STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THORNTON ALAN BLINE, )

)

Petitioner, )

)

vs. ) Case No. 00-1216

) AUTOMAX AND PEARSON GROUP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 21, 2000, in Ocala, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thornton Alan Bline, pro se

5720 Northeast 4th Street Ocala, Florida 34470

For Respondent: Bernard B. Holian, General Manager

Automax and Pearson Group 1918 Southwest 17th Street Ocala, Florida 34470

STATEMENT OF THE ISSUE

The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 7, 1998.

PRELIMINARY STATEMENT

This matter began on January 7, 1998, when Petitioner, Thornton Alan Bline, filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that Respondent, Automax and Pearson Group, had violated Chapter 760, Florida Statutes, by replacing him as a floor manager with a "38 year young" person. When the agency failed to conclude its investigation in a timely manner, on January 4, 2000, or some two years later, Petitioner elected to file a petition for relief and to proceed with an administrative hearing. Although a petition for relief was apparently never filed, the original charge was referred by the agency to the Division of Administrative Hearings on March 22, 2000, with a request that an Administrative Law Judge conduct a formal hearing.

By Notice of Hearing dated April 12, 1999, a final hearing was scheduled on July 21, 2000, in Ocala, Florida. On July 19, 2000, the case was transferred from Administrative Law Judge William R. Pfeiffer to the undersigned.

At the final hearing, Petitioner testified on his own behalf. Respondent was represented by its general manager, Bernard B. Holian, who testified on its behalf. Also, it offered Respondent's Exhibits 1-4, which were received in evidence.

There is no transcript of the hearing. The parties waived their right to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this discrimination case, which has an extremely limited factual record and is replete with hearsay, Petitioner, Thornton Alan Bline, who was 52 years of age in October 1997, contends that Respondent, Automax and Pearson Group, unlawfully terminated him on account of his age. Respondent denies the allegation and contends that Petitioner was terminated because of poor performance. A preliminary decision on the merits of the claim was never reached by the Florida Commission on Human Relations (Commission).

2. Respondent is a car dealer that began business in the summer of 1997. Although there is no specific evidence on the issue of whether Respondent is an employer within the meaning of the law, monthly compensation reports received in evidence as Respondent's Exhibits 1 and 2 reflect that during August and September 1997, Respondent employed five team leaders, including Petitioner. Thus, the total number of employees would have been greater. Even so, the record does not show the precise number of persons employed by Respondent, and the undersigned is unable to determine if Respondent is an employer within the meaning of the law and thus subject to the Commission's jurisdiction.

3. Petitioner was hired by Respondent on May 30, 1997, as a floor manager. That position required Petitioner to manage a

   small team of salespersons who assisted customers in purchasing automobiles. The team's performance was measured by the number of automobiles (units) sold each month.

4. In August and September 1997, Petitioner's team had the lowest sales volume of any team. More specifically, in August 1997, out of 80 units sold by all teams, Petitioner's team sold only 10 units; in September 1997, out of 97 units sold by all teams, Petitioner's team sold only 4. At hearing, Petitioner agreed that these numbers were accurate and that his sales "were down" during that period of time.

5. On October 1, 1997, Petitioner was summoned to the office of the general manager, "Bud" Holian, who advised him that he was being terminated due to low sales performance. At that brief meeting, Holian explained that he "felt bad" about the decision, especially "with all [Petitioner had] done," but that he had to let Petitioner go.

6. Petitioner contended that during the conversation, Holian had also stated that the company needed "someone younger and fresher to liven up the team." He further contended that another floor manager named "Rick" overheard the conversation and could confirm these remarks. However, Rick did not appear and testify. Neither was there was any other corroborating or independent evidence to confirm this allegation. Holian, who is older than Petitioner, denied making the comment. He also established that after Petitioner was terminated, he hired two

   other salesmen who were older than Petitioner. Finally, the record does not show who replaced Petitioner and the age of that individual.

7. In light of the foregoing, there is insufficient evidence to find that Respondent's employment decision was grounded on discriminatory animus in any respect, or that a discriminatory reason motivated the employer in its actions. Rather, the more persuasive evidence supports a finding that Petitioner was terminated solely because of poor sales performance.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57, Florida Statutes (1999).

9. In his Charge of Discrimination, Petitioner has alleged that he was unlawfully terminated by his employer on account of his age. If this charge is true, it would arguably constitute a violation of Section 760.10(1)(a), Florida Statutes (1997), which provides in relevant part as follows:

   1. It is an unlawful employment practice for an employer:

      
      

      (a) To discharge . . . any individual . . . because of such individual's . . . age.

      
      

10. As a threshold jurisdictional consideration, Petitioner is obligated to show through proof (sworn testimony or exhibits received in evidence), or by stipulation with the opposing party,

    that Respondent employed "15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year"." Section 760.02(7), Florida Statutes (1997). Failing this, the Commission lacks jurisdiction to hear the dispute. Because no such showing was made, on this basis alone the claim must be dismissed. Despite this jurisdictional deficiency, however, the merits of the claim will be addressed below.

11. In order to make out a prima facie case of age discrimination under Section 760.10(1)(a), Florida Statutes (1997), Petitioner must show that he is a member of a protected class; that he was fully qualified for the job which he held; that he was the subject of an adverse employment decision; and that he was replaced by another person of a different age, with equal or lesser qualifications. See, e.g., Jones v. School Bd. of Volusia County, 21 F.A.L.R. 2366, 2367 (FCHR, 1999). Assuming this evidentiary requirement is satisfied, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment decision. If such a showing is made, the claimant must then show that the employer's actions were merely a pretext for discrimination.

12. The evidence shows that Petitioner failed to meet his burden of proving a prima facie case of age discrimination. This is because the record fails to disclose whether Petitioner was

    replaced by a person of a different age. Therefore, the charge must fail.

13. Assuming for the sake of argument that a prima facie case was presented, Respondent has articulated a legitimate, nondiscriminatory reason for its employment decision. That is to say, Petitioner was terminated because of his poor sales performance. There was no evidence that this action was a pretext for discrimination or that Respondent was motivated by a discriminatory reason when it terminated Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Charge of Discrimination.

DONE AND ENTERED this 9th day of August, 2000, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2000.

COPIES FURNISHED:

Thornton Alan Bline

5720 Northeast 4th Street Ocala, Florida 34470

Bernard B. Holian, General Manager Automax and Pearson Group

1918 Southwest 17th Street Ocala, Florida 34470

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the agency that will render a final order.

Docket for Case No: 00-001216

Orders for Case No: 00-001216