Judges: DIANE K. KIESLING
Agency: Commissions
Latest Update: Nov. 15, 1988
Summary: The ultimate issue is whether the Respondent, Sears, Roebuck and Company (Sears), engaged in an unlawful employment practice by discriminating against Petitioners Charlie Alphin, on account of age in violation of the Human Rights Act of 1977, Section 760.01 et seq., Florida Statutes.Standards for age discrimination claim.
88-1446.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHARLIE ALPHIN, )
)
Petitioner, )
)
v. ) CASE NO. 88-1446
) SEARS, ROEBUCK AND COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on August 29 and 30, 1988, in Pensacola, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: Ross M. Goodman
Dawn Wiggins Hare Attorneys at Law
226 South Palafox Street Pensacola, Florida 32501
For Respondent: Tracey Arpen
Linda L. Ingham Attorneys at Law
800 Southeast Bank Building 1200 Gulf Life Drive Jacksonville, Florida 32201
ISSUE
The ultimate issue is whether the Respondent, Sears, Roebuck and Company (Sears), engaged in an unlawful employment practice by discriminating against Petitioners Charlie Alphin, on account of age in violation of the Human Rights Act of 1977, Section 760.01 et seq., Florida Statutes.
BACKGROUND AND PROCEDURAL MATTERS
At the onset of the formal hearing, Sears sought to amend its Answer, which motion was denied. Alphin presented the testimony of Giro Brigante, Charlie Alphin, Fred Stuck, Jr., Joe Moseley, Gerald Hicks, Howard E. Harrison, James Thompson and Edna Wehmeier. Petitioner's Exhibits 6-12, 14-16, 19, 20, 22-28,
30, 31, 34-36, 38, 42 and 43 were admitted in evidence.
Sears presented the testimony of Joseph W. Peklo, Fred Kelly, Jacqueline Albertson, and David H. Davis, Jr. Respondent's Exhibits 2 and 21-23 were admitted in evidence. Alphin called Walter Malone and Charlie Alphin as rebuttal witnesses.
The transcript was filed on September 7, 1988. The parties timely filed their proposed findings of fact and conclusions of law on October 14, 1988, according to their agreement at hearing. All proposed findings of fact and conclusions of law have been considered. Specific rulings on each proposed finding of fact are made in the Appendix attached hereto and made a part of this Recommended Order.
FINDINGS OF FACT
Charlie Alphin, age 52, was employed by Sears in July, 1956, and was at the Pensacola, Florida, unit from August 1, 1968, to September 22, 1986. His date of birth is November 9, 1935.
In August of 1968, Alphin was Hard Lines Merchandise Manager for the Sears Pensacola unit. This area included hardware, appliances, and all items except clothing and software.
In September, 1984, Alphin was moved to manager of the auto center in the Sears Pensacola store.
In June, 1985, Alphin was moved to manager of the home appliances division in the Sears Pensacola unit. Home Appliance divisions were numbered 3 and 57 and also called "Big Ticket" divisions.
In June, 1985, Sears restructured their management program nationwide. The reorganization had been announced in January, 1985. Divisions within Sears stores were consolidated and the numbers of managers were reduced.
As part of this reorganization, Sears offered the affected managers the opportunity to either be transferred into a sales managerial position, which would require additional hours at basically the same wages, or the option of early retirement.
Sears offered all of its time card and check list employees the opportunity from March 25, 1985, through April 19, 1985, to elect early retirement (if they were over 50 and had over 10 years service) and to take 26 1/2 weeks severance pay and leave their jobs.
The effect of the reorganization was to convert all time card managers to check list managers, to eliminate the positions of merchandise manager and division manager, and to reallocate responsibilities so that sales managers would have more direct contact with customers and employees on the floor.
Prior to the effective date of reorganization, the manager of the Auto Center at Sears Pensacola retired.
With knowledge that the reorganization was going to take place, Fred Kelly, the manager of the Sears Pensacola unit, offered the position of Auto Center manager to Alphin. Alphin had no prior experience in the Auto Center. Alphin became manager of the Auto Center in September, 1984.
Alphin was eligible for the early retirement incentive, but elected not to take it. He stayed in the Auto Center as manager.
Prior to the 1985 reorganization, the home appliance division was managed by two men, Mr. Walt Malone and Mr. Ron Parker.
As a part of the reorganization, several managers opted for the early retirement. This left a void in the store for managers.
To fill this void and because of Alphin's vast experience in the area, Fred Kelly moved Charles Alphin from the Auto Center manager position to be sales manager for the home appliances division.
Annual employee evaluations occur at Sears in January of each year. In January of 1984, Alphin was evaluated for his work as merchandise manager. This evaluation was performed by Fred Kelly. Alphin's over all evaluation was very good, even though a deficiency was noted in the sale of Maintenance Agreements (MA's).
In January of 1985, Alphin was evaluated for his work in 1984 at the Auto Center. Again, Alphin received an "over all very good" evaluation from Mr. Kelly.
Between twenty-five and thirty-five percent of the gross sales of the entire store occur in the home appliances division of the Pensacola Sears store.
Additionally, when Alphin became sales manager of the home appliances division of the Pensacola Sears he had the major responsibility for the sales of maintenance agreements as these fell predominately in the big ticket appliance items.
When Alphin became Sales Manager of the home appliances division, he had approximately 40 employees working under him.
On September 5, 1985, Alphin's son, Chris, was critically injured when he fell from a tree. Alphin had to take three of his eight accrued weeks of vacation time to be at his son's bedside. Mr. Alphin returned to work on September 30, 1985.
In January of 1986, Alphin was evaluated pursuant to the annual evaluations process and once again received an "over all very good" evaluation from Fred Kelly.
Also, in January of 1986, a fiscal inventory was taken of the Sears unit in Pensacola as well as in other Sears units.
As a result of that inventory, a shortage surfaced and it was deemed necessary that an internal audit be conducted as a follow-up to that inventory.
On February 24 - March 7, 1986, an annual internal audit was performed. The findings of the audit were very bad.
In the audit, irregularities pertaining to Alphin's area of supervision were found:
irregularity concerning Alphin's violation of Sears home demonstration policy;
irregularity concerning price change/remarking activity. Price reductions for clearance merchandise in Divisions 3 and 57;
irregularity concerning ordering goods for the big ticket divisions from the catalog;
irregularities in the handling of sales floor maintenance agreement sales;
irregularities in the handling of credit sales transactions in the big ticket divisions; and
irregularities in Divisions 3 and 57 combining for an inventory loss of $143,000.
The results of the audit were brought to the attention of Management staff in the Sears Pensacola unit.
While some of the irregularities found in Alphin's departments had shown up on one or more of the three previous annual audits, no previous audit had contained so many serious irregularities in the big ticket divisions.
On February 6, 1986, J. H. Hudspeth, Regional Merchandise Manager for Sears visited the Sears Pensacola unit. As a result of that visit, Mr. Hudspeth found the conditions of Alphin's stock rooms deplorable and, because conditions were so bad, he felt he should write a formal report to make it part of Alphin's file.
As a result of this visit and letter to Fred Kelly, the store manager, Mr. Kelly discussed these deficiencies with Mr. Alphin. Mr. Kelly specifically discussed with Alphin that the stockroom conditions were costing Sears "an arm and a leg" because of the damaged goods and uncrated goods that he had in his inventory.
In March of 1986, Dave Davis, Regional Personnel Manager, discussed the results of the audit and inventory with Mr. Kelly. Davis specifically discussed the irregularities that had surfaced within Alphin's area of responsibility and discussed Ray Bacot and two other employees, Buddy Lambert and Fred Stuck.
Alphin was called in individually to discuss the irregularities of the audit when the Regional Manager, Don Jones, visited Sears Pensacola unit in March, 1986.
Raymond Bacot, the operations manager of the Sears Pensacola unit, was also called in and counseled regarding the results of the audit.
As a result of the audit, it was determined that two senior management employees, Fred Stuck and Buddy Lambert, had, of their own volition, established the retail selling price on a piece of merchandise. This was an unauthorized mark down, a violation of Sears policy, which ultimately resulted in the termination of both Mr. Stuck and Mr. Lambert.
Mr. Kelly made the decision to terminate Mr. Stuck and Mr. Lambert.
Mr. Stuck and Mr. Lambert were terminated because of the dishonesty that was brought to the store manager's attention.
Both Stuck and Lambert were over age 40 at the time of the termination. However, age was not a factor in Mr. Kelly's decision to terminate Mr. Lambert and Mr. Stuck. Age was never a factor in Mr. Davis' decision to approve the termination of Mr. Stuck and Mr. Lambert.
As a result of the audit, three employees of the Sears Pensacola unit (Fred Kelly, Raymond Bacot, and Alphin) had their annual evaluations recalled and these employees were subsequently reevaluated.
In this case, the fiscal inventory was not taken until February in which the irregularities surfaced. Because of the nature of the irregularities, Mr. Davis instructed Fred Kelly to take another look at Alphin's and Bacot's performance evaluations for the prior year.
Along with Alphin's and Bacot's evaluation being recalled and reevaluated, Fred Kelly's evaluation was also recalled and reevaluated. All three of these employees received poor ratings for their performance level.
It is not unusual to have an employee's evaluation recalled and reevaluated. Since being Regional Personnel Manager in New Orleans, Mr. Davis has reevaluated approximately fifteen to twenty employees' evaluations.
Along with the revised employee evaluation, Alphin also received a Memorandum of Deficiency Interview (MDI) dated April 1, 1986. Fred Kelly and Raymond Bacot also each received a Memorandum of Deficiency Interview.
Mr. Kelly specifically covered the areas that were mentioned on the MDI with Alphin.
Mr. Kelly did not ask Alphin to resign at any meetings concerning his reevaluation or his MDI.
In April of 1986, Alphin asked Mr. Kelly that if he should chose to resign, would Sears pay him a service allowance. Mr. Kelly spoke to Mr. Davis regarding this request and Mr. Davis indicated that if Alphin chose to resign, Sears would approve the payment of a service allowance based on Alphin's length of service which would have amounted to ten weeks of pay.
On May 8-15, 1986, a traveling audit follow-up was conducted in the Sears Pensacola unit.
The traveling follow-up audit revealed irregularities pertaining to Mr. Alphin's area of supervision:
irregularity concerning sales floor maintenance agreement sales; and
irregularity regarding proper procedure not being followed in the big ticket divisions for credit sales transactions.
The results of the follow-up audit were discussed with Mr. Alphin.
On June 23, 1986, the store manager, Fred Kelly, administered another Memorandum of Deficiency Interview to Alphin.
Mr. Kelly counseled Alphin regarding sales check procedural violations as they pertained to the credit transactions and to the maintenance handling. Additionally, there was counselling regarding the deplorable condition of Alphin's stock rooms.
Mr. Kelly counselled Alphin on a day to day basis regarding the routine running of his business between the first MDI on April 1, 1986, and the second MDI on June 23, 1986. During this time, Mr. Kelly saw that Alphin was not improving.
During June of 1986, store employees under Mr. Alphin's supervision came to Mr. Kelly seeking guidance because they could not locate Mr. Alphin.
Mr. Kelly directed Alphin as to specific store hours that he was to remain on the floor in his department. These hours were in keeping with company direction and regional direction to make the goal of 70% visibility of sales managers on the floor.
Mr. Alphin spent a lot of time during working hours in the coffee shop. Ms. Yochim, on several occasions when looking for her supervisor, Charlie Alphin, would find him in the coffee shop smoking cigarettes.
During July of 1986 and the first part of August of 1986, the store manager, Mr. Kelly, did not see any improvement by Alphin in the area of his overall responsibilities to the stock rooms. Additionally, he did not exhibit a positive attitude towards work.
On August 14, 1986, Mr. Kelly administered a third Memorandum of Deficiency Interview. The Memorandum of Deficiency Interview indicated that Alphin had made no significant improvement over the past two months in his stockroom housekeeping. His stock areas were sub-par and unsatisfactory.
On August 27, 1986, Alphin was administered a fourth Memorandum of Deficiency Interview. Alphin was criticized for his lack of follow through that jeopardized effective monitoring of his employees' productivity and the store management's ability to maintain an effective and credible monitoring program. He was told his continued lack of involvement and attitude on the part of a staff employee in carrying out management responsibilities could not be tolerated. It impaired overall staff effectiveness. He was not performing satisfactorily as a member of management's staff.
From the period of April 1, until August 27, Mr. Kelly did not ask Alphin to resign from Sears.
In September of 1986, Mr. Kelly made the decision to terminate Charlie Alphin.
Mr. Kelly discussed this decision with Dave Davis, the regional manager, indicating that Charlie Alphin's performance had continued to deteriorate and that he had made the decision to terminate Alphin.
Mr. Davis approved, agreed with, and supported Mr. Kelly's decision to terminate Charlie Alphin.
Age was not in any way a factor in Mr. Davis' approval of Alphin's termination.
Age was not a factor in Mr. Kelly's decision to terminate Alphin.
Mr. Alphin was never told that age was the reason he was being terminated.
At the time of his resignation on September 22, 1986, Mr. Kelly called Alphin in and discussed the fact that Mr. Kelly had not seen any improvement and that Alphin's involvement was not present and that he was terminating Alphin's employment.
After Alphin's termination, Mr. Davis looked for a replacement for Alphin. Davis transferred Jerry Brigante, a sales manager in Ft. Walton Beach, to the Pensacola retail store to replace Charlie Alphin. Mr. Brigante was chosen for that position for a couple of reasons: (1) He wanted to be considered and moved to another management assignment in another Sears unit; and
(2) Because of the proximity of Ft. Walton Beach to Pensacola, it was a relatively inexpensive move from the company's perspective.
Mr. Brigante was 51 years old at the time and had 31 years of service with Sears.
Mr. Brigante accepted and arranged an interview date with Mr. Kelly.
Mr. Kelly interviewed Mr. Brigante and offered him a job in the Pensacola unit.
Mr. Brigante accepted the job promotion. Mr. Brigante actually worked only one day in the Sears Pensacola unit. In November of 1986 Mr. Brigante called Dave Davis and told him he could not handle the job in Pensacola. He indicated he had given some thought to leaving Sears and wanted to stay in the Ft. Walton Beach area. He told Mr. Davis that he wanted to retire effective that date.
The next morning Mr. Brigante called Mr. Davis and indicated he wished to recant his resignation from the previous day. Mr. Davis did not allow him to recant his resignation and indicated there was already a replacement on his way to Pensacola.
Mr. Kelly is fifty-four years old.
In the reorganization, employees Stallworth, Anderson and Townsend were transferred to sales positions in the Sears Pensacola unit. There was no pressure brought on these individuals to accept these transfers. These positions offered them a chance to make more money. Other employees were also moved to the sales floor. None of these individuals expressed any dissatisfaction with being transferred and reassigned.
The retirement incentive was available to other persons over age 40. Several of them chose to take early retirement. Specifically, Mr. Mosely, Mr. Thompson, Ms. Wehmeier, and Mr. Peklo voluntarily chose to take early retirement and did not have any pressure put on them to retire. Some older employees retired based on their fear that their jobs were in jeopardy, but no credible evidence supported these unbased beliefs.
The reason for Alphin's discharge was his poor performance.
Sears did not terminate Alphin because of his age.
CONCLUSIONS OF LAW
The Division of Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
This is an action brought pursuant to Section 760.02, Florida Statutes. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person with respect to terms or conditions of employment because of such individual's age.
The ultimate burden is on the Petitioner to demonstrate by a preponderance of the evidence that age was a determining factor in Sears' decision to terminate his employment. Discrimination denotes disparate treatment, i.e., that Sears treated employees differently based on age. 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 disparate treatment. Should Respondent carry this burden, Petitioner must then have an opportunity to prove by a preponderance of the evidence that the reasons offered by Respondent were not the 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 (1981).
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 more common nondiscriminatory reasons for the Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and 44, 97 S.Ct. 1843, 1866 (1977).
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 was qualified for the position in question; and (3) that despite his qualifications he was treated in a discriminatory manner. Cf. McDonnell Douglas Corp. v. Greene, 441 U.S. 792, 93 S.Ct. 1817 (1973). Here, Alphin has proved that he was within the protected age range of 40 to 70 years of age. He was certainly qualified for the position. He was discharged. As it relates to age discrimination, the elements of a prima facie case are further refined to include a showing that the Petitioner was replaced by one outside the protected group. Pace v. Southern Railway System, 701 F.2 1383 (11th Cir. 1983), cert. denied, 464 U.S. 1018, 104 S.Ct. 549 (1983). The standard articulated in McDonnell and Pace, supra, need not be specifically met where there is direct evidence of discriminatory intent. However, here no such direct evidence was presented. Further, Alphin did not prove that he was replaced by a person outside the protected group. Brigante was his replacement and Brigante was over age 40. Even though Brigante actually spent only one day on the job, Brigante was still Alphin's replacement. Hence, it can only be concluded that Alphin failed to prove his prima facie case.
Even if Alphin had proven a prima facie case, Sears clearly articulated legitimate, nondiscriminatory reasons for the termination of Alphin. Alphin was terminated for poor job performance. Alphin's age was not a determining factor in the decision to terminate him. Instead, the various
incidents and problems involving Alphin were well documented and justified the action taken.
Alphin failed to prove that the articulated reasons were pretext for the real discriminatory reason. The record is devoid of any comparative evidence, statistical evidence, or direct evidence to show that the articulated reasons for the termination are pretextual.
The only conclusion that can be reached is that Sears did not engage in an unlawful employment practice in its termination of Charlie Alphin. For these reasons, the Petition for Relief should be dismissed.
RECOMMENDATION
Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final
Order denying the relief sought by Charlie Alphin and dismissing the Petition for Relief.
DONE and ORDERED this 15th day of November, 1988, in Tallahassee, Florida.
DIANE K. KIESLING
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1446
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Charlie Alphin
1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of act: 1(1); 4(2); 8(6); 9(7); 14(8); 18(15); 21(9); 22(10); 23(5); 25(16); 28-30(12-14); 31(4); 32 (14); 33 (4); 34-37 (17-20); 40(1); 41(21); 52 (31); 55(35); 63(38); 65(39); 71(41); 89(44); 90(48); 93(55); 96(56); 102(64); 109(65); 110(66); and 121(73).
2. Proposed findings of fact 2, 3, 6, 11-13, 24, 38, 39, 42-51, 64, 66-68,
72-75, 77, 79, 81, 82, 86, 87, 88, 92, 95, 97, 101, 106, 111, 114, 119, and 120
are subordinate to the facts actually found in this Recommended Order.
3. Proposed findings of fact 7, 15, 53, 56, 57, 61, 62, 69, 70, 78, 80,
83, 108, and 115-117 are irrelevant.
4. Proposed findings of fact 10, 16, 17, 27, 54, 58-60, 76, 84, 85, 91,
94, 98-100, 103, 107, 112, 113, and 118 are rejected as being unsupported by the credible, competent and substantial evidence.
5. Proposed findings of fact 5, 19, 20, 26, 104, and 105 are unnecessary.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Sears, Roebuck and Company
Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 6(7); 7(11); 8-11(73); 12-16(22-26); 17(31); 18(32); 19-21 (28-30); 22-25(33- 36); 27(37); 28(15); 29-55(38-64); 57-64(65-72); 65(74); and 65(75).
Proposed findings of fact 26 and 56 are subordinate to the facts actually found in this Recommended Order.
COPIES FURNISHED:
Dawn Wiggins Hare Ross M. Goodman Attorneys at Law
226 South Palafox Street Pensacola, Florida 32501
Tracey I. Arpen, Jr. Linda C. Ingham Attorneys at Law Post Office Box 447
Jacksonville, Florida 32201
Office of the Clerk
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 20
Tallahassee, Florida 32399-1570
Donald A. Griffin Executive Director
Commission on Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Dana Baird General Counsel
Commission on Human Relations
325 John Knox Road Building F, Suite 240 Tallahassee, Florida
Docket for Case No: 88-001446
Orders for Case No: 88-001446
| Issue Date |
Document |
Summary |
|
Nov. 15, 1988 |
Recommended Order
|
Standards for age discrimination claim.
|
