STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE O. WATERMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4974

) BERKSHIRE CORP., d/b/a PALM LANES, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on February 6, 1995, in Gainesville, Florida.

APPEARANCES

For Petitioner: George O. Waterman, pro se

2375 Southwest 167th Avenue Ocala, Florida 34481-8772

For Respondent: Ellis Pinder

Director of Operations

Berkshire Corp., d/b/a Palm Lanes Post Office Box 6919

Vero Beach, Florida 32961-6919 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Berkshire Corp., d/b/a Palm Lanes, discriminated against Petitioner, George O. Waterman, on the basis of his age.

PRELIMINARY STATEMENT

On or about September 21, 1993, Petitioner, George O. Waterman, filed a Charge of Discrimination with the Florida Commission on Human Relations (hereinafter referred to as the "Commission") alleging that "Palm Lanes" had terminated his employment based upon his age. On July 29, 1994, the Commission entered a Notice of Determination: Cause, finding that there was reasonable cause to believe that an unlawful employment practice had occurred.

On or about August 31, 1994, Petitioner filed a Petition for Relief with the Commission requesting a formal administrative hearing. The request for hearing was filed with the Division of Administrative Hearings on September 8, 1994 by Transmittal of Petition.

At the final hearing Petitioner testified on his own behalf and presented the testimony of Fredrick M. Nitsch, Donald E. Vachon, Jr., Thomas A. Fogell and Norman Kreps. Petitioner offered four exhibits, Petitioner's exhibits C, D, E and F. Those exhibits were accepted into evidence.

Respondent presented the testimony of Fredrick M. Nitsch, William Lahmon and Gale Hughes. Respondent offered one exhibit, which was rejected.

Subsequent to the final hearing, Respondent informed the undersigned by telephone that the name of the corporation that employed Petitioner was "Bloomfield Hills Corporation." In light of the fact that no evidence has been presented concerning the correct name of Respondent, no change has been made to the style of this case.

No transcript of the final hearing was filed. Petitioner filed a proposed recommended order on February 16, 1995. Respondent did not file a proposed recommended order. A ruling on each proposed finding of fact contained in Petitioner's proposed order has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, George O. Waterman, was more than 59 years of age at all times relevant to this proceeding.

      
      

   2. Respondent, Berkshire Corp., d/b/a Palm Lanes, is a corporation which operates a bowling alley known as Palm Lanes.

      
      

   3. Palm Lanes is located in Gainesville, Florida.

      
      

   4. At all times relevant to this proceeding Respondent also operated a bowling alley in Starke, Florida.

   
   

2. Petitioner's Employment with Respondent.

   
   

   1. Mr. Waterman was hired in March of 1993 as the head mechanic for Palm Lanes.

      
      

   2. Mr. Waterman has been employed as head mechanic of bowling alleys since 1958. Mr. Waterman attended two schools conducted by the manufacturer of the type of equipment used at Palm Lanes.

      
      

   3. Mr. Waterman was responsible for the maintenance of the bowling machinery at Palm Lanes.

      
      

   4. Mr. Waterman was also responsible for the installation of new bowling ball returns at Palm Lanes. The old returns had to be removed and new ones installed.

      
      

3. The Termination of Mr. Waterman's Employment.

   
   

   1. On September 8, 1993, Mr. Waterman was told that he was being transferred to Respondent's bowling alley in Starke or he could resign. Mr. Waterman agreed to the transfer.

   2. On September 10, 1993, Mr. Waterman was terminated as an employee of Respondent by the manager of Palm Lanes. The manager told Mr. Waterman that he had been expected by the owner and President of Respondent, Samy F. Bishai, to turn down the transfer and resign. The manager informed Mr. Waterman that he was being terminated because Mr. Bishai believed him to be too slow in installing the new ball returns.

      
      

   3. The manager of Palm Lanes that terminated Mr. Waterman had only been employed as manager for a short period of time. Therefore, he was without personal knowledge of Mr. Waterman's ability as head mechanic or his performance as an employee of Respondent.

      
      

   4. The decision to terminate Mr. Waterman's employment was made by Mr. Bishai.

      
      

   5. William Lahmon, the head mechanic of another affiliated bowling alley, worked with Mr. Waterman at Palm Lanes when Mr. Waterman first began to install the new returns. Mr. Waterman made several telephone calls to Mr. Lahmon seeking advice on how to install the ball returns. Mr. Lahmon concluded that Mr. Waterman's work was inadequate and slow. Mr. Lahmon informed Mr. Bishai of his conclusions. Mr. Lahmon was also asked by Mr. Bishai whom was the better qualified for the head mechanic's job at Palm Lanes, Mr. Waterman or Donald E. Vachon, Jr., a former employee of Palm Lanes. Mr. Lahmon told Mr. Bishai that Mr. Vachon was the better qualified. Mr. Lahmon's conclusions were unrefutted.

      
      

   6. After the new ball returns were installed, it was necessary to turn on two alleys in order to get one alley's ball return to work.

      
      

   7. At no time prior to his termination from employment was Mr. Waterman counseled or reprimanded concerning his job performance.

      
      

   8. Respondent maintained no records concerning Mr. Waterman's employment or performance while employed by Palm Lanes.

      
      

4. Mr. Waterman's Replacement.

   
   

   1. Mr. Waterman was replaced by Donald E. Vachon, Jr. Mr. Vachon's date of birth is March 11, 1966.

      
      

   2. At the time that Mr. Vachon replaced Mr. Waterman, Mr. Vachon was 27 years of age.

      
      

   3. Mr. Vachon had previously worked for the owner of Respondent. Mr. Vachon left employment with Respondent and was rehired in August of 1993.

      
      

5. Conclusion.

1. Respondent articulated a non-discriminatory reason for terminating Mr. Waterman's employment. Mr. Waterman failed to prove that he was terminated from employment with Respondent due to his age.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

2. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

   1. Burden of Proof.

      
      

3. The Florida Human Rights Act provides that it is an unlawful employment practice for an employer to "discharge" any individual because of the individual's "age". Section 760.10(1)(a), Florida Statutes.

   
   

4. Mr. Waterman had the ultimate burden of proving by a preponderance of the evidence that the Respondent intentionally discriminated against him because of his age. Brand v. Florida Power Corporation, 633 So.2d 504 (Fla. 1st DCA 1994). See also, McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973); Irby v. Allstate Insurance Co., 12 F.A.L.R. 2034, 2037 (Florida Commission on Human Relations 1989); and Martin v. Monsanto Co., 10 F.A.L.R. 3886, 3896 (Florida Commission on Human Relations 1988).

   
   

5. Discriminatory motive or intent may be proved by direct evidence or statistical evidence. Additionally, since discriminatory motive or intent is seldom capable of proof by direct evidence, the United States Supreme Court has established a multi-step analytical model which allows discriminatory motive or intent to be inferred on the basis of circumstantial evidence. Perryman v. Johnson, 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas, 411

   U.S. at 802-804. See also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981).

   
   

6. The Commission has adopted the following analytical model in analyzing cases under the Florida Human Rights Act:

   
   

   1. The individual must present a prima facie case of discrimination;

   2. If the individual presents a prima facie case of discrimination, the employer must adequately rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for its actions; and

   3. The individual must prove that the employer's articulated reason for its actions is merely a pretext and that he or she has been discriminated against by the employer.

      
      

      1. Mr. Waterman's Prima Facie Case.

         
         

7. In order to establish a prima facie case of discrimination based upon age, Mr. Waterman was required to prove:

   
   

   1. That he is in a protected group due to his age;

   2. That he was qualified for the position he was employed in; and

   3. That he was terminated from the position.

      Brand, 633 So.2d at 510. See also Pushkin v. Regents of University of Colorado, 658 F.2d 1372 (10th Cir. 1981); and Hunter v. Winn-Dixie Stores, Inc., FCHR Case No. 82-0799 (Feb. 23, 1983).

      
      

8. Mr. Waterman met his burden of proving a prima facie case of discrimination.

   
   

   1. Respondent Articulated a Non-Discriminatory Reason For Terminating Mr. Waterman' Employment and Mr. Waterman Failed to Prove He was Terminated Because of His Age.

   
   

9. Respondent proved that Mr. Bishai made the decision to terminate Mr. Waterman's employment. Respondent also proved that Mr. Lahmon witnessed Mr. Waterman's work, concluded that it was inadequate and slow and so informed Mr. Bishai. Mr. Waterman failed to refute this testimony. The only witnesses that testified on Mr. Waterman's behalf concerning his performance were individuals who worked for him. Those individuals were not head mechanics and, therefore, did not possess the knowledge of the requirements of the job that Mr. Lahmon possessed.

   
   

10. After the Respondent articulated a legitimate, nondiscriminatory reason for terminating Mr. Waterman's employment, Mr. Waterman was required to prove that Respondent's explanation for its actions was pretextual and that the actual reason he was fired was due to his age. Mr. Waterman failed to do so.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on

Human Relations dismissing the Petition for Relief filed by George O. Waterman.

DONE AND ENTERED this 24th day of March, 1995, in Tallahassee Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1995.

APPENDIX

Mr. Waterman submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Respondent did not file a proposed order.

Mr. Waterman's Proposed Findings of Fact

1. Accepted in 2-4.

2. Accepted in 7.

3. Accepted in 8.

4. Accepted in 9. 5-6 Not relevant.

7 Accepted in 5. 8-10 Not relevant.

1. See 10. The last two sentences are taken out of context and are not supported by the weight of the evidence.

2. See 15.

3. Not relevant.

14-15 Hereby accepted.

1. Accepted in 16-17 and hereby accepted.

2. Not relevant. See 12-13.

3. Not relevant.

4. Hereby accepted.

5. Not relevant.

6. Hereby accepted.

COPIES FURNISHED:

George O. Waterman

2375 Southwest 167th Avenue Ocala, Florida 34481-8772

Ellis Pinder

Director of Operations

Berkshire Corp., d/b/a Palm Lanes Post Office Box 6919

Vero Beach, Florida 32961-6919

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

325 John Knox Road Bldg F, Ste 240

Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 94-004974

Orders for Case No: 94-004974