STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES A. BITTING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4855

)

CRAWFORD AND COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

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 November 14, 1990, at Tampa, Florida.

APPEARANCES

For Petitioner: James A. Bitting, pro se

11730 Marjorie Avenue

Tampa, Florida 33612

For Respondent: Louis P. DiLorenzo, Esquire

One Lincoln Center

Syracuse, New York 13202-1355 STATEMENT OF THE ISSUES

Whether Petitioner was discriminated against in employment because of physical handicap (back injury) and/or age.

PRELIMINARY STATEMENT

By Transmittal of Petition dated August 2, 1990, the Florida Commission on Human Relations (FCHR) forwarded James A. Bitting's, Petitioner, Petition for Relief from Unlawful Employment Practices previously filed with and investigated by FCHR. In his petition Bitting alleges he was discriminated against in employment because of his age (52) and handicap (back injury). On the copy forwarded "age (52)" was interlined, and some question arose at the hearing whether Petitioner was continuing to pursue this claim. For the purpose of this Recommended Order the claim of age discrimination will remain.

At the hearing Petitioner called 6 witnesses employed by Respondent and testified in his own behalf. Respondent called no additional witnesses, and 10 exhibits were admitted into evidence.

Proposed findings have been submitted by Respondent. All of these proposed findings are accepted except the first sentence of finding #23 which is rejected. Those proposed findings not included below were deemed unnecessary to the conclusions reached.

FINDINGS OF FACT

1. James A. Bitting, Petitioner, was first employed by Crawford and Company in its Tampa office as a property appraiser in October 1973, and remained so employed until he was terminated in July 1988.

   
   

2. Petitioner was involved in an automobile accident in 1983 while on company business and sustained back injuries which thereafter was the source of lower back pain if he remained in one position (either standing or sitting) for an extended period. However, he made no claim and submitted no medical evidence of this handicap until after his termination from employment by Respondent.

   
   

3. In 1987 and 1988, claims cases at Crawford decreased, and the regional office began telling the Tampa office that they should look to a reduction of personnel. Satellite offices at Brooksville and Plant City were closed and the adjustors in charge of those offices were brought in to the Tampa office.

   
   

4. At the time of his termination there were four outside adjusters at the Tampa office with Respondent being the only designated property adjuster. The others dealt primarily with casualty claims. Property claims had declined to a point there were insufficient claims to occupy one adjuster full-time and Petitioner was being given a few simple casualty claims.

   
   

5. The regional office and the Tampa office generally agreed that one appraiser should be terminated.

   
   

6. At the time this determination was made Respondent had the lowest evaluations of the four adjusters. Further, he had received the second phase of a progressive discipline notice (Ex. 2) stating his work performance was unsatisfactory due to non-compliance with work standards.

   
   

7. Petitioner presented no evidence to support his contention that his age was a proximate cause of his termination, other than his bare allegation that during this period no employee under 40 was terminated. Substantial evidence was presented that Respondent continues to have numerous people in it's work force older than 50 and 60 years of age.

   
   

8. During the presentation of his case, Petitioner referred repeatedly to the failure of Respondent to provide him with a comfortable office chair in which he could sit without hurting his back. Although several employees of Respondent were aware that Petitioner had a back problem, Petitioner, prior to his dismissal, never presented any medical evidence that he needed special equipment, or was physically unable to perform any tasks. He had continued to climb ladders to the roofs of houses when necessary in his job as property adjuster.

   
   

9. Following Petitioner's termination, his job was not filled. Respondent, as part of their reorganization, moved another adjuster into the department vacated by Petitioner, but this employee brought with her workers compensation claims which consumed 75-80% of her time.

   
   

10. Later Respondent also transferred into the Tampa office a property general adjuster to drum up more casualty business. Upon his arrival he did the property claims formerly done by Petitioner using about 10% of his work time, and spent 80-90% of his time soliciting new business. A property general

    adjuster is qualified to handle complex claims involving industrial losses while a property adjuster like Petitioner is limited to handling less complex residential claims.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 760.10(l) Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person because of that person's age or handicap. Chapter 760 Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 USC Section 2000e et seq. (Title

    VII) Hargis v. School Board of Leon County, 400 So.2d 103, 108 n.2 (FL 1st DCA 1981). As such, federal precedent construing the similar provisions of Title VII should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (FL 1st DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (FCHR 1985)

    
    

13. The Supreme Court established, and later clarified the burden of proof in disciplinary treatment cases in McDonald Douglas Corp. v. Green, 411 U.S.

    792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Company, 7 FALR 5468, 5475 (FCHR 1985).

    
    

14. McDonald Douglas places upon the plaintiff the initial burden of proving a prime facie case of discrimination. Where a discriminatory discharge is claimed, a prima facie case is proved under the McDonald Douglas approach by showing (1) the plaintiff is qualified for the position; (2) he was discharged; and (3) he was replaced by a person outside the protected class. Lee v. Russell County, School Board of Education, 684 F.2d 769 (11th Cir. 1982); Maggio v. Martin Marietta Aerospace, 9 FALR 2168 (FCHR 1986).

    
    

15. Proving a prima facie case serves to eliminate the most common non- discriminatory reasons for the plaintiff's disparate treatment. See, Teamsters

    v. U.S., 431 U.S. 324, 358 and N. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

    
    

16. Once the plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, non discriminatory reason for the challenged employment decision. The employer is required only "to provide admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus". Texas Department of Community Affairs v. Burdine, supra, at 257. The employer "need not persuade the Court that it was actually motivated by the proffered reasons. . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id at 254-255. This burden is characterized as "exceedingly light". Perryman v. Johnson Produce Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

17. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the plaintiff who must prove that the reason offered by the employer for its decision is not its true reason, but is merely a pretext. Here Petitioner has failed to prove that the position was vacated by his termination was filled by anybody, let alone by a person in a non-protected class. Accordingly, Petitioner has failed to establish a prima facie case of discrimination by reason of either age or handicap.

    
    

18. Further, Petitioner presented no evidence that his age (52) had any relation to respondent's decision to terminate him.

    
    

19. Similarly no credible evidence was presented that Respondent was aware Petitioner had a physical handicap, or if he had such a handicap that it had any effect on his work performance.

    
    

20. However, even if the facts presented by Petitioner established a prima facie case of discrimination, Respondent's evidence established a rational and business basis for Petitioner's termination, viz, that the position had become redundant with the reduced work load, and Petitioner was the most likely candidate for termination.

    
    

21. Even if Petitioner's handicap had been known to and considered by Respondent in making its decision to terminate him, under the facts here presented, Petitioner would still fail.

    
    

22. In Price Waterhouse v. Hopkins, 109 SCT 1775 (1989), the Court examined the parties' respective burdens of persuasion where the Plaintiff has proven with direct evidence that the employer's actions were motivated by a discriminatory animus. A plurality of the Court held that in such a case, the employer must prove by a preponderance of the evidence that it would have made the same decision even if discriminatory animus had not been a motivating part of its decision.

    
    

23. The Court cautions, however, that the holding does not alter the Burdine burden of proof allocation. The employer only bears the burden of persuasion after the plaintiff has proven discriminatory motivation. In a concurring opinion, Justice O'Connor explained that the application of this rule is limited to mixed-motive cases, that is, where the employer has created substantial uncertainty as to causation by knowingly giving substantial weight to an impermissible criterion.

    
    

24. In the instant case, Petitioner has failed to show by direct evidence that either age or handicap was a substantial factor in Respondent's decision making. In fact, Petitioner failed to show any impermissible motive by Respondent in terminating Petitioner from employment.

    
    

25. From the foregoing it is concluded that Petitioner has failed to establish a prima facie case that he was terminated from employment by Respondent either because of age or handicap. Even if Petitioner had established such a prima facie case, Respondent has established a non- discriminatory reason for his termination, and Petitioner has failed to show this established reason to be a pretext for his termination.

RECOMMENDATION

It is recommended that a Final Order be entered finding Petitioner has failed to prove that his termination from employment by Crawford and Company was influenced by Petitioner's age or handicap, and that his Petition for Relief be denied.

DONE and ENTERED this 18th day of December, 1990, in Tallahassee, Florida.

COPIES FURNISHED:

G. G. Harvey Manager, CFE

Post Office Box 5047 Atlanta, GA 30302

James A. Bitting 11730 Marjorie Avenue

Tampa, FL 33612

Louis P. DiLorenzo, Esquire One Lincoln Center

Syracuse, New York 13202-1355

Dana Baird

General Counsel and Acting Executive Director

Human Relations Commission

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32399-1570

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32399-1570

K. N. AYERS 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 this 18th day of December, 1990.

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004855

Orders for Case No: 90-004855