida Commission on Human Relations on September 12 and September 17, 1984, Harold N. Herman and Joseph T. Rachel contest the NOTICES OF DETERMINATION: NO CAUSE dated August 14 and August 16, 1984, respectively, entered by the Florida Human Relations Commission and requested these formal proceedings. As grounds therefor both Petitioners allege they were discriminated against in employment by reason of their age.

Since both Petitioners had been fired from their jobs in the Pasco County

Building Inspection Department and both allege discrimination by reason of age, these cases were consolidated for hearing. Although each Petitioner testified regarding his belief that he had been terminated because of age, all of the evidence presented related to both of these cases and one Recommended Order will be submitted.

At the hearing each Petitioner testified in his own behalf, Respondent called three witnesses, and two exhibits were admitted into evidence.

FINDINGS OF FACT

1. Harold E. Herman was terminated from his job as General Building Inspector with Pasco County in 1983. At the time of his dismissal he was 58 years old. Herman had worked as a Building Inspector in the Pasco County Building Inspection Department for approximately ten years. He was Chief Building Inspector until his demotion to General Inspector in 1982.

   
   

2. Joseph T. Rachel was terminated from his job as General Building Inspector with Pasco County at the same time or about the same time Herman was dismissed. Both Herman and Rachel had been hired by the Pasco County Building Department at the same time (Exhibit 2). At the time of his termination Rachel was 61 years old and in good health. No evidence was presented that either Petitioner was physically unable to adequately carry out the duties of a building inspector.

   
   

3. Both Herman and Rachel were combined inspectors deemed qualified to inspect construction and mechanical on residential construction. On commercial construction combined inspectors are not used and each inspector inspects only the construction aspect for which he is primarily qualified such as plumbing, electrical, construction, etc.

   
   

4. At or about the same time these Petitioners were dismissed another inspector, Connell, was also terminated. Connell was 36 years old at the time of his dismissal (Exhibit 2).

   
   

5. Subsequent to the dismissal of these two Petitioners seven people have been hired by the Pasco County Building Department ranging in age at the time of hiring from 47 to 63 years old (Exhibit 1). Only one employee in this department is less than 40 years old and the average age of Pasco County Building Inspectors is in the mid-50's.

   
   

6. In the summer of 1983 the manager of the Dade City building office received complaints from owners of recently built homes in a subdivision known as Southlake near Land O'Lakes. Twenty-one of these houses were subsequently reinspected by a different inspector in the building department and code violations were found on 17 of the homes inspected. The violations ranged from improperly installed tie-downs to removal of strength members in framing and trusses. Seven of the homes in which code violations were found were inspected by Rachel and two were inspected by Herman. Others presumably were inspected by Connell, who was fired as the result of this same investigation.

   
   

7. Petitioners attempted to show that the persons conducting the investigations of code violations were not competent building inspectors and that code violations were overlooked on other homes. This evidence is not relevant to these proceedings as it is not related to Petitioners' ages.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. Section 760.10, Florida Statutes, makes it an unlawful employment practice for an employer to discharge or otherwise discriminate against any individual because of such individual's age.

   
   

10. Discrimination denotes disparate treatment, i.e., that the employer treated older employees differently than younger ones were treated. It is not unlawful discrimination to dismiss an employee who becomes physically disabled and is thereby unable to perform the duties required of his job. Nor is it unlawful discrimination to refuse to hire one not physically capable of performing the duties required by the job even if the physical incapacity is due to age. Nor is it unlawful discrimination to refuse to hire one who is not a citizen if such refusal is not based on national origin. Esposito v. Farrah Manufacturing Company, 414 U.S. 86, 96 S.Ct. 334, 34 L.Ed.2d 287 (1973); to base hiring on bona fide occupational qualifications which, although they are narrowly construed, permit sex-based discrimination, Dothard v. Rawlingson, 433

    U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); or to limit certain employment in religious institutions to persons of that faith.

    
    

11. In a discrimination case the Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate reason for the Petitioner's rejection. Should Respondent carry this burden, Petitioner must then have an opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not his true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

    
    

12. To present a prima facie case, Petitioner must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254. The prima facie case serves to eliminate the most common non-discriminatory reasons for the plaintiff's rejection. See Teamsters v. United States, 431 U.S. 324, 358 and n. 44, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).

    
    

13. In order to establish a prima facie case Petitioner must show: (1) that he is in a classification covered by Section 760.10; (2) that he performed his assigned duties satisfactorily; and (3) that despite his satisfactory performance he was terminated. Cf. McDonnell Douglas Corp. v. Greene, 411 U.S. 792, 93 S.Ct. 1817, 37 L.Ed.2d 668 (1973).

    
    

14. Here, Petitioners have failed to present prima facie cases of discrimination because of age. No pattern of dismissing elderly employees was shown, nor was a pattern of replacing the Pasco County Building Inspection Department with younger men shown. One would normally expect an employee retiring at 62 or 65 to be replaced by one below the retirement age. Here, at least one of those hired to replace Petitioners was older than either Petitioner. Simply showing that one is a member of a class protected from discrimination by Section 760.10, Florida Statutes, does not establish a prima

facie case. One must at least show that his performance of duty was satisfactory. Here, the only evidence submitted in this regard was that each Petitioner's performance of duty was unsatisfactory and that was the sole reason for their dismissal.

From the foregoing, it is concluded that neither Petitioner presented a prima facie case of discrimination in employment because of age; and, even if an ultra-liberal interpretation is adopted to establish a prima facie case by merely showing the complainant is a member of a protected class, the Respondent has here articulated and substantiated legitimate, non-discriminatory reasons for dismissing these Petitioners and the Petitioners have presented no evidence that the articulated reason is a pretext for discrimination by reason of age.

It is

RECOMMENDED that the appeals of Harold N. Herman and Joseph T. Rachel from their firing from the Pasco County Building Inspection Department by reason of age be dismissed.

ENTERED this 24th day of May, 1985, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May , 1985.

COPIES FURNISHED:

Harold Herman 4840 North 41

Dade City, Florida 33525

Joseph T. Rachel Post Office Box 316

San Antonio, Florida 33576

Lisa C. Bennett, Esquire Assistant County Attorney Pasco Government Center 7530 Little Road

New Port Richey, Florida 33553

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303

Aurelio Durana, Esquire General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303

Suzanne Oltman, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303

Docket for Case No: 84-003554

Orders for Case No: 84-003554