STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OSCAR C. GREEN, )
)
Petitioner, )
)
vs. ) CASE NO. 95-1361
) ATC/VANCOM MANAGEMENT, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on August 17, 1995, in Pensacola, Florida.
APPEARANCES
For Petitioner: Donna Gardner, Esquire
209 South Baylen Street Pensacola, Florida 32501
For Respondent: Karl Boyles, Esquire
127 Palafox Place Pensacola, Florida 32501
STATEMENT OF THE ISSUE
The issue to be resolved in this proceeding concerns whether the Petitioner was discriminated against on account of his age by being "laid off" and then rehired in a demoted position.
PRELIMINARY STATEMENT
This cause arose upon the filing of a Petition for Relief by Oscar C. Green (the Petitioner) a 64-year-old white male. The Petitioner alleges that he held a position with the Respondent employer as foreman from 1986 to 1989, at which time he was replaced by a younger employee, under the age of 40. He filed a claim of discrimination concerning that demotion, and a Settlement Agreement (agreement) was entered into, by which the Petitioner agreed to dismiss his pending complaint, in exchange for computer training. He understood that would make him a more valuable employee to the Respondent.
In 1993, the Petitioner's position as stock clerk in the maintenance department was eliminated, and he was laid off. The Petitioner was then notified that he could return to the Respondent's employ as a bus driver, earning $5.00 per hour less than he had been making in the maintenance department. The Petitioner maintains that he was prevented from gaining necessary computer training and "locked out" of access to the computer system, which was necessary to his maintenance department position. He contends that
younger employees, including his replacement, were given computer training and retained because of their computer skills.
The Petitioner also maintains that while working in the two positions as foreman and stock clerk, he was the only non-salaried employee to be denied "night differential pay" for certain years of his employ with the Respondent. The Petitioner maintains that these factors, coupled with many age-related comments allegedly made about his age and about other employees over the age of 40, show a pattern of discrimination by the Respondent toward the Petitioner and other employees, over the age of 40, as to their age.
The cause came on for hearing as noticed. At the hearing, the Petitioner presented eight witnesses and had three exhibits admitted into evidence, and the Respondent presented four witnesses and had nine exhibits admitted into evidence. The parties ordered a transcript of the proceedings and elected to file Proposed Recommended Orders containing proposed findings of fact and conclusions of law. Those proposed findings of fact have been addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
The Petitioner is a 64-year-old white male born on April 25, 1932. He began his employment with the Respondent on April 1, 1985, at which time he had
23 years of experience in bus-transit systems as a helper, lead mechanic, master mechanic, and garage foreman. He is currently employed by the Respondent as a bus driver.
The Respondent is an employer in the State of Florida for purposes of Chapter 760, Florida Statutes. It is engaged in operating a public transit bus system in Escambia County, Florida, under contract with that county. A necessary part of this operation is the maintenance of buses and the maintenance, by contract, of other government vehicles at the Respondent's maintenance shops.
The Petitioner became employed by the Respondent on April 1, 1985. He held the position of foreman in the maintenance department from 1986 to 1989.
He was then replaced by a younger employee (under the age of 40) and was allegedly demoted to stock clerk (also called storekeeper). He filed a claim of age discrimination at that time, but the matter was negotiated and settled with a written agreement. Under the terms of the agreement, the Petitioner agreed to dismiss his complaint in exchange for receiving computer training, arranged and paid for by the Respondent. The Petitioner at that time understood that computer training would make him a more valuable employee to the Respondent, help him keep his position in the maintenance department and obtain later promotions.
The negotiated settlement was reached on the Petitioner's previous discrimination complaint on March 14, 1990. That agreement provided as follows:
Respondent will provide complainant with training on computerized maintenance software;
Complainant will not be retaliated against as a result of having filed a comp- laint of alleged employment discrimination.
Pursuant to the agreement, the Respondent paid for the Petitioner to enroll in a computer course at Pensacola Junior College. Prior to that course, the Petitioner was admittedly computer illiterate. The Petitioner enrolled in the course but did not complete it. He stated that it was too advanced for him, and he wanted to return to Pensacola Junior College at a later date to take a different course. He never reported that fact to the Respondent, however, and never sought additional formal computer training to be provided for by his employer. The Petitioner never advised his employer that the course was too advanced for his level of knowledge. He found another course at Pensacola Junior College, which he could have taken, but he never enrolled in that course and did not request the company to pay for or accommodate any further education. The Petitioner never complained about a lack of proper computer training.
According to the terms of the agreement, he could have filed a complaint with the Florida Commission on Human Relations (Commission) for breach of the agreement but never once complained to the Commission that the Respondent was breaching the agreement by failing to provide him with the required training. The evidence is not clear as to whether the Petitioner registered himself or whether the Respondent registered the Petitioner in the computer course which he attempted. The Respondent, however, denies any knowledge of the level of the course. The Petitioner himself testified that no beginners class was available at the Milton, Florida, campus at that time. It is also noteworthy that Richard Lindsey, the person who holds the position that the Petitioner aspires to, never received any formal computer training at company expense.
In 1993, the Petitioner's position as stock clerk was eliminated, and he was laid off. He was laid off by the Respondent as part of a reduction in force ordered by the county government for budgetary reasons. After being laid off from his position as storekeeper, the Petitioner was immediately rehired as a bus driver. This paid approximately $5.00 per hour less than his storekeeper position.
The decision to lay off employees was based upon a budget cut imposed by the Escambia County Commission, which is undisputed. There had been no layoffs by the Respondent since 1988, and none had been anticipated, or could have been anticipated, until that budgetary decision was announced.
The Fleetmate software computer program, which was used by the Respondent to keep track of maintenance matters, was purchased in 1988. The only extensive formal training given by the vendor was in 1988, soon after purchase. In 1988, the Petitioner was a foreman in the rehabilitation facility and had no need to use or to be trained on the Fleetmate system. There may have been a brief update of formal training, but the date is not certain. However, all training on the Fleetmate software after 1988, which took place after the Petitioner became storekeeper, was given by Richard Lindsey.
Mr. Lindsey gave instruction on Fleetmate to Mr. Pete Barnes, who was age 50 or over, and Mr. Barnes learned how to become proficient in using the program on his own. Mr. Lindsey also trained Mr. Hilton Turner, who was about
50 years old, to use the program, in approximately 10 hours. Mr. Lindsey also furnished training to the Petitioner for 15 to 20 hours. Mr. Lindsey was the only person employed by the Respondent who was competent to provide that computer instruction. Mr. Lindsey trained him in the same way that Fleetmate had trained employees by showing screens on the computer and how to enter data.
After receiving formal computer training to some degree at Pensacola Junior College and the training from Mr. Lindsey, as well as the opportunity for on-the-job training, including the opportunity for informal self-instruction by asking for help from other employees or supervisors, the Petitioner has the following problems:
By his own admission, he has problems turning on the computer after receiving the course at PJC and training from Mr. Lindsey.
He made numerous data entry mistakes, by his own admission, after training.
Unchallenged, unrefuted testimony of Mr. Barnes establishes that the Petitioner would frequently forget his password or mis- spell it and thus failed to get entry into the computer and frequently made errors in
data entry. This was corroborated by testimony of the Respondent's witness, Mr. Lindsey.
Mr. Lindsey was relatively competent in the use and understanding of computers. He learned the Fleetmate program rapidly, even before the formal training program was administered. Mr. Westbrook, testifying for the Respondent, characterized Mr. Lindsey as a computer expert. Mr. Barnes, testifying for the Respondent, agreed with that estimation. The Petitioner admits that Mr. Lindsey is more skillful in using the computer, and the Fleetmate program, than is the Petitioner and that Mr. Lindsey had about 15 years of computer-related experience.
The storekeeper's position held by the Petitioner from 1989 until his demotion in 1993 was limited in its need for computer usage. The Respondent's witness, Mr. Barnes, established that only five to seven percent of the storekeeper's position was computer related. Mr. Westbrook had a similar estimate of about 10 percent in his unrefuted testimony. During most of his time as storekeeper, the Petitioner was paid as, and functioned as, a night foreman, as well.
The Petitioner was never disciplined during this employment and received no complaints from the Respondent about his admittedly limited computer skills in the performance of his position as storekeeper. This is because he could perform his position as storekeeper in competent fashion without computer skills, since they were only a small percentage of the skills and duties involved in that position.
The position as maintenance accounting clerk, on the other hand, is highly computer related. Mr. Westbrook, testifying for the Respondent, established that the maintenance accounting clerk position was about 90 percent involved in computer usage, which was corroborated by the testimony of Mr. Lindsey and Mr. Barnes. The Petitioner himself confirmed that Mr. Lindsey had always been the "input guy" in operating the computerized maintenance accounting system, "Fleetmate".
The Petitioner contends he was "locked out" of the computer because he would come to work and could not get into the computer. He believes that the employer or its supervisors were preventing him from access to the computer, as an element of his discriminatory claim. This is not true, however. It was established that the Petitioner, with his low level or nonexistent computer skills, even after training, was frequently simply unable to remember how to
turn his computer on. He would accuse people of tampering with his computer, but this was not shown to be the case. Mr. Barnes did not have to come "unlock" the computer for him, as the Petitioner maintained in his testimony. Rather, he merely had to repetitively, on different days, show the Petitioner how to turn the computer on, which he could not seem to remember.
The Petitioner stated that he was locked out of vital portions of the computer program. Mr. Barnes established, however, that everyone was locked out of some parts of the program, based upon their need to have access to it. Even Mr. Barnes, a supervisor, was locked out of certain portions of it. Mr. Barnes established that the Petitioner was never locked out of any area he needed access to in order to perform his job functions but only areas that he could harm by mistakenly damaging the program. This fact is consistent with the testimony establishing that the Petitioner was never disciplined or received complaints about his performance as a storekeeper, since it involved very little computer usage (and concomitant need for access). Mr. Lindsey confirms this in showing that the Petitioner was locked out of "file maintenance" access since he could have damaged the entire computer program if he had made a mistake while he had entry to the file maintenance portion of the program. This reason for limiting his access is plausible given the other unrefuted testimony establishing the Petitioner's history of extensive, repetitive entry errors in his attempted use of the computer.
The Petitioner contends that he was not provided a computer when he should have been. He never complained to the Commission, pursuant to his settlement agreement, however. He states that one was bought for him in mid- 1992 and was not made operational for six months, although Mr. Lindsey believes that he had it as early as 1991. Mr. Barnes opined that he had it as early as 1990. In any event, he did have one for his use at least six months prior to his lay-off; and both Mr. Lindsey and Mr. Barnes tried to train him in its use.
The remaining employment position, after the layoff occurred, was that of maintenance accounting clerk. As stated above, it required substantial computer skills. At the time of the layoff, the Petitioner was not capable of performing that job, according to the evaluations of Mr. Westbrook and Mr. Barnes. The Petitioner admitted that he could not have performed the job at the time of his demotion, although he blames the Respondent for his failure to acquire the necessary computer skills.
The Petitioner also complains concerning an alleged disparity regarding a "night differential" method of payment. No evidence was presented, however, which could show that the lack of night differential pay for the Petitioner was age related. No evidence was presented that younger people received the night differential pay and older people did not based upon their age classification. The Petitioner admits that he was not in a position covered under the company's labor agreement and that no nonunion employee who worked at night received night differential pay. The Petitioner was a nonunion employee not covered by the labor agreement. Additionally, the Respondent's witness, Mr. Westbrook, established that no management or nonunion personnel had ever received night differential pay.
The Petition for Relief also alleges that younger employees were paid more for similar positions than was the Petitioner. No evidence was presented that any younger foreman made more money than the Petitioner as foreman. Unrefuted testimony was presented that while the Petitioner was a storekeeper, he was often paid as a night foreman and received more pay even than Mr. Lindsey. The foreman's pay was about $1.00 per hour more, by the Petitioner's
own estimate. There was no evidence presented that Mr. Lindsey made more money than the Petitioner, when the Petitioner was a storekeeper and Mr. Lindsey was the maintenance accounting clerk. Mr. Westbrook's unrefuted testimony establishes that no supervisor, similarly situated to the Petitioner, received more pay than did the Petitioner. Indeed, the only similarly-situated supervisor actually received less pay. There is simply no evidence of any discriminatory practice in pay based upon the Petitioner's age.
The Petitioner references, in its evidence, certain purported "age- related comments", which it seeks to show established a pattern of age discrimination. The only statement concerning age that was ever made directly to the Petitioner, according to his own testimony, was made by Mr. Barnes when he stated "Hey, old man, what are you up to now?" The Petitioner alleges that Mr. Barnes also asked him when he was going to retire on a couple of occasions. Mr. Barnes denies this allegation. The Petitioner admits that he was not psychologically affected by these remarks and that Mr. Barnes had never told him, in effect, that he was too old to do his job.
The Petitioner's witnesses, Ella McClaren, Kenneth Edgerton, John Trifero, and Laura Nell Cary, although testifying in support of his claim of age discrimination, acknowledged that they had never heard any age-referencing remarks made about the Petitioner from Mr. Barnes or any person they could identify. Matilda Townsend, testifying for the Petitioner, had never heard such age-referencing remarks from Mr. Barnes, either. She states, however, that she did hear such remarks about the Petitioner but was unable to identify the source.
The Petitioner only complains of age-related remarks coming from Mr. Barnes, his supervisor. He does not mention any remarks made by Mr. Lindsey, but Mr. Lindsey himself admits to calling the Petitioner "an old fart" and that the Petitioner also insulted Mr. Lindsey on occasion. Mr. Lindsey characterized this as "picking" and admits to calling the Petitioner old and senile, even saying so to Mr. Barnes, the supervisor. That was merely a statement of Mr. Lindsey's frustration at having to constantly help the Petitioner do his job, including looking up parts and other computer-related matters. It had nothing to do with any opinion that the Petitioner should be terminated due to his age. Mr. Lindsey was not his supervisor and did not make the subject employment decision. Even the Petitioner's witness, Mr. Rollin, states that he sometimes called the Petitioner "old" as a joke between friends.
The Petitioner's witness, Jerome Allen, testified that he heard Mr. Barnes say "the old bastard, I should have fired him when I had a chance." However, Mr. Allen admits that this was approximately five years ago, long before the layoff or demotion in question. Additionally, the Petitioner's witness, Billy Rollin, states that he heard Mr. Barnes say "I should have fired the old son of a bitch, he doesn't know how to turn a computer on." Even if this were true, and Mr. Barnes referred to the Petitioner as an "old son of a bitch", the subject of, and reason for, his remonstrance about the Petitioner was his lack of computer knowledge. The comment was not shown to evidence an employer-held or condoned adverse perception concerning the Petitioner's age, the use of the word "old" notwithstanding.
When the Petitioner was laid off, he was immediately rehired as a bus operator by the Respondent, admittedly for lower salary, but he never missed a paycheck. The Respondent did not simply lay him off and render him unemployed. Further, he had no experience as a bus operator and required considerable
training for that position. The company's policies for such a layoff situation contain no requirement that he be retained or placed in another position.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes (1991).
Section 760.10, Florida Statutes, makes it unlawful to discriminate on the basis of race, color, religion . . . age, handicap, or marital status. The federal court decisions dealing with Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination and Employment Act at 29 U.S.C. 621, et seq. are applicable in construing Chapter 760, Florida Statutes, which was patterned after Title VII. Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (1st DCA 1991).
In McDonnell-Douglass Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973), the United States Supreme Court established an allocation of the burden of production, the requirements for a prima facie case of discrimination and the order for presentation of proof in Title VII discriminatory treatment cases. Under that formula, to establish a prima facie case, an applicant must prove (1) membership in a protected group; (2) that the plaintiff was qualified for the position sought; (3) that the applicant was not hired for the position sought; and (4) that the position remained open and was ultimately filled by someone from outside the protected class. Establishment of a prima facie case creates the presumption of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 354, 101 S.Ct. 1089, 1094 (1981). This presumption places upon the Respondent the burden of explanation in order to rebut the prima facie showing. This is described generally as articulating a nondiscriminatory reason for the action complained of. Burdine, supra. Once articulation of a nondiscriminatory reason for the employment action at issue is made, the Petitioner has an opportunity to demonstrate that the articulated reason is pretextual and really amounts to unlawful discrimination. Thus, under the McDonnell-Douglass standard, the burden of production is shifted to the Respondent; but the ultimate burden of persuasion of the trier of fact, that intentional discrimination occurred, remains at all times with the Petitioner.
In St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993), the Supreme Court noted that once a defendant in a Title VII case has succeeded in carrying its burden of production regarding a legitimate, nondiscriminatory reason for the challenged action, then the McDonnell-Douglass framework, with its presumptions and burdens, is no longer relevant. The defendant's "production" or articulation, whether persuasive or not, requires the trier of fact to proceed to the ultimate question of whether the Petitioner has proven that the Respondent has intentionally discriminated against the Petitioner for the unlawful basis alleged. The employee continues to bear the burden of persuading the trier of fact as to the ultimate fact of discrimination, even though the trier of fact may conclude that the employer's proffered reason is unpersuasive or even contrived.
Because the employer has the burden of production, and not one of persuasion, the employer is not required to persuade the trier of fact that its decision was actually motivated by the reason given but, rather, must produce a legitimate, nondiscriminatory articulated reason. If the employer satisfies that burden of production, then the fact finder must be persuaded by the
employee that that proffered reason was really a pretext for an intentional discrimination and that burden may be satisfied by showing, directly, that a discriminatory reason, more likely than not, motivated the decision, or indirectly, by showing that the proffered reasons are not worthy of belief. See, Department of Corrections v. Chandler, 582 So.2d 1183 (1991 Fla. App.).
If the Respondent is required to defend its case based upon the "layoff" prima facie case requirements of Roper v. Peabody Coal Company, 47 F.3d 925 (7th Cir. 1985), there may be a prima facie case established here, since the Petitioner proved that he was in a protected class; that he was performing his old job according to legitimate requirements; and that he was discharged and Mr. Lindsey was retained. However, even this analysis fails, since there were unrefuted, nondiscriminatory reasons for the retention of Mr. Lindsey and the dismissal of the Petitioner.
The Petitioner presented no evidence that any individual not of his protected class, or even in his protected class, has been paid night differential pay while he was denied night differential pay. The evidence is clear that only union bargaining unit employees are paid night differential pay, which the Petitioner is not.
The Petitioner has presented no evidence that any individual not of his protected class, or even in his protected class, was paid more money for the same work, unless the position was covered under a valid labor agreement requiring that.
The Petitioner has not presented any direct or indirect evidence of discrimination other than some isolated instances of age-referencing remarks, which are dealt with below. He has not presented any comparative instances of disparate treatment, other than his layoff and the retention of Mr. Lindsey. There is no persuasive evidence of record which would show that age was a motivation for any action taken toward the Petitioner.
Prima Facie Case Issue
In terms of whether the Petitioner established a prima facie case, it must be concluded that he has not done so. He has not established that he was qualified for the position sought at the time of his termination. In fact, he has admitted that he was not qualified. Testimony from his witnesses, as well as his superiors, which is accepted, indicates that he was not able to perform the job of maintenance accounting clerk, which was given to Mr. Lindsey, prior to or at the time of his layoff, due to his lack of computer skills, in spite of his training.
The Petitioner has provided no evidence that he was laid off under circumstances with which a similarly-situated employee under the age of 40 would not have been terminated. Rather, the evidence shows that the person who had the necessary computer skills and knowledge of operation of the computer program was retained. That retention was not because that person was under the age of
Absent the showing that he was terminated under circumstances for which a person under the age of 40 would not have been terminated, a prima facie case cannot be established. Pouncy v. Prudential Insurance Company, 668 F.2d 795 (5th Cir. 1982).
Thus, under the McDonnell-Douglass test, a prima facie burden has not been met by the Petitioner because he has not been shown to be qualified to
perform the job of maintenance accounting clerk. He admitted that he had deficient computer skills.
If one uses a different analysis, the analysis used in a "classic layoff" or reduction in force situation, employed by courts, then courts have held that the prima facie case requires that the employee show that he was in the protected group, was performing according to legitimate expectations, and was discharged, and that younger employees were treated more favorably. See, Roper v. Peabody Coal Company, 47 F.3d 925 (7th Cir. 1995). It might be found that a prima facie case has been shown in that situation, if that analysis is used, since Mr. Lindsey was retained and the Petitioner was laid off. If that were the case, then the Respondent would be forced to articulate a legitimate, nondiscriminatory reason for the employment action. The burden of production, in other words, would shift to the Respondent.
Regardless of whether the Roper or the McDonnell-Douglass analysis is used, however, the Respondent has articulated a legitimate, nondiscriminatory reason for its action.
Although in some layoff cases it has been found that economic justification was a pretext, there is no doubt that there was economic justification for the layoff here, since it is undisputed by the parties that a budgetary reduction was mandated by the county government. Therefore, to prove pretext, there would have to be proof by the Petitioner that the new position of maintenance accounting clerk either did not require computer skills, or if it did require them, that the Petitioner possessed them.
As shown by the above Findings of Fact, the position did require computer skills. The evidence is unrefuted that there was a need for computer skills in the position and that 80 to 90 percent of the duties of the position involved knowledge of and use of the computer system. Mr. Westbrook and Mr. Barnes established that necessity in their testimony. No evidence was presented by the Petitioner to establish that the computer skills were not necessary, and Mr. Westbrook established that the new position could not have been redesigned to accommodate a lack of computer skills and training.
If computer skills were necessary, the Petitioner should prove that he possessed them or that Mr. Lindsey, who retained the position, did not. The evidence establishing Mr. Lindsey's superior computer skills is unrefuted by the Petitioner. In fact, he agreed that Mr. Lindsey had superior computer knowledge. The Petitioner also admitted that he "didn't know one computer from another." No evidence was presented that the Petitioner had even minimal computer skills necessary to do the new position of maintenance accounting clerk. He admitted as much.
Training Deprivation Issue
If the Petitioner's case is subjected to the McDonnell-Douglass test referenced above, he has not proven a prima facie case. This is so because he has not shown that he is qualified in terms of computer skills for the position in question. If his prima facie case were subjected to the layoff case test referenced in the Roper, supra. decision, as stated above, it might be determined that a prima facie case was established because Mr. Lindsey, younger than the protected class occupied by the Petitioner, was hired instead of the Petitioner.
Even if that were the case, to prove wrongdoing or wrongful motives on the part of the Respondent would require a showing of intentional discrimination by the Respondent and that the articulated purported legitimate motives for the employment action were, in reality, a pretext. In order to prove that the reasons for the employment action were really pretextual requires a showing that the company did not really need computer expertise in the maintenance accounting clerk position. In the absence of that showing, a demonstration should be made that the Petitioner actually possessed at least the minimal computer skills for the new position; that the layoff itself was not necessary and was actually a pretext for the ulterior motive of dismissing older employees in the Petitioner's protected class. If it were not established that computer skills were unnecessary in the new position or that the Petitioner had the necessary minimal computer skills, the Petitioner would have to show that training in computer-related skills was intentionally withheld from him because of his age. He would have to demonstrate that the reason asserted for not placing him in the position in which Lindsey was placed, a lack of computer skills, was really a pretext for what was intentional discrimination through the intentional deprivation of computer training.
Concerning whether the Petitioner proved such an intentional deprivation of training as it relates to a showing of improper motive or a pretext, it is noted that the Petitioner was sent to Pensacola Junior College to take computer training. He never complained to the Respondent but voluntarily withdrew from the course because he felt it was too advanced for him. He has admitted that he had essentially no knowledge of computers and their use before taking the course. Therefore, a training course was certainly warranted. Thereafter, the Petitioner never sought more formal training. He never complained to the Commission about his lack of training, even though he was authorized to do so by the terms of the agreement concerning his 1990 discrimination charge. Indeed, there was no complaint from him about any lack of training until after the layoff occurring in mid-1993. Clearly, formal Fleetmate training was given to personnel of the Respondent before the Petitioner was in a position to need or receive Fleetmate training. He was not in a position in 1988 to have any reason to use the Fleetmate system. All other Fleetmate training was given by Mr. Lindsey. Mr. Hilton Turner learned the Fleetmate system from Mr. Lindsey and learned it in approximately 10 hours of training at approximately age 50. Mr. Barnes, at approximately age 50 or more, learned the Fleetmate system with minimal training help and primarily through self-study.
The Petitioner was trained well enough to do the job he held. He was never disciplined and received no complaints about his performance in the storekeeper position. That position required little computer use or knowledge. There is no evidence that he ever attempted to self-train on the computer system, as Mr. Lindsey did. He received enough training to do the five to ten percent of his storekeeper position that was computer related, however, had he properly assimilated it.
The Petitioner complains that he was locked out of his computer, with the intent to discriminate against him because of his age, to keep him from having access to the computer to do his job. Even after receiving some training at Pensacola Junior College, however, the Petitioner clearly had difficulty in even turning on the machine. He would frequently complain to Mr. Barnes that someone had "messed with his computer and jammed it up" so that Mr. Barnes would have to "unlock it". Mr. Barnes established, however, that the Petitioner was not locked out of his computer but just unable to correctly access his computer because he could not remember how to do so using his password. Mr. Barnes
confirms, indeed, that the Petitioner did complain at times about being locked out of the computer, but that was not the problem. The problem was that he could not remember how to start it.
Indeed, the Petitioner was restricted from some parts of the computer program, as a precaution, because of his propensity for input errors. Consequently, he and other employees, including Mr. Barnes, were locked out of portions of the computer program, to which they had no reason to have access, in order to minimize the risk of ruining entire files or programs through the increased risk for human error. The company had a wish to protect its files from damage or destruction by computer novices, such as the Petitioner. The testimony is clear that this was the case, especially because Mr. Barnes and Mr. Turner, two supervisors themselves, were locked out of parts of the computer program, which they had no need to have access to, as a safety precaution. The Petitioner's remonstrance that he did not have access to parts of the computer program he needed to use in order to do his job was not creditable since he was able to perform his job satisfactorily with no complaints from his employer in the manner in which he did it, even without access to parts of the computer program. Therefore, it has not been shown by the Petitioner that he needed to have access to those portions of the computer program or system in order to do his job and, accordingly, no showing of an intentional, discriminatory effort to lock him out of it.
The Petitioner also contends that he was not furnished with a computer when he should have been, as further evidence of discrimination. He never complained to the Commission, in accordance with the terms of the agreement, concerning his computer training, including the question of when or whether or not he was furnished a computer.
The evidence as to when he was furnished a computer is conflicting. The Petitioner maintains that one was bought for him about mid-1992 and sat idle for six months before it was "hooked up". Mr. Lindsey, however, does not remember clearly when it was purchased but thinks that the Petitioner had a computer as early as 1991, at the time he took the Pensacola Junior College computer course. Mr. Barnes believes that the Petitioner had a computer as early as 1990. In any event, at the very least, the Respondent gave the computer course to the Petitioner and had a computer on his desk ready to operate for a minimum of six months prior to his layoff. Both Mr. Lindsey and Mr. Barnes tried to help him learn to operate the computer prior to his layoff.
Even if the Petitioner had a computer on his desk for three years, he did not have the natural aptitude or the inclination to train himself or to seek out training to become as skillful as Mr. Lindsey. Absent that skill level, he could have been laid off in any event because Mr. Lindsey, even by the Petitioner's admission, clearly had superior computer skills. The Petitioner, by his own admission, had almost none.
In fact, for any delay in furnishing the Petitioner's computer to be probative of any material issue, there must be a showing that prior to the actual layoff, there was prior knowledge of a potential layoff in the wind, and because of that knowledge, there was a plan to keep the Petitioner computer illiterate, because of his age, so that he would be the appropriate person to be laid off. There has been no showing of any prior knowledge of the layoff nor any intent to purposely prevent the Petitioner from having computer training or access to or possession of a computer, in order to discriminate against him because of his age.
The Petitioner also apparently asserts that Mr. Lindsey had an incentive not to accord the Petitioner any training so that he would not be a threat to Mr. Lindsey's position. However, even the Petitioner admits that he was not a good computer student and Mr. Barnes established that he was unwilling and probably unable to learn much about computers. The Petitioner admits that he had at least 15 hours of training and that others, including those over 50 who were trained, learned the Fleetmate system in less time than that. Some, such as Mr. Barnes, learned mostly by self-study. Since the Petitioner, once he received a computer, would have taken some work load off Mr. Lindsey, had he had knowledge of computer operations, it is reasonable to assume that Mr. Lindsey would have wanted the Petitioner to learn more about the computer. This is particularly true since no layoff had been anticipated.
Age-Related Remarks
Concerning the contention that age-related, disparaging remarks were made about the Petitioner and other workers similarly situated in his protected class in the work place, there has been no formal charge in the Petition of an abusive or hostile environment. There has only been a statement that there were "discriminatory comments" made concerning the Petitioner's age. The Petitioner presented evidence of some isolated statements or comments, presumably to show motive or intent for the layoff, as that relates to showing that the articulated reason the Respondent claims for the layoff was, in reality, a pretext.
According to the Petitioner, the only statements he could recall were
(1) "Hey, old man, what are you up to now?" and (2) an isolated question from a supervisor concerning his anticipated retirement. The Petitioner stated that he did not feel threatened or psychologically intimated by these remarks and admits that it was never stated to him, in effect, or directly that he was too old to do his job.
Even if the statement of the Petitioner's witnesses Rollin and Allen are accepted as true, which Mr. Barnes denies, they are isolated comments and can logically be explained as frustration over the failure of the Petitioner to learn his job concerning computers. It is noteworthy that no such statement was ever made to the Petitioner himself and no discipline was ever imposed. The operative words of the phrases in question were not "old bastard" or "old son of a bitch", and those names must be deemed to fall into the category of slang or "shop talk". The operative portion of those phrases really referenced the Petitioner's inability to do his job, especially with regard to computer-related matters.
The Petitioner only complains of age-related remarks coming from Mr. Barnes, his supervisor. He does not mention any remarks made by Mr. Lindsey, but Mr. Lindsey himself admits to calling the Petitioner "an old fart" and that the Petitioner also insulted Mr. Lindsey on occasion. Mr. Lindsey characterized this as "picking" and admits to calling the Petitioner old and senile, even saying so to Mr. Barnes, the supervisor. That was merely a statement of Mr. Lindsey's frustration at having to constantly help the Petitioner do his job, including looking up parts and other computer-related matters. It had nothing to do with any opinion that the Petitioner should be terminated due to his age. Mr. Lindsey was not his supervisor and did not make the subject employment decision. Even the Petitioner's witness, Mr. Rollin, states that he sometimes called the Petitioner "old" as a joke between friends.
The only statements that might possibly be linked to the layoff of the Petitioner are those of Mr. Allen and Mr. Rollin, attributable to Mr. Barnes,
the supervisor. It is noted, however, that Mr. Allen is a disgruntled former employee, who had filed a race discrimination complaint, which was later settled. In any event, Mr. Allen stated that any age-related remark he ever heard would have been five years before. Such remarks must be disregarded as having no reasonably-shown connection to the 1993 actions and as being too remote in time. This leaves Mr. Rollin's statement attributable to Mr. Barnes, as follows: "The old son of a bitch, I should fire him; he doesn't know how to turn on a computer". Even taken at its worst, this comment shows that Mr.
Barnes may have wanted to fire the Petitioner; however, it was not because he was old. It was because, after all of the training and attention he had received in an effort to train him in how to use the computer, the Petitioner still did not remember how to turn on the machine. The age reference is part of a profane expression made in the context of Mr. Barnes' irritation with the Petitioner's ineptitude, not in the vein that he should be fired because of his age. The sentiment expressed by Mr. Barnes was in a fit of irritation because of his lack of computer knowledge, not his age.
A person cannot excuse lack of job ability or performance because of age, if the requirement is a legitimate job requirement. The ability to turn on the computer is not an unreasonable expectation for a person who has received company-paid instruction at Pensacola Junior College or who could have received it in complete form, had he chosen to remain in the course or seek out another more appropriate course. Additionally, he had at least 15 hours of on-the-job training from Mr. Lindsey and also received help from Mr. Barnes in learning how to turn on the computer.
The testimony and demeanor of the Petitioner and the isolated number of comments, approximately three or so over the course of his employment since 1985, cannot lead to a conclusion of any pervasive attitude of "ageism" in the work place. There is no persuasive, statistical evidence of a pattern of age- related discrimination and no direct causal connection between such isolated comments and any motive for the layoff. It has simply not been shown that the comments made on isolated occasions over this many years show evidence of any intent to lay off the Petitioner, in whole or in part, because of his age.
Retaliation
The Petitioner maintains that he was retaliated against by being laid off because of filing the earlier discrimination complaint, which was settled in 1990. However, the mere filing of a discrimination complaint cannot protect a person from any future company action. In order to prove a prima facie case of retaliation, the Petitioner must show that he was engaged in a protected activity, the filing of the 1990 discrimination claim, which is admitted. He must also show an adverse employment action taken against him, that is, that he was laid off. This was done, as well; however, there must also be shown a causal connection between the filing of the earlier complaint and the layoff, which in this case, was not proven.
Normally, a retaliation claim involves action taken fairly quickly after the filing of a previous discrimination charge. In this situation, however, the earlier claim was made in 1990 and the layoff, concerning which retaliation is claimed, occurred in October of 1993, over three and one-half years after the settlement of the 1990 complaint. There has simply been no showing of a causal connection between the two, and the Respondent has articulated a legitimate, common, nondiscriminatory business reason for its employment action, which reasons are unrefuted.
The Petitioner was simply not qualified for the remaining job position after the layoff procedure because of his lack of computer skills and training. This is the case even though, pursuant to the agreement, the Respondent had authorized and paid for the computer course that the Petitioner failed to complete. Even so, it went beyond that and voluntarily provided him on-the-job computer training by several of its employees. Thus, there has been no showing that the layoff was retaliation for the three and one-half year past discrimination complaint nor that the Respondent failed to provide adequate training opportunities on the computer because of any ulterior motive it had to "set Green up" for termination or layoff for lack of adequate job qualifications as an indirect method of retaliation.
It is noted that the Respondent cited a number of cases where retaliation claims were rejected because the purported retaliatory event, which was the subject of the claim, followed a substantial period of time after the filing of the original discrimination complaint concerning which retaliation was claimed. See, Brume Saadt v. Standard Products Company, 744 F.Supp. 160 (M.D. Ohio 1989), aff'd. 911 F.2d 731 (6th Cir. 1990); Jennings v. Uni-Royal, Inc., 50 FEP Cases M.D. Indiana (1989); Maldanato v. Metra, 743 F.Supp. 563 (N.D. Illinois 1990); Meredith v. Beach Aircraft, 57 FEP Cases 962 (1992). In these cases, the claims of retaliation were rejected, based upon the elapse of too much time between the original complaint of discrimination and the event concerning which it was claimed retaliation arose. In none of these cases did the time exceed 20 months, and many involved three to four months' elapsed time.
In summary, there has been no showing of a causal connection between the original 1990 discrimination claim and the employment action at issue. The Respondent articulated a legitimate, nondiscriminatory business reason for that action, to wit; that Mr. Lindsey was more qualified for the remaining position and that the Petitioner did not possess the computer-skill qualifications necessary for that position.
Lack of Pretext
The evidence clearly shows that computer skills were needed for the maintenance accounting clerk position and that Mr. Lindsey clearly possessed superior computer skills. The Petitioner did not possess them. Therefore, the Respondent retained Mr. Lindsey in that position and, there being no such position for which the Petitioner could qualify and since his earlier one had been eliminated, he was laid off. He was laid off because he was not qualified for the computer-dependent position that was left. Thus the Respondent has articulated and, indeed, proven a legitimate, nondiscriminatory business reason for the employment action. The Petitioner has not shown that that was a pretext for what amounted to discriminatory intent to lay him off on account of his age.
In fact, if the company had merely wanted to get the Petitioner off its payroll because of his age, it is reasonable to assume that they would have let him go. The company had no obligation to retain him under these circumstances. The fact remains that he was retained by the company as a bus driver, albeit at a lower starting salary. Allowing him to remain as a bus driver required the company's provision of extensive training in bus operation, since he had no prior experience. Allowing him to remain as a bus driver lends credibility to the testimony of witnesses Westbrook and Barnes, to the effect that his lack of computer skills was the reason for his layoff and not his age.
In summary, the Petitioner has failed to prove a prima facie case. Even assuming, arguendo, that a prima facie case was proven, as, for instance,
through use of the Roper test concerning employment "layoff cases", the Respondent has articulated a legitimate, nondiscriminatory business reason for its employment action. The burden thereafter fell on the Petitioner to present evidence that the nondiscriminatory reason was really pretextual. There was no showing of pretext. There was no showing that the need for computer skills in the position remaining after the layoff occurred was pretextual. There was no showing that the Petitioner had the computer skills to perform the remaining position. There was no showing that the Respondent had any pre-knowledge of a pending layoff in 1990 through 1992, or even in the early 1993 time period.
Such advanced knowledge would be an essential ingredient in proving that any action, or inaction, regarding the Petitioner's training was taken with the intent to discriminate against him on account of his age. Absent the knowledge of a pending layoff, the company would have had no reason to have projected any need to get rid of the Petitioner. In fact, Mr. Barnes was pleased with the Petitioner's work and would liked to have kept him as a night foreman. There has been no showing that any actions by the company during the 1990-1993 time period, relative to computer training, were age motivated and designed to "set the Petitioner up" for an eventual layoff.
The courts have stated that there is no automatic presumption applying in favor of a worker, when that worker is laid off or terminated and replaced by one of a younger age. Laugesen v. Ana Condaco, 510 F.2d 307, 313 (6th Cir. 1975). The ADEA clearly does not operate as a de facto seniority system, granting older employees job preference rights. The Congress did not intend that any employer, who discharges a person in a protected age group, should automatically face a discrimination charge. See, Sahadi v. Reynolds Chemical Company, 636 F.2d 1116, 1117 (6th Cir. 1980). An employer is not obligated to offer a petitioner in a protected age class, whose position is abolished, an opportunity to transfer to another position he could perform, which is occupied by a younger employee. Here, in fact, the Respondent's case is stronger in that the Petitioner was not qualified to perform the job which was occupied by the younger employee, and the younger employee was so qualified. Accordingly, it is concluded that the Petition should be dismissed.
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
RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition of the Petitioner, Oscar C. Green.
DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Florida.
P. MICHAEL RUFF, 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 23rd day of February, 1996.
APPENDIX TO RECOMMENDED ORDER CASE NO. 95-1361
Petitioner's Proposed Findings of Fact
The Petitioner failed to number his findings of fact. Accordingly, they will be addressed by complete paragraphs, which are assigned a number in this Appendix, numbered in the order in which the paragraphs appear in the findings of fact portion of the Petitioner's "Proposed Order."
1-3. Accepted.
4-6. Rejected, as contrary to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Even if parts of this paragraph are accurate, they are not themselves materially dispositive.
Accepted, but not itself materially dispositive.
Rejected, as contrary, in part, to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter.
10-16. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter after the Hearing Officer's weighing of the candor and credibility of material witnesses.
Respondent's Proposed Findings of Fact 1-24. Accepted.
COPIES FURNISHED:
Donna Gardner, Esquire
209 South Baylen Street Pensacola, FL 32501
Karl Boyles, Esquire
127 Palafox Place Pensacola, FL 32501
Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240
325 John Knox Road Tallahassee, FL 32303-4149
Dana C. Baird, General Counsel Human Relations Commission Building F, Suite 240
325 John Knox Road Tallahassee, FL 32303-4149
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.
| Issue Date | Proceedings |
|---|---|
| Jul. 03, 1997 | Final Order Dismissing Petition for Relief from and Unlawful Employment Practice filed. |
| Feb. 23, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 08/17/95. |
| Dec. 06, 1995 | (Petitioner) Proposed Order filed. |
| Nov. 21, 1995 | Respondent`s ATC/Vancom Management, Inc., Proposed Findings of Fact, Proposed Conclusions of Law, Proposed Recommended Order And Argument filed. |
| Oct. 24, 1995 | Order sent out. (Proposed RO's due 11/21/95) |
| Oct. 24, 1995 | (Joint) Stipulated Motion for Extension of Time; Order (for HEARING OFFICER signature); Cover Letter filed. |
| Sep. 26, 1995 | Final Hearing (Transcript) filed. |
| Aug. 17, 1995 | CASE STATUS: Hearing Held. |
| Jul. 18, 1995 | Respondent`s First Request for Production of Documents Propounded to Petitioner w/cover letter filed. |
| Jul. 10, 1995 | Petitioner`s First Request for Production of Documents Propounded to Respondent filed. |
| Jul. 03, 1995 | Confirmation letter to Court Reporter from HEARING OFFICER`s secretary re: hearing date sent out. (Court Reporter: David Mynhier) |
| Jun. 13, 1995 | Notice of Hearing sent out. (hearing set for Aug. 17-18, 1995; 10:00am; Pensacola) |
| May 15, 1995 | (Petitioner) Amended Notice of Taking Depositions filed. |
| May 12, 1995 | (Respondent) Notice of Taking Depositions w/cover letter filed. |
| May 04, 1995 | (Petitioner) Notice of Taking Depositions; Answer to Respondent`s Affirmative Defenses filed. |
| Apr. 19, 1995 | Joint Stipulation for Discovery w/cover letter filed. |
| Apr. 10, 1995 | Joint Response to Initial Order filed. |
| Apr. 06, 1995 | (Petitioner) Notice of Appearance; Letter to Gail Greene from Ginny Hunt Re: Notice of Appearance and Notice of Respondent of Filing of Petition for Relief (dated 3/16/95) filed. |
| Apr. 05, 1995 | (Respondent) Answer filed. |
| Mar. 28, 1995 | Initial Order issued. |
| Mar. 20, 1995 | Transmittal of Petition; Charge of Discrimination; Notice of Determination: No Cause; Determination: No Cause; Petition for Relief; Notice to Respondent of Filing of Petition for Relief from an Unlawful Employment Practice filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 25, 1997 | Agency Final Order | |
| Feb. 23, 1996 | Recommended Order | Petitioner did not show layoff purportedly for lack of computer skills for remaining job was age discrimination through lack of computer training or retaliation his earlier claim |
