STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK M. KEELS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4446

) BLACK & VEATCH ENGINEERING AND ) ARCHITECTS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on March 6, 1987. The transcript of proceedings was filed with the Division of Administrative Hearings on August 24, 1987. Neither party filed proposed findings of fact.

The petitioner appeared on his own behalf. Respondent was represented by counsel:

John R. Phillips, Esquire Blackwell, Sanders, Matheny, Weary & Lombardi

Post Office Box 419777

Kansas City, Missouri 64141-6777

In response to petitioner's complaint that respondent Black & Veatch Engineers and Architects (Black & Veatch) discriminated against him on account of his age, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "NOTICE OF DETERMINATION: NO CAUSE" issued August 18, 1986. Petitioner's request for redetermination occasioned a "NOTICE OF REDETERMINATION: NO CAUSE" issued October 13, 1987. Petitioner then filed a form petition for relief from an unlawful employment practice, pursuant to what is now Rule 22I-9.008(1), Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), which the FCHR transmitted to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1986 Supp.).

ISSUE

Whether petitioner suffered age discrimination for which Black & Veatch is answerable, when an employee of Black & Veatch objected to petitioner's becoming the safety engineer for M. A. Mortenson Company, the general contractor on a project for the Orlando Utilities Commission for which Black & Veatch was construction manager?

FINDINGS OF FACT

1. Since 1940, petitioner Jack Keels has been in the construction business, "95 percent of it would be . hydroelectric dams along the Columbia and Snake Rivers." (T.13) He has worked as a laborer, carpenter, an iron worker, a craft superintendent, a shift superintendent, a general superintendent, a craft foreman, a shift foreman and a general foreman. Aside from a wealth of practical experience, he has taken "probably 200 or 250 hours of classes on safety and first aid." (T. 13, 14) He has "been acting safety director on five or six jobs" (T.14) and once was responsible for the safety of 300 men.

   
   

2. When he began work for M.A. Mortenson Company (Mortenson), however, on the Curtis H. Stanton Energy Center job (Stanton) , a coal-fired plant Mortenson was building for the Orlando Utilities Commission (OUC), Mr. Keels was a crane Coordinator without "assigned responsibility for safety." (T.93)

   
   

3. But Mr. Keels offered suggestions about how to improve safety and spoke to Mortenson's Bill King regularly on such topics as safety latches for the hooks, proper nets, electrical splices, man baskets that were not regulation, and the like. When a new crane arrived on the site, Mr. Keels asked the general superintendent where the blocks were to test the crane and was told there were none and they had not been testing the cranes. There were other "flagrant violations" of safety regulations including widespread disregard for the rules requiring workmen to wear hard hats and forbidding them to bring glass containers onto the construction site. Although another contractor at Stanton, Babcock & Willcox, seemed to be doing worse as far as safety, Mortenson's practices were below average in Mr. Keels' opinion.

   
   

4. This was also the impression key personnel at Black & Veatch had of Mortenson's performance. As the owner's representative at Stanton, Black & Veatch had invoked OUC's right under "option BC. 4. 1. of the . . . contract," Respondent's Exhibit No. 6, to require Mortenson to appoint a full-time safety engineer, in May of 1984. Bill King was Mortenson's safety director or designated safety engineer, when Mr. Keels started.

   
   

5. Bill King left the job in February of 1985, and Mortenson's Mr. Barbato suggested replacing him with petitioner Keels. Mortenson did not propose this formally in writing, but Mr. Barbato explained to Richard F. King, Black & Veatch's project loss control manager at Stanton, that the work had reached a point that Mr. Keels' services as crane coordinator were no longer needed and that naming him safety engineer would make it possible to keep him on. He never told anybody at Black & Veatch about Mr. Keels' considerable background in construction safety.

   
   

6. Petitioner and Black & Veatch's Paul William Weida had twice differed with each other on issues of safety: Once Mr. Weida objected to work on a generator pedestal going forward without a handrail in place. At the time, carpenters working for Mortenson were installing concrete forms on top of the pedestal, some distance above ground. Mr. Keels pointed out that they were wearing safety belts, and argued that a handrail could constitute a hazard as they moved around bolting and nailing the forms. The other dispute about which both men testified had to do with a bent crane lattice. The lessor of the crane told petitioner there was no need to replace that section of the lattice, but a representative of the manufacturer told Mr. Weida replacement would be best. Over petitioner's strenuous objection, Mr. Weida insisted that the damaged lattice be replaced.

7. These confrontations left Mr. Weida with the impression that petitioner would be difficult to work with and also made him skeptical about petitioner's commitment to safety, a skepticism to which petitioner vehemently and perhaps justifiably objects.

   
   

8. Under the contract between OUC and Mortenson, Black & Veatch had the right, as OUC's representative, to veto any candidate for safety engineer. The agreement provided, "During the life of the contract, replacement personnel will also be subject to interview and approval by the Owner." Respondent's Exhibit No. 7.

   
   

9. Mr. Weida objected to Mr. Keels, and Richard F. King backed him up. Neither Mr. Weida's nor Mr. Richard King's opposition to Mr. Keels' being named safety engineer was in any way related to Mr. Keels' age, which, incidentally, was not proven with any specificity.

   
   

10. After receiving indications from Black & Veatch that Mr. Keels would not be an acceptable safety engineer at Stanton, Mortenson laid him off, in February of 1985. By November of 1985, Mortenson had finished its work at Stanton.

    
    

    CONCLUSIONS OF LAW

    
    

11. Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1905), to "discharge . . . or to otherwise discriminated against any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual's . . . age." Section 760.10(1)(a), Florida Statutes (1985).

    
    

12. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this case. Petitioner Keels, like plaintiffs in Title VII actions, must "bear the burden of persuasion on the ultimate fact of discrimination." Walker v. Ford Motor Co., 685 F.2d 1355, 1359 (11th Cir. 1982). Here petitioner fell far short of carrying the burden.

    
    

13. Even assuming Black & Veatch, although the owner's representative and not petitioner's employer, might be liable, if guilty of discrimination, the evidence adduced in the present case was completely inadequate to prove age- based discrimination on anybody's part.

It is, accordingly, RECOMMENDED:

That FCHR dismiss Jack Keel's petition for relief.

DONE and ENTERED this 12th day of October, 1987, at Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1987.

COPIES FURNISHED:

Donald A. Griffin Executive Director

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Shery B. Rice, Clerk

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Mr. Jack M. Keels

1693 Timber Ridge Circle Leesburg, Florida 32748

John R. Phillips, Esquire Post Office Box 419777

Kansas City, Missouri 64141-6777

Docket for Case No: 86-004446

Orders for Case No: 86-004446