STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGIE ANN SIMS, )

)

Petitioner, )

)

vs. ) Case No. 85-0681

) NIAGARA LOCKPORT INDUSTRIES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 22, 1985, in Quincy, Florida. The parties were afforded leave through February 3, 1986, to submit memoranda supportive of their respective positions. Both parties submitted proposed findings of fact and conclusions of law which were considered by me in preparation of this Recommended Order. Proposed findings of fact which are not adopted are the subject of specific rulings made in the appendix to this Recommended Order.

APPEARANCES

For Petitioner: Steven L. Seliger, Esquire

229 East Washington Street Quincy, Florida 32351

For Respondent: Swift, Currie, McGhee

and Hiers, P.A., by

Victor A. Cavanough, Esquire 771 Spring Street, Northwest Post Office Box 54247 Atlanta, Georgia 30379-2401

ISSUE PRESENTED

The issue presented for decision herein is whether or not the Petitioner, Margie Ann Sims, was unlawfully terminated (by Respondent), Niagara Lockport Industries, Inc., due to her age in violation of the Florida Human Rights Act of 1977, Section 760.10, Florida Statutes (1983).

BACKGROUND

On August 21, 1984, the Executive Director of the Florida Commission on Human Relations, after an investigation, issued his determination that there was no reasonable cause to believe that an unlawful employment practice had occurred as relates to Petitioner. The Executive Director found that Petitioner did not set out a prima facie case and that Respondent had substantiated legitimate, non-discriminatory reasons for its action.

Petitioner subsequently submitted a request for redetermination which was denied by the Executive Director who affirmed the "No Cause" determination on December 26, 1984. Petitioner thereafter filed a Petition for Relief giving rise to the hearing in the instant matter.

Petitioner, in addition to herself, present the testimony of Jack P. Strickland, Linda Jaudzimas and Don Anderson. Respondent presented the testimony of Malcolm R. Cairns, Robert Gordon Worrall, Harry Kurtz, Bruce Kennedy and Henry T. Burnett.

Additionally, the parties stipulated to the introduction of Petitioner's Exhibits 1, 2 and 3 and Respondent's Exhibits 1

through 7.

Petitioner's Exhibit 4 was tentatively admitted over Respondent's objection and the ruling is herein made that that exhibit (Petitioner's Exhibit 4) should be excluded from evidence herein inasmuch as, based on Petitioner's proffer, it constitutes hearsay and is not corroborative of other evidence introduced herein during the hearing. Finally, in the absence of a stipulation or any other basis which would warrant consideration of Petitioner's Exhibit 4, it is rejected and will not be considered by me in preparation of this Recommended Order.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings.

   
   

2. Petitioner is forty eight (48) years old. She commenced work for Respondent, Niagara Wires, a subsidiary of Niagara Lockport Industries, Inc., located in Quincy, Florida during 1965 as an Accounts Payable Clerk. Petitioner was terminated on August 5, 1983, as a result of a reduction in staff

   and unsatisfactory work performance.1

3. During Petitioner's job tenure, she held various accounting and secretarial positions. Petitioner's initial

   duties were that of an accounting clerk and she later progressed to Assistant Chief Accountant. She later served as Corporate Bookkeeper and Secretary. Throughout her employment, her job duties were very broad and encompassed many areas of responsibility including overseeing accounts receivable, billings, payroll, bank statements, journal entries, wire transfers and financial statements.

   
   

4. During 1975, Respondent's corporate office was moved to Quincy, Florida and Petitioner handled accounting and secretarial duties for the corporate office, dealt with banks making fund transfers, loan balancing and note arrangements; managed financial consolidation of Respondent's eight companies on a quarterly basis; maintained all pension plan records for Respondent's fourteen pension plans which included calculations of pension benefits, submission of wages and credited service to actuaries in preparation of various pension reports.

   
   

5. Petitioner's other duties involved maintenance of company minute books, typing, submission and maintenance of files for all letters of credit issued; keeping patent and trademark files and assisted with telecopy, switchboard and TWX. (Petitioner's Exhibit 2).

   
   

6. During 1976, Petitioner worked directly for Respondent's corporate secretary/treasurer, Robert Worrall. The assignment occurred as a result of a recommendation by Respondent's manufacturing manager, Don Anderson. Petitioner was considered the best of the three employees available to work for Worrall. Thereafter, several changes were made in Respondent's corporate makeup including the addition of the Lockport Felt Division in 1977. As a result, additional employees were placed in the accounting department and Petitioner's duties became more secretarial and clerical in nature than accounting. This situation remained unchanged until Petitioner's termination in 1983.

   
   

7. Although Petitioner worked directly for Worrall, she was also expected to perform secretarial and clerical work for others in the accounting department, specifically including Harry Kurtz, Vice-President of Finance, Bruce Kennedy, Controller and Hank Burnett, Corporate Administrative Manager. While Petitioner's primary responsibility was to complete Worrall's work, she was also expected to perform work for other accountants and fiscal employees in the accounting department as she was the only trained employee in the accounting department available for typing duties. (TR 35, 106, 133-134, 117-119, 138, 142 and 153). Respondent has not maintained a formal policy concerning employee discipline or warnings for salaried employees, as Petitioner. (Testimony of Cairns and Worrall, TR 19, 46-47, 60 and 77).

8. Commencing in 1980, Worrall became unhappy with Petitioner's work performance. This unhappiness took the form of counseling with Petitioner during year-end annual reviews and included the following deficiencies: "away from her work station when needed; too much time spent socializing with others; unwilling to work; pushing work back on Worrall; untimeliness and failing to timely complete work as assigned." (TR 85, 110, 116- 117).

   
   

9. Like Worrall, other employees in the accounting department for whom Petitioner worked were dissatisfied with her performance during the years 1980-1983. Harry Kurtz, Vice- President of Finance, experienced problems with Petitioner's work quality including errors in typing and formatting, misspelled words and inaccurate numbers to the point where he did not want her (Petitioner) to perform his (Kurtz) work. He was thus forced to seek assistance from persons outside the accounting department, including Pat Simmons who replaced Petitioner, to perform his work. Kurtz related these problems to Worrall. (TR 128, 129-133, 131 and 136).

   
   

10. Bruce Kennedy, Controller, experienced similar problems with Petitioner's work quality. He noted Petitioner frequently misspelled words and transposed numbers. Kennedy experienced problems concerning timeliness and the invalid excuses by Petitioner for failing to complete assigned work as scheduled. (TR 137-139). Based on Petitioner's poor work quality, Kennedy went outside the accounting department to get assistance in performing his clerical and secretarial duties. Kennedy informed Worrall of his dissatisfaction with Petitioner's work.

    
    

11. Hank Burnett, Corporate Administrative Manager, also experienced problems with Petitioner's work quality in regards to accuracy and neatness. Burnett related an incident where Petitioner used so much "white-out" to make corrections that numbers on ledger sheets were not legible. Burnett also experienced problems with Petitioner in getting work returned timely. He also found it necessary to go outside the accounting_ department to solicit the assistance of Pat Simmons to perform his work. Burnett related to Worrall his dissatisfaction with Petitioner's performance. (TR 128, 150).

    
    

12. Linda Jaudzimas is presently employed with Niagara Wire Weaving Employees Credit Union. She has held that position since approximately May of 1980. During the years 1978 through May of 1980, Jaudzimas was employed as an accounting clerk in the corporate accounting office for Niagara Lockport Industries. During that time period, she worked directly with Petitioner and Worrall. Jaudzimas described Petitioner and Worrall as having a

    very good work relationship and that Worrall depended upon Petitioner a lot. However, since May of 1980, Jaudzimas had only limited contact with Petitioner The typical degree of contact would be only to "pick up reports; I would get information from pensions for time reporting periods." (TR 54 and 58).

    
    

13. Don Anderson is presently employed as the Manufacturing Manager for Respondent. Anderson has been in Respondent's employ since 1971. From 1971 through January 1, 1974, Anderson was Respondent's Chief Accountant. Anderson had no direct knowledge concerning Petitioner's work performance since January of 1974. Anderson corroborated Cairns and Worrall's testimony that Respondent had no formal policy concerning disciplinary action taken against salaried employees, as Petitioner. (TR 60).

    
    

14. Respondent conducted informal evaluations of salaried employees, including Petitioner, at the end of each year in conjunction with salary increases. During Petitioner's 1981 work performance evaluation, Worrall discussed his concerns with Petitioner including the fact that she spent too much time talking to other people; that he always had to look for her and she pushed work back on him. Petitioner's time away from her work station and her negative attitude toward the company's insurance program were items of discussion. (TR 17; 84-88). An entire list of Worrall's concerns respecting Petitioner's job performance were placed in her personnel file during the 1981 annual performance review. (Respondent's Exhibit 1). Petitioner recalls Worrall using that list during their meetings. (TR 36). Petitioner's performance did not improve during the following year and Worrall expressed the same concerns to her during her annual work performance review during 1982. (TR 115-116).

    
    

15. Petitioner received "good" salary increases during the late 70's however, due to her poor performance from 1980-1982, Worrall recommended that she receive only the minimum cost of living increases for the years 1981, 1982 and 1983.

    
    

16. In mid 1983, Respondent made a decision to reorganize its corporate offices by moving the sales office of Niagara Lockport from Quincy to Starkeville, Mississippi and by making a change in the research and development department. Pat Simmons, age 41, was secretary for the vice-present of research and development. Worrall was familiar with Ms. Simmons and her work having seen it first hand. Additionally, she was highly recommended by her then supervisors. Finally, she had performed work considered to be "high quality" by other employees in the accounting department including Kurtz, Kennedy and Burnett. When Simmons became available due to the reorganization, Worrall decided to replace Petitioner with Simmons. Petitioner's job had become primarily secretarial and clerical in nature and Worrall

    desired a competent executive secretary to replace her. (TR 88 90, 92, 94, 121-122, 127). Petitioner was 45 years of age at the time of her termination. (Respondent's Exhibit 3).

    
    

17. Petitioner's duties were assumed by Simmons (95 percent) and Elaine Hall (5 percent) who was retained since she- possessed requisite accounting skills. Hall was able to complete the cash report in two hours, a job that had taken Petitioner the better part of a day to perform. (TR 86).

    
    

18. As a result of the reorganization, two other employees, Loretta Hood (mid 30's) and Virginia Jeffcoat (mid 50's) were terminated.

    
    

19. Petitioner was terminated in August, 1983 for the reasons that her performance was not satisfactory and a qualified person (Simmons) had become available due to Respondent's corporate reorganization and staff reduction. This was told to Petitioner at the time of her termination. (Respondent's Exhibit 2; TR 68, 93).

    
    

20. Subsequent to her termination, Petitioner requested that Worrall write her a letter of recommendation. Worrall complied, however, Petitioner was not pleased and asked him to write a second one giving him an example to follow (Respondent's Exhibit 7). Petitioner wanted a "good" letter of recommendation so that she could easily obtain another job. In writing the recommendation, Worrall followed his policy of not commenting on negatives but merely set out the type of work Petitioner performed.

    
    

21. Petitioner was still unsatisfied with Worrall's second letter and she therefore asked the Respondent's President, Malcolm Cairns, to write a letter of recommendation for her. As with Worrall, Petitioner participated in the drafting of the letter for Cairns by providing him with an example. (TR 22, 23 and 70). Cairns did not include anything negative in the letter so that it would be easier for Petitioner to obtain another job.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

23. The parties were noticed pursuant to the notice provisions of Chapter 120, Florida Statutes. 3. The Florida Human Rights Act of 1977, as amended, Section 760.10, Florida Statutes (1983), prohibits the discharge of any individual because of such persons age. This act is patterned after Title

    VII of the Civil Rights Act of 1964, as amended, 42 USC Section 2000e-2. As such, the Florida Act takes the same construction as its prototype has been given in the Federal Courts. School Board of Leon County v. Hargis, 400 So. 2d 103, 108 (Fla. 1st DCA 1981); Pasco County School Board v. Florida Public Employees Relations Commission, (Fla. Appellate) 353 So. 2d 108 (1977).

    
    

24. The burden of proof standards formulated for Title VII cases, and consequently for complaints brought under the Florida Human Rights Act have been set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Although McDonnell Douglas was a hiring case, it is also applicable to discharge cases. Lincoln v. Board of Regents of University System, 697 F.2d 928, 937 (1983); Marks v. Prattco, Inc., 607F. 2d 1153 (5th Cir. 1979). Additionally, the burden of proof standards of McDonnell Douglas v. Green have been held applicable to age discrimination cases. Sutton v. Atlantic Richfield, Co., 646 F.2d 407 (9th Cir. 1981). Under this authority, the Petitioner has the initial burden of establishing a prima facie case by showing:

    
    

    1. That she is a member of a protected class.

    2. That she was qualified for her job.

    3. That she was discharged despite the qualifications, and

    4. That the employer filled the job with a non-protected class member. If the Petitioner meets this initial burden, the burden then shifts to the Respondent to articulate some legitimate, nondiscriminatory reason for the termination.

       
       

25. If Respondent carries this burden, the Petitioner must prove by a preponderance of the evidence that the reasons offered by Respondent were a pretext for discrimination by showing discriminatory intent. Respondent may rebut the pretext charge by proof of absence of discriminatory motive. When the burden shifts initially after Petitioner establishes a prima facie case, Respondent need not prove that it was actually motivated by articulated non-discriminatory reasons or that the replacement employee was more qualified than the Petitioner. Only the burden of going forward shifts to Respondent, not the burden of persuasion. Petitioner retains the burden of establishing a case of discrimination by a preponderance of the evidence. Texas Department of Community Affairs v. Burdine, supra.

26. Petitioner has failed to carry her burden of setting out a prima facie case as set out in Price v. Maryland, 561F.2d 609, 612 (5th Cir. 1977). Although Petitioner is a member of a protected class and was terminated, the evidence reveals that she was not qualified for her job due to the above-referred typing inaccuracies; timeliness; away from her work station; failed to timely complete work assignments. Finally, Petitioner was not replaced by a non-protected class member. (Petitioner's replacement, Pat Simmons, was 41 years old at the time she was engaged to perform Petitioner's work duties).

    
    

27. Under the Age Discrimination in Employment Act of 1967, as amended, 29 USC Section 621 (ADEA), the protected class consists of those persons between the ages of 40 and 70. While Petitioner contends that the Florida Statute protects all employees regardless of age, this contention lacks merit. An examination of the ADEA, reveals that there is no counterpart under it to the development under Title VII and Section 1981 cases where measures have been invoked to prevent reverse discrimination against non-minority employees. Thus, under the ADEA, there is a specific section limiting its protection to those in the 40 to 70 age group. That being the status of the federal law and since the Florida Human Rights Act of 1977 is patterned after the federal law, the construction taken by the Florida Act will be the same as its prototype has been given in the federal courts. Pasco County School Board v. Florida Public Employees Relations Commission, supra. For these reasons, it is concluded that the Petitioner, who was then 45 years old when replaced by Simmons, who was then 41 was also a member in the protected age group. Therefore, Petitioner has failed to set out a prima facie case in accordance with established guidelines in that she was not replaced by a non-protected class member. See Price v. Maryland, supra.

28. Finally, even assuming arguendo that Petitioner set forth a prima facie case, Respondent articulated a legitimate non-discriminatory reason for her termination. Competent and substantial evidence was offered herein to conclude that

Petitioner's work performance during the periods 1980 to 1983 was unacceptable as evidenced by testimony of her supervisor and other coworkers in the accounting department, i.e., Messrs.

Kurtz, Kennedy and Burnett. It is thus concluded that Petitioner's overall job performance was unacceptable to Respondent and she was discharged for that reason. Petitioner's discharge was precipitated in part by Respondent's reorganization and staff reduction during August, 1983. Respondent's reasons advanced for Petitioner's dismissal were not shown to be pretextual and in the absence thereof, they must stand. Age was not at all a motivating factor in Respondent's discharge of Petitioner. It is therefore concluded that Petitioner was

terminated for the reasons set forth in the separation notice given her (Respondent's Exhibit 2) i.e., "staff reduction and performance not satisfactory."

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order finding that Petitioner was not terminated due to her age in violation of the Florida Human Rights Act of 1977, as amended. Section 760.10, Florida Statutes (1983) and that Petitioner's Petition for Relief be DISMISSED.

DONE and ORDERED this 10th day of March, 1986, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 10th day of March, 1986.

COPIES FURNISHED:

Steven L. Seliger, Esquire

229 E. Washington Street Quincy, Florida 32351

Swift, Currie, NcGhee and Hiers, P.A., by Victor A. Cavanough

771 Spring Street, N.W. Post Office Box 54247 Atlanta, Georgia 30379-2401

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

325 John Knox Road Building F, Suite 240/

Tallahassee, Florida 32303.

Dana Baird, General Counsel

Florida Commission on Human Relations

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

ENDNOTES

1/ The parties disagree as to Petitioner's reasons for discharge. Specifically, Petitioner contends that she was told at the time of her termination that there was a reduction in staff whereas Respondent later changed reasons and related that her termination was prompted by both a staff reduction and unsatisfactory job performance. Those reasons are referred to and discussed in this Recommended Order.

2/ The fact that Respondent provided Petitioner a satisfactory recommendation letter to assist her in obtaining other employment does not convert her unsatisfactory job performance to a satisfactory performance.

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(1), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact submitted by Petitioner:

1. Accepted in Paragraph 1 with modifications as unnecessary.

   
   

2. Accepted as modified in Paragraph 1.

   
   

3. Accepted as modified in Paragraph 1.

   
   

4. Accepted in Paragraph 1.

   
   

5. Accepted in Paragraph 1 with last sentence rejected as unnecessary.

   
   

6. Adopted in Paragraph 2, 3 and 4.

   
   

7. Rejected as unnecessary.

   
   

8. Adopted in Paragraph 5.

   
   

9. Adopted in Paragraph 3.

10. Adopted in Paragraph 7.

    
    

11. Rejected as unnecessary.

    
    

12. Adopted, Page 6, Paragraph 3.

    
    

13. Adopted, as modified, Page 4, Paragraph 2.

    
    

14. Rejected, as there was competent substantial evidence indicating that Mr. Worrall counseled Petitioner about her poor job performance.

    
    

15. Rejected as unnecessary.

    
    

16. Adopted, Page 4, Paragraph 1 and Page 5, Paragraph 3.

    
    

17. Adopted, Page 5, Paragraph 3. The last sentence is rejected as being contrary to other competent substantial evidence which indicated that Petitioner did not volunteer to help others and her attitude about working for Niagara was less than excellent.

    
    

18. Adopted, Page 3, Paragraph 3.

    
    

19. Rejected, as other competent substantial evidence forces the conclusion that Petitioner was discharged due to a staff reduction and unsatisfactory job performance.

    
    

20. Rejected as unnecessary and irrelevant.

    
    

21. Rejected as unnecessary.

    
    

22. Rejected as unnecessary and there was other competent, substantial evidence which supports a finding that the letters of recommendation were given to Petitioner to make it easier for her to obtain other employment (Page 7, Paragraphs 4 and 5).

    
    

23. Rejected since Worrall's credited testimony is that Petitioner's work was not satisfactory for the years 1980-1983 as evidenced by Petitioner's annual performance reviews.

    
    

24. Rejected inasmuch as competent, substantial evidence reveals that Petitioner was terminated due to a staff reduction and unsatisfactory work performance.

    
    

25. Rejected as contrary to specific findings on Page 7, Paragraph 3 (Respondent's Exhibit 1).

    
    

26. Rejected as Worrall spoke to Petitioner about problems during annual performance reviews in 1981 and 1982.

27. Adopted as modified based on the specific findings on Page 6, Paragraph 2.

    
    

28. Adopted, Page 7, Paragraph 1.

    
    

29. Adopted, Page 6, Paragraph 3.

    
    

30. Rejected because while true, statements are irrelevant in view of the specific findings that Petitioner was discharged based on a staff reduction and unsatisfactory job performance

    
    

31. Rejected as irrelevant and unnecessary.

    
    

32. Rejected as irrelevant and unnecessary.

    
    

33. Rejected as irrelevant and unnecessary.

    
    

    ================================================================= AGENCY FINAL ORDER

    =================================================================

    
    

    STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

    
    

    
    

    MARGIE ANN SIMS,

    
    

    Petitioner,

    
    

    v.

    
    

    NIAGARA LOCKPORT INDUSTRIES,

    
    

    EEOC Case No. 46842088 FCHR Case No. 84-1082 DOAH Case No. 85-0681

    INC. FCHR Order No. 86-030

    
    

    Respondent.

    /

    
    

    ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

    
    

    1. Panel of Commissioners

       
       

       The following three Commissioners participated in the disposition of this matter:

       Commissioner Learna G. Ramsey, Panel Chairperson; Commissioner Elvira M. Dopico;

       and Commissioner Thomas H. Poole, Sr.

       
       

    2. Appearances

       For Respondent, Niagara Lockport Industries, Inc.: Victor A. Cavanaugh, Esquire

       771 Spring Street, N.W. Atlanta, Georgia 30379

       
       

       No appearance was entered at the Commission deliberation by or behalf of Petitioner.

       
       

    3. Preliminary Matters

       
       

       Margie Ann Sims, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1985), alleging that Niagara Lockport Industries, Inc., Respondent herein, unlawfully discriminated against Petitioner on the basis of age (A6).

       
       

       In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On August 22, 1984, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice occurred.

       Petitioner sought reconsideration of this decision and, on December 27, 1984, the Executive Director denied her Request for Redetermination.

       
       

       On January 14, 1985, the Petitioner filed a Petition for Rlief om an Unlawful Employment Practice. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on October 22, 1985, in Quincy, Florida, before James E. Bradwell, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on March 10, 1986.

       Neither party filed exceptions to the Recommended Order. Pursuant to notice, public deliberations were held on May 2,

       19866, before the aforementioned Panel of Commissioners, by means

       of a telephone conference call, at which deliberations the Panel determined the action to be taken upon the petition.

    4. Findings of Fact

       
       

       Having considered the Hearing Officer's findings of fact, and being particularly mindful of the record in this proceeding, the Panel finds that the Hearing Officer's findings of fact are supported by competent substantial evidence. The Hearing Officer's findings of fact are hereby adopted.

       
       

    5. Conclusions of Law

       
       

       The Hearing Officer concluded, in pertinent part:

       
       

       Petitioner has failed to carry her burden of setting out a prima facie case as set out in Price v. Maryland, 561 F.2d 609, 612 (5th Cir. 1977). Although Petitioner is a member of a protected class and was terminated, the evidence reveals that she was not qualified for her job due to the above-referred typing inaccuracies; timeliness; away from her work station; failed to timely complete work assignments. Finally, Petitioner was not replaced by a non protected class member. (Petitioner's replacement, Pat Simmons, was

       41 years old at the time she was engaged to perform Petitioner's work duties).

       
       

       Under the Age Discrimination in Employment Act of 1967, as amended, 29 USC Section 621 (ADEA), the protected class consists of those persons between the ages of 40 and 70. While Petitioner contends that the Florida Statute protects all employees regardless of age, this contention lacks merit. An examination of the ADEA reveals that there is no counterpart under it to the development under Title VII and Section 1981 cases where measures have been invoked to prevent reverse discrimination against non-minority employees. Thus, under the ADEA, there is a specific section limiting its protection to those in the 40 and 70 age group. That being the status of the federal law and since the Florida Human Rights Act of 1977 is patterned after the federal law, the construction taken by the Florida Act will be the same as its prototype has been given in the federal courts. Pasco County School Board v. Florida Public Employees Relations Commission, 1353

       So. 2d 108 (Fla. 1st DCA 1977)]. For these reasons, it is concluded that the Petitioner, who was then 45 years old when replaced by Simmons, who was then 41 was also a member in the protected age group. Therefore, Petitioner has failed to set out a prima facie case in accordance with established guidelines in that she was not replaced by a non-protected class member. See Price v.

       Maryland, supra.

       
       

       The Hearing Officer's legal conclusions are premised upon an erroneous construction of the Human Rights Act. In contrast to the federal Age Discrimination in Employment Act (ADEA), the state statute does not articulate a particular age group to which its protection extends. Rather, Section 760.10(1)(a), Florida Statutes (1985), provides in relevant part that:

       
       

       It is an unlawful employment practice for an employer to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individua1 with respect to compensation, terms, conditions, or privileges of employment, because of such individual's . . . age . . . .

       
       

       The Commission rejects the Hearing Officer's conclusion that the Human Rights Act is so patterned upon the federal act as to mandate that its scope be impliedly defined, consistent with the ADEA, as ages 40-70. The federal courts have recognized that the ADEA was not intended to preempt state laws which protect employees outside of the ADEA protected age class. See Simpson v. Providence Washington Insurance Group, 608 F.2d 1171, 1175

       (9th Cir. 1979), adopting opinion below, 423 F.Supp. 552, 555-56 (D.Alas. 1976). Furthermore, this Commission has consistently construed the Human Rights Act according to its own clear terms to prohibit discrimination in employment on the basis of any age, birth to death. See, e.g, Maher v. Beacon-Donegon Nursing Home,

       8 FALR 1416 (FCHR December 26, 1985) (age 73); Kilpatrick v. Howard Johnson, 7 FALR 5468 (FCHR May 31, 1985) (age 36); Morrow v. Duval County School Board, 7 FALR 3885 (FCHR April 29, 1985)(age 70). The contemporaneous construction placed upon a statute by the officials charged with the duty of executing it is highly persuasive and entitled to great weight. See King v. Seamon, 59 So. 2d 859 (Fla. 1952); ABC Liquors v. Department of Business and Regulation, 397 So. 2d 696 (Fla. 1st DCA 1981).

       Accordingly, the Hearing Officer's conclusion that Petitioner failed to establish a prima facie case in that she was not replaced by someone outside of the ADEA protected class is

       rejected. In this case, a prima facie case of age discrimination under the Human Rights Act would be established by demonstrating that the Petitioner is age 45; she was qualified for the position at issue; she was nonetheless subjected to an adverse employment action, and the Respondent sought or selected someone of a different age than 45 to perform the work in her stead.

       
       

       Although the Panel rejects the conclusion that the person sought or selected in lieu of Petitioner must be outside of the 40-70 age range, in the instant case the Panel concurs that the age of the comparative person (41) defeats Petitioner's attempt to set out a prima facie case. This is so because the proximity of Petitioner's age to that of her replacement fails to give rise to a reasonable inference of a causal connection between the employment decision and the prohibited motive of age.

       
       

       The Hearing Officer's conclusions of law, as modified above, are a correct application of law. The Hearing Officer's conclusions of law, as modified, are hereby adopted.

       
       

    6. Dismissal

The Hearing Officer's recommendation is adopted and his Recommended Order is incorporated herein by reference.

Accordingly, the Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are hereby, DISMISSED with prejudice.

Petitioner is advised of her right to petition the Florida District Court of Appeal for review of this Order within 30 day of the date that this Order is filed with the Clerk of the Commission. Section 120.68, Fla. Stat. (1985); Fla. R. App. P. 9.110(b).

It is so ORDERED.

Dated this 12th day of May, 1986.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Learna G. Ramsey Panel Chairperson

Commissioner Elvira M. Dopico; and Commissioner Thomas H. Poole, Jr.

FILED this 20th day of May, 1986, in Tallahassee, Florida.

Betsy Howard,

Clerk of the Commission

ENDNOTES

1/ Unless otherwise indicated, all statutory references are to Florida Statutes (1985), and all rule references are to Florida Administrative Code.

2/ The public access point for this conference call was the office of the Commission Tallahassee, Florida.

COPIES FURNISHED:

Steven L. Seliger, Attorney for Petitioner (C.M. #P318661518)

Victor A. Cavanaugh, Attorney for Respondent ( C. M. #P318661519) .

Suzanne M. Choppln, Legal Advisor for Commission Panel Paulette H. Simms, Administrator of Employment Investigations James E. Bradwell, DOAH Hearing Officer

Docket for Case No: 85-000681

Orders for Case No: 85-000681