BENNIE J. LITTLE, )
vs. ) CASE NO. 90-7299
Respondent. )
) CARLTON E. AKINS, )
vs. ) CASE NO. 90-7662
Respondent. )
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Pensacola, Florida.
For Petitioners: Owen N. Powell, Esquire
For Respondent: Kathleen J. VanDetta, Esquire
100 Peachtree Street Northwest The Equitable Building, Suite 600 Atlanta, Georgia 30303-1909
The issues to be resolved in this proceeding concern whether the Petitioners were the victims of an unlawful employment practice by being denied promotions allegedly on account of their age.
This cause concerns Petitions for Relief from an allegedly unlawful employment practice filed by the Petitioners, Bennie J. Little and Carlton E. Akins, former employees of the Monsanto Company, the Respondent herein. The Petitioners in this consolidated proceeding allege, in essence, that they were denied a promotion opportunity in favor of a younger person because of their age. They maintain in conjunction with this that they were fully qualified for
the position sought, which would have constituted a promotion for each of them. They were applying for the same position known as "Operations Technician" in the Technical Center of the Monsanto Company. The Petitions filed were in due course transmitted to the Division of Administrative Hearings and assigned to the undersigned Hearing Officer for conducting formal proceedings with regard thereto.
The cause ultimately came on for hearing as noticed in Pensacola, Florida.
The Petitioners presented two witnesses and two exhibits which were admitted into evidence. The Respondent presented the testimony of four witnesses and had eight exhibits admitted into evidence. Upon motion, the cause was consolidated; and a hearing was conducted as a consolidated proceeding. This Recommended Order is rendered as to both Petitions on a consolidated basis.
The parties elected to order a transcript of the proceedings and availed themselves of an extended briefing schedule at the culmination of which they submitted proposed findings of fact and conclusions of law. Those proposed findings of fact are addressed and ruled upon in this Recommended Order and separately in the Appendix attached hereto and incorporated by reference herein.
Petitioner Little was employed by Monsanto, the Respondent, for 34-1/2 years until his retirement on January 1, 1990. Petitioner Akins is currently employed by Monsanto and commenced employment with that firm on December 13, 1955. The Monsanto Company operates a manufacturing facility in the vicinity of Pensacola, Florida, which converts certain chemical feed stocks to synthetic filaments and/or yarns for use in the textile and fiber industries.
Petitioner Akins is currently a "Group 12 Maintenance and Instrument Mechanic", an hourly "manufacturing unit" position. Prior to his retirement, Petitioner Little was a "Group 11 Maintenance and Instrument Mechanic", also an hourly manufacturing unit position. Monsanto's Pensacola facility operates with a manufacturing unit employing hourly wage employees and a Technical Center which employs essentially all salaried employees. The two facilities within the plant are separate and distinct units.
In December 1989, Monsanto posted two vacancies for a salaried "Operations Technician" position in the Technical Center.
The procedure for a promotion or transfer from an hourly job to a salaried Technical Center job is contained in the Nonexempt Selection Procedure Manual, in evidence as Petitioners' Exhibit 1 and Respondent's Exhibit 1. When a vacancy is announced in a salaried position, interested employees submit a "Request for Salaried Job" and "Employee Placement Profile" to the plant employment office. Thereafter, a screening committee comprised of plant personnel determines whether the self- nominated candidates are qualified for the vacancy. That committee selects the qualified candidates and submits the list of those candidates to the Technical Center personnel superintendent. The department with the vacancy thereafter receives notification from the Technical Center personnel department of the candidates to be interviewed.
The employees who nominated themselves for the vacant Operations Technician position were Petitioners Little and Akins, Terry Nettles, W. D. Tidwell, and Joni Troutman. All of the candidates who were self-nominated for that Operations Technician position were interviewed by a committee consisting of three technical employees; Charles Livingston, Lawrence Brantley, and Gary Green. All these individuals on the committee were over the age of 40.
The committee interviewed each candidate in accordance with the evaluation criteria set forth in the Nonexempt Job Selection Procedure Manual. Some of the factors which the committee considered were the knowledge and skills of each candidate, applicable experience, past job performance, communication skills, attendance records, human-relation skills, and employee initiative.
The committee's objective was to select the most qualified candidate for the position based upon the aforementioned factors. Seniority was considered by the committee, but only as one of many factors. Although seniority is a deciding factor in manufacturing unit professions, seniority is not the deciding factor in the selection process in the Technical Center. In accordance with Monsanto's equal employment opportunity policy, age was not a consideration in the selection process. The committee did not ask any candidate any questions about age, nor did the committee ask the candidate when he or she planned to retire from the company. Following the interview, the committee selected Richard T. Nettles, age 47, as the most qualified candidate for the Operations Technician position.
Mr. Nettles had been employed by Monsanto from December 1963 until he was terminated by a reduction in force or layoff in June 1985. After leaving Monsanto, Mr. Nettles worked for the James River Corporation at a similar type of plant in an Operations Technician position, the type of position at issue in this proceeding. His job was very similar to the one he held at Monsanto. Mr. Nettles was subsequently rehired by Monsanto in September 1989 as an hourly Manufacturing Unit Employee. During his previous employment with Monsanto, Mr. Nettles had been in an Operations Technician position in the Technical Center for approximately 18 years. During that time, Mr. Nettles' performance evaluations were consistently above average or excellent. Additionally, Mr. Nettles had recently completed college level courses in computers, science and metallurgy, as well as a chemical operator training course at Pensacola Junior College. Mr. Nettles was the only applicant for the Operations Technician job who had ever performed the Operations Technician job in the past.
Mr. Nettles was a probationary employee at the time he applied for the Operations Technician position. Monsanto has no policy which prohibits probationary employees from applying for promotions. Rather, the probationary period is simply a period in which a newly hired employee is being evaluated for purposes of retention and during which no job-related benefits accrue. Further, Mr. Nettles was not barred from applying for the Operations Technician position because he was required to spend any length of time in his prior job.
Promotions or transfers from hourly to nonexempt salaried positions in the Technical Center are governed by the Nonexempt Selection Procedure Manual. The Nonexempt Selection Procedure Manual contains no restrictions on upward mobility. Monsanto has never followed a policy of restricting the upward mobility of its employees. Ultimately, Mr. Nettles was evaluated by the committee, the appropriate recommendations were made, he was found to be the most qualified candidate for the job and thus was offered the Operations Technician position, which he accepted.
Petitioners Little and Akins were dissatisfied with the committee's selection and thereafter pursued the plant's appeal procedure to appeal the decision to hire Mr. Nettles for that position. In the final step in that appeal procedure, the Petitioners met with plant manager Leon Hebert. Mr. Hebert played no part in the selection of Mr. Nettles. Indeed he has no authority over the Technical Center hiring process at all. In their meeting, Mr. Hebert explained to Petitioners why Mr. Nettles was selected over them for their Operations Technician position, most notably, because of his past experience on the job. Mr. Hebert also explained the differences in the selection procedure in the manufacturing unit as compared to the Technical Center. Mr. Hebert made no comments about the Petitioners ages during this meeting, although Mr. Akins maintains he made a comment to the effect that the job in question was not to be a "swinging gate for retirees." Even if Mr. Hebert made such a comment, it is not probative of discrimination or discriminatory intent on the part of the employer for the reasons discussed in the conclusions of law below involving Mr. Hebert playing no part in the decision concerning who to hire for the position in question.
Shortly after the vacancy for the Operations Technician position was filed, a similar vacancy was announced for a Spinneret Technician position in the Technical Center. The candidate selected for that position, Mr. Walter Williams, was the oldest candidate who applied for the job.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).
In an age discrimination action, the "Plaintiff" (Petitioner) has the ultimate burden of proving discrimination by a preponderance of the evidence. Although a Plaintiff may present direct evidence of discrimination, direct evidence of discrimination rarely exists. Hence, Plaintiffs more often use circumstantial evidence to prove discrimination. See Williams v. General Motors Corp., 656 F.2d 120, 130 (5th Cir., Unit B, 1981). In McDonald Douglas Corporation v. Green, 411 U.S. 792 (1973), the U. S. Supreme Court set forth the order of proof in discrimination cases where disparate treatment is alleged:
The employee must establish a prima facie case;
The employer can attempt to rebut it;
The employee can attempt to show that the employer's proffered explanation is pre- textual.
In an age discrimination action, the Plaintiff may establish a prima facie case by proving the following: 1/
That he is a member of the protected group;
That adverse employment action was taken against him, e.g. discharge, demotion, or failure to hire or promote;
That he was replaced by a person outside the protected group; and
That he was qualified for the position for which he was rejected.
Carter v. City of Miami, 870 F.2d 582, citing Castle v. Sangamo Weston, 837 F.2d 1550, 1558 (11th Cir. 1988); Goldstein v. Manhattan Industries Inc., 758 F.2d
1435, 1442 (11th Cir.), cert. denied 474 U.S. 1005, 106 S.Ct. 525 (1985), and
cases quoted therein.
The Respondent concedes that the Petitioners satisfied the first two requirements of this test. That is, Mr. Little, age 56, and Mr. Akins, age 58, are members of a protected class and were not promoted to the Operations Technician position. However, with regard to the third part of the test, the evidence showed that the Petitioners were not replaced by a person outside the protected group. It was not disputed that Mr. Nettles was age 47 when he was selected for promotion to the position in question. Hence, the Petitioners were "replaced" by a person within the protected group (i.e., between the ages of 40 and 70). The Respondent acknowledges that the 11th Circuit has declined to hold that a Plaintiff's inability to show that he was replaced with someone under 40 is an absolute bar to the establishment of a prima facie case. See Carter v. City of Miami, 870 F.2d at 583. Nonetheless, it is significant that the Respondent did not choose a person under the age of 40 to fill the position for which Petitioners applied at least insofar as that relates to the lack of existence of a discriminatory motive.
The Petitioners also failed to meet the fourth part of the prima facie case test. The evidence showed that the Petitioners were, at best, minimally qualified for the Operations Technician position. Both Petitioners admitted at the hearing that they had never operated the equipment in the Technical Center. In contrast, Mr. Nettles testified that he had extensive experience operating the equipment because he had held the Operations Technician position during his previous employment with Respondent for many years. Mr. Nettles' testimony was supported by that of Fred Peacock and Charles Livingston, who testified about Nettles' extensive experience with Monsanto. Consequently, Nettles was substantially more qualified than the Petitioners for the Operations Technician position.
If it be assumed, arguendo, that the Petitioners established a prima facie case, the Respondent clearly rebutted any inference of discrimination. Indeed, the evidence showed that Monsanto did not promote Petitioners Little and Akins to the Operations Technician position for legitimate, nondiscriminatory reasons.
All the evidence showed that Mr. Nettles received the coveted position because he was the most qualified candidate for it. As Mr. Peacock and Mr. Livingston testified, the committee members who interviewed the candidates for the position selected Nettles rather than Mr. Little or Mr. Akins, solely because Mr. Nettles was much more qualified than the Petitioners due to the fact that he had performed in the capacity of Operations Technician for at least 18 years. At the hearing, the Petitioners admitted that they had never performed that job. In contrast, Mr. Nettles had over 18 years of experience in operations as well as experience with the knowledge of computers and college courses in science and business. Additionally, Mr. Nettles' work experience as an Operations Technician had been consistently good to excellent. He was able to perform the duties of the Operations Technician position almost immediately. Little and Akins would have required extensive training. Hence, the Respondent articulated a legitimate nondiscriminatory reason for not promoting Little or Akins to the Operations Technician position based on Nettles' abundant qualifications for the job and Petitioners' lack of or minimal qualifications for the job.
The Respondent has met its burden of producing a legitimate nondiscriminatory reason for its hiring decision. In the U. S. Supreme Court's decision in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255,
101 S.Ct. 1089, 1094-95 (1981), the Court held that the defendant must only meet a burden of production rather than persuasion, to rebut the plaintiff's prima facie case. The Eleventh Circuit has acknowledged that an employer's failure to promote an applicant because a person actually promoted was more qualified is a non- discriminatory reason for promotion which precludes the employee from recovering financially. See Hill v. Seaboard Coastline Railroad Company, 757 F.2d 771, 774-75 (11th Cir. 1985).
The Petitioners did not prove that the Respondent's proffered reasons for failing to promote them to the position in question were pretextual. Since the Petitioners did not prove that the articulated reasons for failing to promote them to the position were false or pretextual, they have not established that a discriminatory employment practice has occurred and consequently they should not prevail in this proceeding. Grigsby v. Reynolds Metals Company, 821 F.2d at 597. A Plaintiff may establish a pretext for discrimination "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employers proffered explanation is unworthy of credence." Carter v. City of Miami, supra., and cases quoted therein. In the case at hand, the Respondent, in deciding to promote Mr. Nettles, relied only upon the legitimate, non-discriminatory reason that Mr. Nettles possessed qualifications superior to those of Mr. Little or Mr. Akins. Mr. Nettles was clearly the most qualified candidate for the position based upon his prior 18 years experience in the same position. The Petitioners did not establish they were better or even as well qualified as Nettles for the Operations Technician position. The Petitioners had no previous job experience in operations. Indeed, the Petitioners did not dispute Nettles' experience or qualifications. Rather, the Petitioners argued that they should have been promoted to the Operations Technician position in the interest of a "diversified work force." This argument is refuted by the reality of the workplace as evidenced by the actual posted notice for the Operations Technician position. The notice stated that one of the desired attributes of candidates for the job would be "prior operations experience." Mr. Nettles had such experience, and the Petitioners did not. Accordingly, Nettles more closely met the requirements of the Operations Technician position than did the Petitioners. Indeed it was reasonable and rational for the Respondent to hire an experienced employee rather than fill the position with a totally inexperienced employee.
The Petitioners did not produce any evidence suggesting that the Respondent's explanation for promoting Mr. Nettles was not the true reason behind the action. In Williams v. Housing Authority of the City of Sanford, Florida, 709 F.Supp. 1554, 1563 (M.D. Fla. 1988), for example, United States District Court for the Middle District of Florida held that the Plaintiff failed to prove that the defendants' articulated, nondiscriminatory reasons for not appointing the Plaintiff as executive director were a pretext where the plaintiff did not prove that her background made her more qualified for the executive director position than the other candidates or that the successful candidate possessed inferior qualifications to those of the plaintiff. Id. at 1563.
Similarly, in the instant case, Mr. Nettles' prior experience in the Operations Technician position clearly made him the most qualified candidate for the job. Nettles had a proven performance record in that position. The Petitioners did not have such a performance record, having never worked in the position. Mr. Nettles testified at hearing that he was able to perform the
Operations Technician position immediately. In contrast, the Petitioners would have required a substantial amount of training. Hence, the Petitioners failed to prove that the Respondents' explanation was pretextual.
The Petitioners failed to show that Monsanto discriminated against them in its selection of Nettles for the position in question because Nettles was ineligible for the job. They based his alleged ineligibility upon two different provisions in the Plant Policy Procedure Manual. The Petitioners' understanding of these provisions is misplaced however.
At hearing, the Petitioners attempted to show that Mr. Nettles was ineligible for promotion to the job in question because he was a probationary employee. The written probation policy does not support this assertion. As both Little and Akins admitted during cross-examination, the policy regarding the probationary period contains absolutely no language which forbids a probationary employee from applying for a promotion. Furthermore, Fred Peacock testified that Monsanto has never prevented probationary employees from applying for promotional opportunities. Mr. Peacock further testified that the probationary period is simply a period of time when no benefits accrue. The Petitioners offered no evidence to show otherwise. Accordingly, it is clear that Mr. Nettles' admitted status as a probationary employee did not prevent him from being eligible for promotion to Operations Technician.
The Petitioners also attempted to show that Mr. Nettles was ineligible for promotion to the job in question because he was required to spend a certain amount of time in service in his prior job. This argument ignores the distinction between the manufacturing unit and the technical unit. Nettles was rehired as an hourly manufacturing unit employee. Subsequent to his application for the Operations Technician position, but prior to being offered the position, Mr. Nettles was transferred to an hourly chemical operator position in the manufacturing unit. Approximately one week after he started the chemical operator job, Nettles received the promotion to Operations Technician.
The Petitioners argued Nettles was required to remain in the chemical operator position for a period of two times the training period with a minimum of six months and a maximum of two years as stated in the policy entitled "Transfer, General Considerations" contained in the Plant Policy Manual. However, as Mr. Peacock clearly testified, as a matter of practice, this policy does not apply to promotions to nonexempt Technical Center positions like the Operations Technician position. Rather, this policy applies only to transfers between hourly manufacturing unit positions. Therefore, as a practical matter, this policy only prevented Nettles from attempting a lateral transfer to a different hourly manufacturing unit position. It did not prevent him from seeking a promotion to a nonexempt Technical Center position. Moreover, the Nonexempt Job Selection Procedure Manual, which applies to the selection of employees to nonexempt positions, contains no time and service restrictions on promotions. Indeed, it establishes Monsanto does not restrict the upward mobility of its employees. Therefore, Nettles was not barred from applying for any promotion.
Additionally, the Petitioners attempted to show that Nettles was ineligible for the Operations Technician position because he did not completely fill in the "employee placement profile." This is an incorrect interpretation of Monsanto's personnel policy and practices however. Charles Livingston testified that the employee placement profile served only to provide information to the screening committee. Based upon that information, the committee selects the candidates who are minimally qualified for the posted job. There is no
requirement that a candidate must fill in every blank space on the form. The lack of information will simply impact upon the committee's decision as to qualification. Further, the form does not preclude the committee from considering past performance not listed on the form. Indeed, a review of both Petitioners' profiles reveals they did not provide all information that they argued Nettles was required to provide. For example, Little's profile lists only one past performance rating leaving four blank spaces. The Petitioners did not prove that Nettles' failure to fill in every blank on the Employee Placement Profile Form rendered him ineligible.
The Respondent established a consistent nondiscriminatory manner in which it selects employees for promotion. Discrimination consists of treating like cases differently. See Mira v. Monroe County School Board, 687 F.Supp. 1538 (S.D. Fla. 1988). The Respondent did not treat like cases differently. In fact, the Respondent acted in a consistent manner in filling a subsequent vacancy in a Spinneret Technician position. Shortly after filling the Operations Technician position, the Respondent posted a vacancy in the position of Spinneret Technician. This is an entry level Technical Center position. After consideration of the various candidates' qualifications and experience, the interviewing committee selected Walter Williams, the oldest candidate of the lot for the position based upon his relevant experience and performance record in the precision machine area of the Plant Central Maintenance Shops. As in the case of the Operations Technician position, the committee selected the employee with the best qualifications to perform the job. The committee did not consider age as a determining factor. Thus the selection of Williams for the Spinneret Technician position is evidence of Monsanto's non-discriminatory procedure for selecting candidates for promotion.
NO DIRECT EVIDENCE OF DISCRIMINATION
In an employment discrimination case, the employee has the ultimate burden to establish the existence of discrimination. This burden can be satisfied by offering direct evidence of discriminatory intent. See Pace v. Southern Railway System, 701 F.2d 1383, 1386-88 (11th Cir. 1983). If there is direct evidence is discriminatory intent, the burden then shifts to the defendant company to prove by a preponderance of evidence that the same employment decision would have been reached, even absent the discriminatory intent. See Williams v. Housing Authority of Sanford, Florida, 709 F.Supp. 1554, 1561-62 (M.D. Fla. 1988); Bell v. Birmingham Linen Service, 715 F.2d 1552, 1557 (11th Cir. 1983), cert. denied 467 U.S. 1204, 104 S.Ct. 2385 (1984).
Direct evidence is evidence, which if believed, proves the existence of a fact in issue without inference or presumption. See Black's Law Dictionary, 415 (5 Ed. 1979); Carter vs. City of Miami, 87 F.2d 581-82 (11th Cir. 1988).
In the case at hand, the Petitioners asserted that a statement allegedly made by Plant Manager, Leon Hebert, is direct evidence of discrimination. Specifically, Petitioner Akins testified that during a meeting held subsequent to the Committee's final decision to select Nettles, Mr. Hebert said something to the effect that the job was not going to be a "swinging gate for retirees." Mr. Hebert denies making the statement. Even assuming arguendo that Hebert made the statement, the evidence is not sufficient to establish direct evidence of discrimination because the comment did not constitute a blatant remark made by a decision maker indicating the Respondent's intent to discriminate on the basis of age. Not every comment concerning a person's age constitutes direct evidence of discrimination. Young vs. General Foods Corporation, 840 F.2d 825, 829 (11th Cir. 1988). See also Carter vs. City of Miami, supra. These cases held that remarks merely referring to characteristics
associated with increasing age, or facially neutral comments from which a plaintiff has inferred discriminatory intent are not directly probative of discrimination. In this case the Petitioners have inferred that the comment indicates an intention to discrimination on the basis of age. This comment, even if made, is at most only suggestive of discriminatory intent rather than probative of it.
Further, even if it could be found that Hebert made the comment, and the comment is evidence of discrimination, the evidence at hearing clearly showed that Hebert played absolutely no part in the decision not to promote the Petitioners to the subject position. In Mira vs. Monroe County School Board, supra., the court rejected the plaintiff's offer of direct evidence of discrimination because the remark was attributed to an individual who had no effective role in the decision not to promote the plaintiff to the assistant director of transportation position. Although the individual allegedly made the discriminatory remark, interviewed the plaintiff, as well as the other applicants for the position, the court found that another individual, Mr. Highsmith, was solely responsible for the decision not to promote plaintiff to the assistant director position. Moreover, the Southern District of Florida concluded in that opinion that any remarks which the plaintiff alleged were made to her by the interviewer, including a statement to the effect that "some male employees in the transportation department did not want to work for a female supervisor," were not causally connected to the plaintiff's failure to obtain the position. Id. at 1547. See also Adams v. United Airlines, 578 F.Supp. 26 (N.D. Ill. 1983). Such apparently discriminatory comments cannot serve as evidence of the employer's discriminatory motives where the supervisor or other person making the comments was not involved in the employment decision concerning which the complaint involved in the case was made.
Similarly, in Mauter v. Hardee Corporation, 825 F.2d 1554 (11th Cir. 1987), the Eleventh Circuit held that a statement by an individual who played no part in the decision to terminate a plaintiff was too attenuated to present a genuine issue of material fact as to the defendant's discriminatory intent. Id. at 1558. In that case, the plaintiff alleged that a vice president of the defendant company had stated that: "The Hardee Corporation was going to weed out the old ones." That vice president later denied making such an assertion and stated that he had no knowledge of facts suggesting that age had any bearing on the decision to terminate that plaintiff. In spite of an assumption by the Eleventh Circuit Court in that opinion that the vice president made the statement to the plaintiff, the Eleventh Circuit affirmed the district court's award of summary judgment for the employer based upon those facts, because the vice president, who allegedly made the comment, had no part in the employment decision at issue.
Even if the Hearing Officer credited the allegation that Mr. Hebert made the subject statement, the Petitioners failed to establish that Hebert made the decision not to promote Petitioner Akins to the Operations Technician position, or had any part to play in that decision. The interviewing committee, consisting of Messrs. Lawrence Brantley, Gary Green, and Charles Livingston,
was solely responsible for the decision not to promote the Petitioners. Thus, Hebert's motivation is actually irrelevant to the action and cannot constitute evidence of Monsanto's discriminatory intent even if Mr.
Hebert had discriminatory intent, which was not definitively established.
In summary, the mere fact that disgruntled employees., who were passed over for promotions, happened to be within a protected age group does not indicate that the employer committed any violation of the law. The Petitioners' conclusory assertions that they did not receive the promotion in question because of age were insufficient to establish discrimination. The Petitioners, as and for the reasons delineated above, have been unable to establish a prima facie case of discrimination by direct or circumstantial evidence. Conversely, the Respondent Monsanto established by unrefuted evidence that it had followed its consistent, well-established policies in selecting the best and most qualified applicant for promotion, that relative qualifications were the reason for the decision in question and that age had been irrelevant to that decision. Consequently, the Petitioners cannot prevail.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that a Final Order be entered by the Commission on Human Relations dismissing the Petitions of Bennie J. Little and Carlton E. Akins in their entirety.
DONE and ENTERED this 2nd day of February, 1992, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1992.
1/ Section 760.10 of the Florida Human Rights Act is similar to and based upon the Federal Age Discrimination Employment Act, 29 U.S.C., Sec. 621, et. seq.
Morrow v. Duval County School Board, 514 So.2d 1086 (Fla. S.Ct. 1987).
APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 90-7299 AND 90-7662
Petitioners' Proposed Findings of Fact: 1-3. Accepted.
4. Rejected as a recitation of testimony and not a finding of fact.
5 Accepted, but not, in itself, probative as to the material issues.
Respondent's Proposed Findings of Fact: 1-31. Accepted.
Dana Baird, Esq.
Owen N. Powell, Esquire Post Office Box 789 Bonifay, FL 32425
Kathleen J. VanDetta, Esquire Mack & Bernstein
100 Peachtree Street N.W.
ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS 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 CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY 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.
