STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD B. SPEARS, )

)

Petitioner, )

vs. ) CASE NO. 89-0236

)

EWELL INDUSTRIES, )

)

Respondent. )

)

)

RECOMMENDATION

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 case on April 12, 1989, at Tampa, Florida.

APPEARANCES

For Petitioner: Suzanne LaBerge, Esquire

501 First Avenue North Suite 1626

St. Petersburg, Florida 33701

For Respondent: Thomas P. Rebel, Esquire

1500 Resurgens Plaza

945 East Paces Ferry Road Atlanta, Georgia 30326

By Amended Petition for Relief dated April 17, 1989, Harold B. Spears, Petitioner, by and through his attorney, seeks compensation and loss of fringe benefits based on allegations that Petitioner's employment was terminated by Ewell Industries, Respondent, and he was not considered for the position of plant manager because of his age. At the hearing Petitioner called five witnesses, including himself, Respondent called six witnesses and 32 exhibits were offered into evidence. All exhibits were admitted except Exhibit 3, 4, 5 and 6, which were depositions of persons who appeared and testified at these proceedings, and Exhibits 21 and 22 which were rejected for lack of authentication.

Proposed findings have been submitted by the parties. Treatment according those proposed findings is contained in the Appendix attached hereto and made a part hereof.

The issues here presented are:

1. Whether Petitioner was hired into a permanent or temporary position at Respondent's DeFuniak Springs facility on November 9, 1987; and, if permanent, was he thereafter terminated on April 18, 1988 because of his age.

2. Whether Petitioner applied for the plant manager's position vacated by Dennis Duncan; if so, did Respondent reject his application because of his age.

FINDINGS OF FACT

1. Harold B. Spears was 68 years of age at the time his employment with Ewell Industries was terminated.

   
   

2. Ewell Industries, Inc. (Ewell) operates concrete block manufacturing facilities located in Largo and DeFuniak Springs, Florida (DeFuniak).

   
   

3. Spears was an employee of Pinellas Industries when the Largo facility was acquired by Ewell in 1982 and became an employee of Ewell at that time as manager of the block plant at Largo.

   
   

4. In 1984 Spears was involved in an automobile accident which damaged the alignment of his muscles and bones, causing swelling and severe pain throughout his body. At times the swelling and pain became severe and Spears wanted to retire.

   
   

5. Between 1984 and 1987 Spears frequently announced his intention to retire. On at least two occasions, Ewell hired people to be trained to assume Spears' job, and after they had been trained Spears withdrew his notice of an intent to retire.

   
   

6. Finally, in December 1986, immediately prior to his scheduled retirement in January 1987, Spears condition was again improving and he wanted to reconsider retiring. John McGregor (McGregor), vice president of operations, told Spears that this time he should go through with his retirement.

   
   

7. Spears retired from Ewell in January 1987.

   
   

8. After Spears' retirement McGregor recommended him for a position at

   C.E. Parrish where Spears later worked part-time to supplement his social security income.

   
   

9. During the early fall of 1987 when Ewell was in the process of purchasing Sikes Concrete Products the owner of Sikes called Ewell's president, William McCue, to inform him that Sikes' plant manager had quit and to ask if McCue had anyone he could send to run the plant.

   
   

10. McCue advised Sikes he did not have anyone available but suggested Spears might be interested in part-time work.

    
    

11. In October 1987, McGregor discussed with Spears the possible position at Sikes Concrete for a six to eight month period and told him of the potential purchase of Sikes by Ewell.

    
    

12. Sikes negotiated a contract with Spears in which Spears was paid annualized salary of $42,000 to help rehabilitate the Sikes block plant at DeFuniak and to train a manager for the plant. In addition, Sikes agreed to pay for lawn and pool services on Spears' home in Seminole, for rental of a lot for Spears trailer at DeFuniak Springs and a mileage allowance for Spears to make a monthly return visit to Seminole to check on his permanent home.

    
    

13. When Spears started work at the DeFuniak plant, Marty Carpenter was designated the acting manager of the plant and the individual Spears was

    intended to train. Spears clearly recognized his position as a consultant at the Sikes plant at DeFuniak.

    
    

14. In November 1987, Ewell consummated the purchase of the Sikes plant at DeFuniak.

    
    

15. On November 10, 1987, all of the employees at the DeFuniak plant were assembled and told of the transfer of ownership. The former Sikes employees were told that they would all continue in their present position and at the same pay they received from Sikes until subsequent changes may be deemed necessary. Spears received from Ewell the same pay and special benefits he received from Sikes.

    
    

16. Because of Spears' former association with Ewell, McCue told Pamela Wells, Ewell's administrative manager, to allow Spears to participate in the company group insurance plan and to withhold income and social security taxes for Spears. To accomplish this, Ms. Wells had Spears sign the same form the permanent employees used to transfer from Sikes to Ewell. At this time Spears and Ewell management both understood that Spears continued to operate as a consultant to train Carpenter as plant manager.

    
    

17. Subsequent to the takeover it became apparent that Carpenter would not work out as plant manager. Spears was scheduled to be terminated and leave around March 15, 1988, and when it became necessary to replace Carpenter, Spears was requested to stay on an additional month to help the new plant manager, Dennis Duncan, until he became familiar with the plant.

    
    

18. During the second week in April, Lewis, the operations manager, discussed with Duncan, Spears' April 15 departure date. Duncan wanted to keep Spears on longer to help with the problems.

    
    

19. On April 18, 1988, Lewis reported to Pitts, the general manager, Sikes Division of Ewell, that Spears was still on the job. Pitts then called Spears and told him that his (Spears) work was finished at the DeFuniak plant and to go home.

    
    

20. Spears had learned from Duncan that Duncan was interviewing for another job on April 27, 1988 and might be leaving Ewell.

    
    

21. Spears didn't think Pitts had the authority to fire him and he called McGregor to tell him Duncan was leaving. McGregor was out-of-town and Spears talked to McCue who told Spears he would have McGregor call. A few days later McGregor spoke with Spears and he also told Spears that Spears was no longer needed and his work at DeFuniak was finished.

    
    

22. Several times during the six to eight months Spears worked at DeFuniak he complained about the weather, spoke of his wife's problems in the colder climate, and expressed a desire to return to Seminole.

    
    

23. Prior to the hiring of Duncan as plant manager, no one in Ewell management was aware that Spears was, or might be, interested in the job as plant manager.

    
    

24. Concrete block plant managers' compensation generally runs between

    $25,000 and $35,000 per year. When Spears retired as plant manager at the Largo plant, his annual compensation was approximately $35,000.

25. Spears never told McCue or anyone else in Ewell management that he was interested in the DeFuniak plant manager's job if Duncan left.

    
    

26. Spears remained in the DeFuniak area until May 7, at which time the company-paid rent on his trailer lot ran out.

    
    

27. In early May, Duncan notified McGregor that he was resigning as plant manager.

    
    

28. McCue, McGregor and Pitts discussed Duncan's replacement and the decision was made to promote Ron Zablow who was working at the Largo plant and who had acquired most of his knowledge about block plants from Spears. Zablow was promoted to plant manager at a salary of between $24,000 and $26,000 per year.

    
    

29. Neither McCue, McGregor nor Pitts considered hiring Spears for the plant manager position at DeFuniak nor would they have hired him had they been aware he was interested in the job after Duncan left. There had already been two plant managers at DeFuniak in the last six months, Spears' on again-- off again position prior to his retirement in 1987 detracted from his attractiveness, and no one, including Spears, thought he would be interested in the plant manager's job at a salary less than he had received as a consultant, which was approximately twice the salary paid to Zablow.

    
    

30. Ewell Industries has over 400 employees. Of those 400, .25% (one employee) is over 70, 4.3% are over 60, 8.3% are over 50, and 43.4% are over 40 years of age. During the calendar year 1988 the percentage of terminations in the foregoing categories with respect to the overall work force was: 2.1% for employees over 60, 10.9% for employee over 50, and 25.5% for employees over 40.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

32. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person because of that person's age. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seg. Hargis v. school Board of Leon County, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981). As such, federal precedent construing the similar provisions of Title VII should be accorded great deference.

    
    

33. In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 240 (1981) the Supreme Court established and clarified the burden of proof in disparate treatment cases. McDonald Douglas places upon the plaintiff the initial burden of proving a prima facie case of discrimination. In a failure to hire or promote case, the plaintiff must prove 1) that he belongs to a protected group; 2) that he was qualified for the job for which the employer was seeking applicants; 3) that he was rejected despite his qualifications; and 4) that after rejection, the position remained open and the employer continued to seek applicants with plaintiff's qualifications. McDonald Douglas v. Green, at p.802.

    
    

34. In order to make a prima facie showing of discrimination based on age plaintiff must show 1) that he was between the ages of 40 and 70 at the time of his discharge; 2) that he was qualified to assume another position; and 3) that

    there is evidence, circumstantial or direct, from which a fact finder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue. Anderson et al. v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2d DCA 1986).

    
    

35. To establish a prima facie case the plaintiff must present facts which "raise an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Texas Department of Community Affairs v. Burdine, supra at p.254. The prima facie case serves to eliminate the most common non- discriminatory reason for the plaintiff's rejection. See Teamsters v. United States, 431 U.S. 324, 358 and n.44 (1977).

    
    

36. Petitioner fits into the age category in which discrimination may be claimed and he was fully qualified, by experience, for the job as plant manager.

    
    

37. Petitioner here has two arrows in his bow. On the one hand he is saying he was discharged from employment because of his age, while on the other hand he claims he was discriminated against when he was not hired as plant manager at DeFuniak to replace Duncan.

    
    

38. With respect to the allegations regarding his termination of employment, the evidence is unrebutted that Petitioner was employed by Sikes as a consultant to get the block plant at DeFuniak in good operating condition and to train a plant manager to run the plant. This job was expected to last approximately six months. The evidence is also unrebutted that when Ewell Industries purchased Sikes, all of Sikes' employees, including Spears, were transferred to Ewell Industries at the same position and same pay they held at Sikes. Because McCue, president of Ewell told his administrative manager, Pamela Wells, to give Spears the opportunity to join the company's health insurance plan and have his taxes withheld; and, to accomplish this more easily, she signed him up on a permanent employee form, Spears now contends this made him a permanent employee, despite the fact that he, along with all the other Sikes employees, were clearly told they were being transferred to Ewell without change in position or salary. To adopt Spears' contention would certainly put a personnel "form" far above the substance of what was intended.

    
    

39. Since Spears was never designated plant manager at DeFuniak, never paid as plant manager at DeFuniak and was never shown on the original organizational chart as filling a billet at the DeFuniak plant, he could hardly be fired from that position. Accordingly, he has failed to establish a prima facie case of discrimination by reason of being fired from a job he never held.

    
    

40. Spears' alternate allegation, that because of his age he was not hired to replace Duncan as plant manager when the latter departed, is also supported by no evidence. First, Spears never applied for that job when it became vacant. Second, no evidence was submitted that Respondent, when the job became vacant, offered to pay even $30,000 per year to the plant manager selected to fill the job. The evidence is clear that Respondent never intended to replicate Spears' annualized salary of $50,000 in the plant manager at DeFuniak. Nor was evidence submitted that Spears would have accepted the position if offered at half his former annualized salary. Absent evidence that the job of plant manager and salary therefor was established, that Spears applied for this job at the salary offered and was rejected, Spears has not taken the initial step necessary to establish a prima facie case.

41. That Respondent practices age discrimination in its relations with its work force is clearly refuted by statistics regarding its work force as contained in finding #30 above. Further, Respondent's management personnel recommended Spears to Sikes as a man experienced in block plant operations who might be willing to work on a temporary basis until a plant could be trained.

    At the time this recommendation was manager made those making the recommendation were aware that Spears was in his upper 60s. This hardly indicates any pattern of age discrimination in employment.

    
    

42. To Spears' contention that he was fired so a less expensive younger replacement could be hired, it is sufficient to repeat that Spears never held the plant manager job at DeFuniak; accordingly, he could not be fired from that position. Once the plant manager position opened the employer had near total discretion in designating the salary it was willing to pay the person selected for that position. In such a situation, the employer pays what the job market demands and it is no offense to hire a qualified plant manager at below market rates, assuming no violation of the minimum wage law.

    
    

43. In summary, when Spears became an employee of Ewell Industries in November 1987, it was as a consultant to train a plant manager--not as a permanent employee as plant manager; that this position was then expected by all parties to terminate on March 15, 1988, and was later extended one month; that Spears never applied for the job as plant manager at DeFuniak and would not have accepted the job if offered to him at $35,000 per year; and that because of his on again--off again retirement actions prior to his original retirement in 1987 and Spears' expressed concerns about his wife's health at DeFuniak, Ewell Industries would not have considered Spears for the job as plant manager for these reasons alone, in view of their need for stability at this plant.

    
    

44. From the foregoing, it is concluded that Harold B. Spears is in the age category which can be subject to discrimination but that he has failed to present a prima facie case of discrimination either in being wrongfully fired by Ewell Industries or by Ewell Industries' wrongful failure to hire him because of his age. Even if the evidence could be construed to sustain a prima facie case Ewell Industries presented competent and substantial evidence that the termination of Spears as a consultant and the failure to hire him as plant manager was totally unrelated to Spears' age and Spears has presented no evidence that these nondiscriminatory reasons were pretextual.

RECOMMENDATION

It is therefore,

RECOMMENDED that the Petition by Harold B. Spears for relief from discrimination by Ewell Industries because of his age be dismissed.

DONE and ORDERED this 31st day of May, 1989, in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1989.

APPENDIX

Treatment Accorded Petitioner's Proposed Findings 1-2. Included in HO #1 and #19.

1. Rejected. Spears indicated he would have applied for the plant manager's job before Duncan was hired if he knew it would become available.

2. Implicit in HO #3.

3. Rejected as unsupported by the evidence.

4. Included in HO #27 and #28.

5. Rejected.

6. Rejected.

7. Rejected. See Conclusion of Law #8.

8. Included in HO #16.

9. Included in HO #12.

10. Included in HO #3 and #7.

11. Rejected.

12. First sentence rejected. No such plant manager salary had been established.

13. Rejected as irrelevant.

14. Rejected.

15. Rejected.

16. Rejected as summary of the testimony of witness -- not facts.

17. Rejected as summary of the testimony of witness -- not facts.

18. a, b, - accepted. c - rejected.

    1. - accepted,

    2. - accepted that Spears told MacGregory after

Duncan was hired that he (Spears) was interested in the job.

f, g,

h, i,

j, k,

1. - accepted.

2. - rejected. Spears was told his job as consultant was terminated.

3. - accepted.

o - rejected. All Sikes employees, of which Spears was one, were told they would keep their same position and salary after the Ewell takeover.

p - rejected. q - rejected. r - accepted.

s - rejected as irrelevant in these proceedings. t - rejected as irrelevant in these proceedings. v - accepted.

1. - accepted.

2. - rejected as irrelevant in these proceedings. y - accepted only insofar as Spears' employment

with Ewell was the same it had been with Sikes before the takeover.

z - accepted. aa, bb,

cc - accepted. dd - rejected. ee, ff,

gg - accepted.

hh - rejected insofar as it characterizes this witness as nervous and concerned about his job because of his testimony.

ii - rejected. jj - rejected.

kk - rejected. Refer to Spears on again--off again retirement plans.

ll - accepted.

mm - rejected. Spears had already retired from his permanent job with Ewell.

nn - accepted. oo - rejected.

pp - rejected as irrelevant.

Treatment Accorded Respondent's Proposed Findings

1. Accepted as Spears' unrebutted testimony.

2. Included in HO #27. 67-68. Included in HO #28.

1. Included in HO #29.

2. Included in HO #30.

COPIES FURNISHED:

Suzanne LaBerge, Esquire

501 First Avenue North Suite 1626

St. Petersburg, Florida 33701

Thomas P. Rebel, Esquire 1500 Resurgens Plaza

945 East Paces Ferry Road Atlanta, Georgia 30326

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird, Esquire

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Margaret Agerton, Clerk Commission on Human Relations Building F, Suite 240 Tallahassee, Florida 32399-1925

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

HAROLD B. SPEARS, EEOC Case No. 15D880344

Petitioner, FCHR Case No. 88-6922

v. DOAH Case No. 89-0236

EWELL INDUSTRIES, INC., FCHR Order No. 89-037

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Harold B. Spears filed a complaint of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended. Sections 760.01-760.10, Fla. Stat. (1987). Petitioner alleged Respondent Ewell Industries, Inc., unlawfully discriminated against him on the basis of age (68).

The allegations of discrimination set forth in the complaint were investigated. On October 25, 1988, the Executive Director found no reasonable cause to believe an unlawful employment practice occurred. A redetermination was issued on December 28, 1988, which affirmed the initial no cause finding.

On January 6, 1989, Petitioner filed a Petition for Relief from an Unlawful Employment Practice, requesting that a formal proceeding be conducted on the claim. The petition was referred to the Division of Administrative Hearings (DOAH). Fla. Admin. Code Rule 22T-8.016(1). On May 31, 1989, DOAH Hearing Officer K. N. Ayers entered a Recommended Order of dismissal.

Public deliberations were held on July 27, 1989, in Tallahassee, Florida, before this panel of commissioners.

FINDINGS OF FACT

Having considered the hearing officer's Findings of Fact, and being particularly mindful of the record in this cause, 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.

CONCLUSIONS OF LAW

In the Recommended Order, the hearing officer indicates that section 760.10(1)(a), Florida Statutes, protects only those individuals between the ages

of 40 and 70. This construction of the statute is incorrect. According to its own terms, the statute prohibits discrimination in employment on the basis of any age, birth to death. See Sims v. Niagara Lockport Industries, Inc., 8 FALR 3588 (FCHR May 1986). Since Complainant was 68 years old at time of the alleged discrimination, the error by the hearing officer is harmless. Otherwise, the hearing officer's Conclusions of Law, based upon his Findings of Fact, are a correct application of law. The hearing officer's conclusions are hereby adopted but with the foregoing correction.

DISMISSAL

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

The parties have the right to seek judicial review of this Order. The Commission and the appropriate district court of appeal must receive a notice of appeal within 30 days of the date this Order is filed with the clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rules of Appellate Procedure 9.110(b)(c)

DONE AND ORDERED this 18 day of August 1989. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Learna G. Ramsey, Panel Chairperson;

Commissioner Elena Flom; and Commissioner Jack Robertson.

FILED this day of 21st 1989 in Tallahassee, Florida.

Margaret A. Jones

Clerk of the Commission

Copies Furnished:

Suzanne LaBerge, Attorney for Petitioner Thomas P. Rebel, Attorney for Respondent

K. N. Ayers, DOAH Hearing Officer

Harden King, Legal Advisor for Commission Panel

Docket for Case No: 89-000236

Orders for Case No: 89-000236