Judges: ROBERT E. MEALE
Agency: Commissions
Latest Update: Jun. 16, 1989
Summary: The issue is whether Respondent is guilty of discrimination in employment on the basis of age.No age discrimination where petitioner fired due to poor job performance.
89-0711STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RICHARD BOOTS, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0711
)
PUBLIC SAVINGS LIFE )
INSURANCE COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held on May 4, 1989, in Palm Bay, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented as follows:
For Petitioner: N. James Turner
Buso & Turner, P.A.
17 South Lake Avenue, Suite 104 Orlando, Florida 32801
For Respondent: Joseph A. Woodruff
Waller Lansden Dortch & Davis 2100 One Commerce Place Nashville, TN 37239
STATEMENT OF THE ISSUES
The issue is whether Respondent is guilty of discrimination in employment on the basis of age.
PRELIMINARY STATEMENT
On May 17, 1988, Petitioner executed an Amended Charge of Discrimination against Respondent. Petitioner alleged that Respondent fired him on March 11, 1988, due to discrimination based on age. Petitioner alleged that he was 55 years old. On January 23, 1989, the Florida Commission on Human Relations entered a Notice of Determination: No Cause. On February 6, 1989, Petitioner filed a Petition for Relief. He alleged that Respondent had fired him without cause and had replaced him with a less qualified person over 10 years younger than Petitioner.
On April 18, 1989, Respondent filed a Motion to Dismiss. The motion was denied.
At the hearing, Petitioner called four witnesses, including himself, and offered into evidence one exhibit. Respondent called one witness and offered into evidence three exhibits. All exhibits were admitted into evidence, except Respondent's Exhibit 3.
The transcript was filed on May 26, 1989. Both parties filed a proposed recommended order.
FINDINGS OF FACT
Petitioner Boots is 56 years old. Prior to his termination, he had been employed in the life insurance business by Respondent or its predecessors for over 20 years.
Until early 1988, Petitioner's employer was Security Trust Life Insurance Company. During that year, Respondent or its parent, Southlife Holding Company, purchased the assets or stock of Security Trust Life Insurance Company. In any event, the result from Petitioner's point of view was that Respondent became his new employer.
Following the change in ownership, the operations of the two companies were combined. Prior and subsequent to the merger of operations, Petitioner was the manager of the Orlando district office, which was primarily involved in the sale of debit insurance. The physical turnover of operations in the Orlando office took place on or about March 7, 1988.
Prior to this date, representatives of Respondent had conducted meetings with the employees of Security Trust Life Insurance Company and discussed with them, among other things, the compensation that they could expect to receive as employees of the new company, especially during the start-up period.
Following the merger, Petitioner believed that Respondent was not living up to the promises that it had made to him and the employees under his supervision. Unable to reach his immediate supervisor, Petitioner called Ted Lazenby, who is president and chairman of the board of Southlife Holding Company. Petitioner voiced his complaints to Mr. Lazenby.
Following the telephone conversation, Mr. Lazenby contacted Petitioner's immediate supervisor, Frank Gregor, and expressed his displeasure with Petitioner and his attitude.
Mr. Gregor consulted with his immediate supervisor, James C. Bellamy, who is the senior vice president of Respondent. Messrs. Gregor and Bellamy had previously discussed Petitioner's attitude that Respondent was poorly managed and cheap with its employees.
Messrs. Gregor and Bellamy had already discussed Petitioner's record with Respondent. In general, it was not good, and the Orlando district did not show signs of the kind of growth necessary for a successful debit insurance business. Petitioner's production record was the worst in the division and the region. The manager of the next-worst district was also fired.
With Mr. Lazenby's complaint as a catalyst, Messrs. Gregor and Bellamy decided to terminate Petitioner. The following morning, Mr. Gregor visited Petitioner in the Orlando office and fired him, citing Petitioner's poor record combined with questionable judgment in complaining to the head of the holding company.
Respondent replaced Petitioner with a 44 year old man, who had been assistant manager of the Orlando office.
CONCLUSIONS OF LAW
The Division of Administrative Hearings lacks jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statute.
It is an unlawful employment practice for an employer to discharge or otherwise discriminate against any individual with respect to employment because of such individual's age. Section 760.10(1) (a), Florida Statutes. It is an unlawful employment practice for an employer to limit, segregate, or classify employees in any way that would deprive any individual of employment opportunities or adversely affect his status as an employee because of his age. Section 760.10(1) (b), Florida Statutes.
The provisions of Chapter 760 are analogous to those of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e et seq. Cases interpreting Title VII are therefore applicable to Chapter 760. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).
In a case involving allegations of disparate treatment, Petitioner must prove a prima facie case of employment discrimination. If he meets that burden, Respondent has the burden of going forward with the evidence to articulate some legitimate, nondiscriminatory reason for its action or failure to act. If Respondent produces such evidence, then Petitioner has the burden of going forward with the evidence to show that the proffered reasons are pretextual. See, e.g., Watson v. Fort Worth Bank and Trust, U.S. , 108 S. Ct. 2777 (1988).
Petitioner has failed to prove a prima facie case of discrimination based on age. He was fired for three reasons. He 1) complained about the policies of his new employer; 2) to the president and chairman of the board of the holding company of the new employer; and 3) at a time that the productivity of his district was poor.
Even if Petitioner had proven a prima facie case of employment discrimination, Respondent articulated legitimate, nondiscriminatory reasons for terminating Petitioner.
RECOMMENDATION
Based on the foregoing, it is hereby
RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed. ENTERED this 16th day of June, 1989, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings on this 16th day of June, 1989.
APPENDIX
Treatment Accorded Proposed Findings of Petitioner
1-7 Adopted or adopted in substance. There was a conflict in testimony between Mr. Gregor and Petitioner as to when the merger took place. Mr. Gregor's testimony has been given the greater weight, but the difference is immaterial to the outcome of the case.
8-9 Rejected as subordinate to the finding that Petitioner's performance was substandard.
Rejected as against the greater weight of the evidence.
Adopted.
Rejected as irrelevant.
Treatment Accorded Proposed Findings of Respondent
1 Adopted
2-3 Rejected as legal argument. 4-6 Adopted.
Rejected as recitation of testimony.
Adopted.
Rejected as irrelevant and subordinate.
10-12 Adopted in substance.
13-15 Rejected as subordinate.
16. Rejected as recitation of testimony.
COPIES FURNISHED:
Donald A. Griffin Executive Director
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
Dana Baird, Esquire General Counsel
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
Margaret Agerton, Clerk
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
N. James Turner Buso & Turner, P.A.
17 South Lake Avenue, Suite 104 Orlando, FL 32801
Joseph A. Woodruff
Waller Lansden Dortch & Davis 2100 One Commerce Place Nashville, TN 37239
Docket for Case No: 89-000711
Orders for Case No: 89-000711
