STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. JONES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1362

) NATIONAL HEALTHCARE CENTER ) OF PANAMA CITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing in the above-styled case on August 29, 1995, in Panama City, Florida.

APPEARANCES

For Petitioner: Cecile M. Scoon, Esquire

36 Oak Avenue

Panama City, Florida 32401

For Respondent: Jonathan S. Grout, Esquire

Goldsmith & Grout, P.A.

307 West Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner was subjected to an unlawful employment practice, namely discrimination on the basis of age, with regard to Respondent's hiring of another applicant for the position sought by Petitioner. A secondary issue is whether Petitioner was constructively terminated from employment as a result of age discrimination.

PRELIMINARY STATEMENT

On July 18, 1994, Petitioner, an employee of Respondent, filed a charge of discrimination against Respondent. Petitioner, who is more than 40 years of age, alleged that he was treated disparately by Respondent with regard to his application for promotion on the basis of age.

On February 2, 1995, the Florida Commission on Human Relations entered a Notice of Determination: No Cause.

On March 8, 1995, Petitioner filed a Petition for Relief with the Florida Commission on Human Relations, alleging Respondent's commission of an unlawful employment practice by hiring a younger applicant with less experience for the supervisor position temporarily held by Petitioner. Further, Petitioner alleged

that he had been constructively terminated from employment because he was required to train the new employee, a situation that Petitioner found impossible to accept. These allegations, with respect to conditions and privileges of Petitioner's employment, are alleged by Petitioner to have occurred without a legal basis in violation of Sections 760.01-760.10, Florida Statutes.

Subsequently, the matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented the testimony of nine witnesses, including himself, and 19 exhibits of which two exhibits were deemed inadmissible. Respondent presented the testimony of five witnesses and 11 exhibits.

A transcript of the final hearing was filed with the Division of Administrative Hearings on September 18, 1995. The parties requested and were granted leave to file posthearing submissions more than 10 days after the filing of the transcript, and in accordance with Rule 60Q-2.031, Florida Administrative Code, waived provisions of Rule 28-5.402, Florida Administrative Code.

Proposed findings of fact filed by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, Robert Jones, was born October 27, 1941. He was 52 years of age in March of 1994.

   
   

2. Respondent is National Healthcare Center, a retirement home for elderly persons.

   
   

3. Prior to March 28, 1994, the maintenance department at Respondent's facility consisted of one supervisory employee and one part-time employee, Jones.

   
   

4. On March 28, 1994, Jones' immediate supervisor within the maintenance department resigned, effective April 8, 1994.

   
   

5. In addition to his employment three days a week in the maintenance department, Jones also worked two days a week on the payroll of Respondent's facility in the housekeeping department.

   
   

6. The administrator for Respondent's facility advertised the vacant maintenance supervisor position in the local newspaper. Approximately 35 applicants, including Petitioner, applied for the position.

   
   

7. The administrator interviewed Petitioner and eight other applicants for the position, including the applicant who was eventually hired for the position.

   
   

8. James French, the applicant hired for the position of maintenance supervisor, was serving as the head of maintenance at a 17 story, 163 unit condominium facility at the time of the interview. French supervised maintenance assistants at the condominium facility and was responsible for a wide array of maintenance services ranging from electrical, carpentry, plumbing, heating and air conditioning repairs to tests and maintenance of an emergency backup generator.

9. The administrator, Steven Rykiel, was impressed by French and his eight years of maintenance experience. Rykiel was no novice in the hiring of personnel to run departments in facilities like Respondent's, having supervised the opening of a similar facility in Niceville, Florida where he hired department heads. Rykiel particularly liked French's expressed approach to performing maintenance: Fixing or repairing problems before the problems were pointed out by the boss.

   
   

10. A comparison of French's candidacy for the maintenance supervisor position with Petitioner's reveals that French had recent experience in the supervision of maintenance personnel. While Petitioner had prior supervisory experience in other employment, he had not supervised employees since 1989.

    
    

11. Rykiel followed his normal procedure in selecting the person to head the maintenance department at Respondent's facility. He reviewed the applications, interviewed the applicants, and checked the references of the one applicant who impressed him, James French.

    
    

12. Ages of the respective applicants were not considered by Rykiel in his hiring decision. He was unaware of the age of either French or Petitioner at the time of their respective interviews. As previously noted, Petitioner was 52 years of age. French was 36 years of age.

    
    

13. At the final hearing, Petitioner recanted his notarized statement in the Charge Of Discrimination dated July 18, 1994, which, in pertinent part, reads as follows:

    
    

    I trained the new supervisor and familiarized him with the inner workings of the nursing home until my resignation became effective

    on May 6, 1994.

    
    

    As explained by Petitioner at the final hearing, his sworn statement is technically untrue but he felt that he would be required to train the new supervisor and, consequently, decided to resign his position.

    
    

14. Respondent's employee manual provides a procedure for employees to seek transfers and promotions. The manual does not set forth a directive requiring existing employees to be promoted over hiring a new employee. Specifically, the manual provides "[w]hen possible, a vacancy could be filled by a qualified employee of the health care center."

    
    

15. Respondent does not have any policy that directs employment decisions be based on age of applicants.

    
    

16. Rykiel did not hired French over Petitioner because of Petitioner's

    age.

    
    

17. Petitioner was not told that he would have to train French.

    Consequently, there is no evidence to establish that such a directive placed Petitioner in intolerable working conditions. Although Petitioner has never failed, in the course of employment throughout his life, to obtain promotions sought by him, failure to obtain promotion in this instance does not constitute an intolerable working condition.

18. Petitioner did not request a meeting with either Rykiel or any other higher superior in Respondent's organization, an opportunity provided by Respondent's procedures manual, prior to Petitioner's submittal of his voluntary resignation.

    
    

19. Petitioner's resignation was submitted prior to French commencing employment with Respondent. Although Petitioner continued in Respondent's employment for a period of two days after French began work, Petitioner had little or no interaction with him.

    
    

20. The hiring of French for the position of maintenance supervisor at Respondent's facility, as articulated by Respondent's personnel at the final hearing, was accomplished on the basis of legitimate, non-discriminatory reasons. French had more recent supervisory experience, experience in maintenance, and presented himself more dynamically in the course of the interview process.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

22. The adverse effectuation of an employee's compensation, conditions and privileges of employment on the basis of age is an unlawful employment practice. Section 760.10(1)(a), Florida Statutes.

    
    

23. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for the treatment accorded Petitioner. If Respondent is successful and provides such reason, the burden shifts again to Petitioner to show that the proffered reason is pretextual. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

    
    

24. To establish a prima facie case, Petitioner must show he is a member of a protected class; that he was the subject of disparate treatment; and that he was replaced in the position from which he was separated by a member from a non-protected class. Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1983), cert. denied, 464 U.S. 1018 (1984), Rehr'g denied, 465 U.S. 0154 (1984).

    
    

25. Petitioner is a member of a protected class and was denied promotion in favor of a member of a non-protected class. Petitioner has not, however, presented direct evidence of age discrimination on the part of Respondent in connection with Petitioner's failure to obtain promotion. Further, Respondent's explanation for hiring another candidate instead of promoting Petitioner has not been shown to be pretextual.

    
    

26. Additionally, Petitioner has failed to show that Respondent acted to constructively terminate Petitioner's employment on any basis, including a desire to discriminate on the basis of Petitioner's age. Although Petitioner's testimony established that he "felt" he would be required to train French and resigned in anticipation of such a directive, Petitioner's resignation must be viewed, on the evidence presented, as a voluntary resignation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the Petition For Relief.

DONE and ENTERED in Tallahassee, Florida, this 8th day of November, 1995.

DON W. DAVIS, 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 8th day of November, 1995.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.

Petitioner's Proposed Findings 1.-2. Accepted.

1. Rejected, not materially dispositive.

2. Rejected, subordinate to HO findings. 5.-6. Adopted by reference.

1. Rejected, not materially dispositive.

2. Rejected, relevance.

3. Accepted.

10.-12. Rejected, not materially dispositive.

13. Rejected, Jones continued as the only maintenance person. No evidence suggests that he was ever permanently given the supervisor position.

14.-15. Accepted.

16.-25. Rejected, subordinate.

26. Accepted.

27.-34. Rejected, subordinate and not materially dispositive.

35. Rejected, relevance.

36.-38. Rejected, not materially dispositive. 39.-44. Rejected, subordinate to HO findings. 45.-53. Rejected, not materially dispositive.

54. Rejected, not supported by the weight of the evidence. 55.-57. Rejected, subordinate.

1. Accepted.

2. Rejected, mischaracterization of testimony, argumentative. 60.-63. Rejected, not materially dispositive.

64.-65. Rejected, relevance, weight of the evidence, mischaracterization of testimony. The budget increase reflected increased tasks being performed in house that were previously contracted.

66.-68. Rejected, not materially dispositive.

69. Rejected, weight of the evidence.

Respondent's Proposed Findings

1.-2. Accepted.

3. Rejected, relevance.

4.-19. Accepted, though not verbatim.

COPIES FURNISHED:

Jonathan S. Grout, Esq. Goldsmith & Grout, P.A.

307 W. Park Ave. Tallahassee, FL 32301

Cecile M. Scoon, Esq.

36 Oak Ave.

Panama City, FL 32401

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32399-1750

Dana Baird, Esquire Commission on Human Relations

325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32399-1750

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: 95-001362

Orders for Case No: 95-001362