ALTON M. SAUNDERS,
vs.
Respondent.
) Case No. 01-0872
Pursuant to notice, a formal hearing was conducted in this case on June 6 and 7, 2001, in Orlando, Florida, before Jeff B. Clark, an Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Alton M. Saunders, pro se
For Respondent: Lisa H. Cassilly, Esquire
Ashley B. Davis, Esquire Alston & Bird, LLP
The issue in this case is whether Respondent discriminated against Petitioner on the basis of his age, as stated in the
Florida Statutes.
Petitioner, Alton Saunders, filed a Charge of Discrimination with the Florida Commission on Human Relations ("Commission") on May 10, 2000. The Commission did not make a determination regarding Petitioner's charge of discrimination within 180 days as required by Section 760.11(3), Florida Statutes. On December 27, 2000, Petitioner filed a Petition for Relief and thereby requested an administrative hearing. On March 2, 2001, the Commission referred the matter to Division Of Administrative Hearings to conduct an administrative hearing.
On March 22, 2001, a final hearing was set for May 9-11, 2001, in Orlando, Florida. The final hearing was reset for June 6-8, 2001.
On March 27, 2001, Respondent filed a Motion to Dismiss alleging that Petitioner "failed to timely request an administrative hearing with the Florida Commission on Human Relations as required by Section 760.11(6), Florida Statutes." On May 17, 2001, an Order Reserving Ruling on Respondent's Motion to Dismiss was entered, reserving ruling until the matter was reconsidered after the close of evidence at the final hearing.
At the onset of the final hearing, Petitioner requested a continuance, which was denied. In support of his request for continuance, Petitioner presented a letter from Robert Wheelock, an Orlando attorney, which was made a part of the record as Petitioner's Exhibit A, but not received into evidence.
Petitioner presented James "Jan" Saunders, Hugh Paton, Brett Saunders, Doris Dixon, Debra Sweeney, and himself as witnesses. Petitioner offered two exhibits, 1 and 2, which were received into evidence.
Respondent presented Debra Sweeney and two additional witnesses, Richmond Taylor and Karl D. Fillauer, by deposition. Respondent offered 13 exhibits; 1-8 and 14-17 were received into evidence. Respondent's exhibit 11 was not admitted into evidence.
The Transcript of proceedings was filed on July 23, 2001.
Respondent filed a Proposed Recommended Order on August 20, 2001. Petitioner did not file a proposed recommended order.
Petitioner was born on August 16, 1922, is 79 years old, and is a member of a protected class. Respondent, Hanger Prosthetics and Orthotics, Inc. ("Hanger"), employed Petitioner at the time of the alleged discrimination.
Hanger is engaged in the manufacture, service, and sale of prosthetics and orthotic devices around the country, including in Central Florida.
Petitioner and his family have also been engaged in the prosthetics and orthotics industry throughout Central Florida for many years, operating under a variety of different business names.
From approximately 1985 through 1997, Petitioner was employed as a general office employee by Amputee and Brace Center, a prosthetics and orthotics company owned by Petitioner's sons, Jerome and Jan Saunders.
In 1997, Amputee and Brace Center was acquired by NovaCare, a competitor in the prosthetics and orthotics industry. As part of the sale, members of the Saunders family, including Petitioner, became employees of NovaCare.
Shortly after the acquisition of Amputee and Brace Center by NovaCare, several members of the Saunders family left NovaCare's employ to work for competing prosthetics and orthotics companies. For example, Scott Saunders, Petitioner's grandson, left NovaCare's employ and opened a competing company, ABC Prosthetics and Orthotics, Inc. across the street from NovaCare's facility on Gore Street in Orlando.
In July 1999, NovaCare was acquired by Hanger, previously another competitor of NovaCare. Following the merger
of NovaCare and Hanger, Petitioner became an employee of Hanger and remained at the facility located on Gore Street in Orlando.
As a result of the merger, numerous personnel changes occurred at the Gore Street facility. For example, Debra Sweeney, a longtime Hanger employee, was transferred to the Gore Street facility as the Clinical Operations Director. In December 1999, the title of Clinical Operations Director was changed to Area Practice Manager. Ms. Sweeney was the individual ultimately responsible for the Gore Street facility where Petitioner was then employed.
On March 8, 2000, a misdirected envelope and its contents arrived with the rest of the mail at the Gore Street facility. The envelope was addressed to Dr. Steven Goll, a significant source of patient referrals for Hanger. The return address on the envelope was the return address of ABC Prosthetics and Orthotics, Inc., the company owned by Petitioner's grandson, Scott Saunders, and Hanger's biggest competitor in Central Florida.
The envelope was routinely opened by a member of Hanger's office staff and then delivered, along with its contents, to Debra Sweeney.
The envelope addressed to Dr. Steven Goll contained a solicitation letter bearing Petitioner's signature seeking business referrals on behalf of a new company, Anatomically
Correct Cosmetic Restorations ("Anatomically Correct"). The envelope also contained Petitioner's business card and a trifold marketing piece which explained the types of products and services offered by Anatomically Correct. According to the trifold, Anatomically Correct offered prosthetic and orthotics services and devices which were identical to significant services and devices being offered by Hanger.
Upon receiving the marketing materials, Debbie Sweeney immediately recognized the return address on the envelope and trifold marketing piece as the return address for Hanger's competitor, ABC Prosthetics and Orthotics, Inc.
ABC Prosthetics and Orthotics, Inc., Hanger's competitor, had given Petitioner permission to use the business address of ABC Prosthetics and Orthotics, Inc., as well as ABC Prosthetics and Orthotics, Inc.'s envelopes in distributing the Anatomically Correct marketing materials.
Petitioner's granddaughter-in-law, the wife of the president of ABC Prosthetics and Orthotics, Inc. designed the marketing materials for Anatomically Correct.
Upon examining the contents of the envelope,
Ms. Sweeney suspected that Petitioner was engaged in improper competition with their employer, Hanger.
On March 9, 2000, a meeting was held among
Ms. Sweeney, Petitioner, and Rose DeLucia, the branch manager of the Gore Street facility, during which time Ms. Sweeney presented Petitioner with an opportunity to explain the contents of the envelope that had arrived at Hanger's Gore Street facility the previous day.
During the March 9, 2000, meeting, Petitioner admitted that he had developed the marketing materials, signed them, and distributed them. Additionally, Petitioner admitted that he had mailed the solicitation materials out to physicians practicing throughout the Orlando area who referred patients to Hanger for the purpose of seeking patient referrals from them for his new business.
Petitioner had not solicited business from Hanger's referring physicians during the time that he was actively working for Hanger, i.e., 8:00 a.m.-5:00 p.m. Petitioner acknowledged that he had not advised Hanger that he intended to start Anatomically Correct and engage in business.
Petitioner's conduct was a violation of Hanger policy as well as the policy of Petitioner's former employer, NovaCare, which merged with Hanger.
As a result of the discussion and Petitioner's acknowledgment of production and distribution of the solicitation materials, Ms. Sweeney advised Petitioner that his
employment was terminated for conduct in conflict with his obligations to Hanger, specifically competing with Hanger while employed by Hanger.
Petitioner's employment was terminated for his improper competition with his employer, Hanger, and was unrelated to Petitioner's age.
In his March 10, 2000, application for unemployment compensation benefits with the State of Florida Department of Labor, Petitioner indicated that he had been informed that he was being terminated because his "outside work is in conflict with their type of work."
In a July 1999, conversation involving overstaffing at the Gore Street facility, Wallace Faraday, a Hanger executive, suggested, "Isn't it time for Al [Respondent] to resign, maybe one of his sons will hire him," or words to that effect.
On April 27, 2000, Petitioner signed and dated a Charge of Discrimination. The Charge of Discrimination was filed with the Commission on May 10, 2000.
Section 760.11(3), Florida Statutes, requires that the Commission determine whether there was reasonable cause for the Charge of Discrimination within 180 days of the date Petitioner filed his Charge of Discrimination. The last day the Commission could have issued its determination of reasonable cause was November 6, 2000.
The Commission failed to issue an order determining reasonable cause. When the Commission failed to determine reasonable cause, Petitioner had 35 days from November 6, 2000, or no later than December 11, 2000, to request an administrative hearing in accordance with Sections 760.11(4), (6), (7), and (8), Florida Statutes. Petitioner executed an Election of Rights form indicating his desire to withdraw his Charge of Discrimination and file a Petition for Relief to proceed with an administrative hearing on December 27, 2000.
Petitioner did not file his request for administrative hearing within 35 days of November 6, 2000. Petitioner's claim is barred. Section 760.11(6), Florida Statutes, expressly provides, in pertinent part: "An administrative hearing pursuant to paragraph 4(b) must be requested no later than
35 days after the date of determination by the commission."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
On March 27, 2001, Respondent filed a Motion to Dismiss. The motion argues that the request for administrative hearing was statutorily barred because it was untimely filed. The undersigned reserved ruling on the motion for disposition in this Recommended Order.
Section 760.11(3), Florida Statutes, states, in pertinent part, that within 180 days of the filing of the complaint, the Commission shall determine if there is reasonable cause to believe that discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992.
Section 760.11(8), Florida Statutes, advises, in pertinent part, that when the Commission fails to determine whether there is reasonable cause within 180 days, the Petitioner "may proceed under subsection(4), as if the Commission determined that there was reasonable cause."
Section 760.11(4), Florida Statutes, directs that in the event the Commission determines that there is reasonable cause, the Petitioner may either (a) bring a civil action in any court of competent jurisdiction, or (b) request an administrative hearing. The statute cautions Petitioner that either choice is "the exclusive procedure available."
Section 760.11(6), Florida Statutes, directs, in pertinent part, that Petitioner may request an administrative hearing but any such request must be made within 35 days of the date of determination of reasonable cause.
Respondent's Motion to Dismiss is granted. Petitioner failed to timely file his Petition for Relief containing his request for an administrative hearing. Section 760.11(6), Florida Statutes, in relevant part, requires Petitioner to file
his request for hearing within 35 days of the date the Commission issues its determination of reasonable cause. If the Commission violates the statutory mandate in Section 760.11(3), Florida Statutes, by failing to issue a determination of reasonable cause within 180 days of the date Petitioner files the Charge of Discrimination, as in the instant case, Petitioner may nevertheless request an administrative hearing but must do so within 35 days after the last day in the 180-day period.
Sections 760.11(6) and (8), Florida Statutes. See also Lewis v.
Conners Steel Co., 673 F.2d 1240, 1242 (11th Cir. 1982) (holding there is no reason why a plaintiff should enjoy an open-ended extension of time which renders the statutory time limitations meaningless).
The last day of the 180-day period was November 6, 2000. The 35-day period for requesting an administrative hearing ended on December 11, 2000. Petitioner did not file his request for hearing until December 27, 2000. Petitioner's request for hearing was approximately 16 days late.
There is no reason why Petitioner should enjoy an extension of the statutory time limitations because the Commission failed to complete its investigation and issue its determination of reasonable cause within the time prescribed by statute. The time limitations prescribed in Sections 760.11(3), (6), and (8), Florida Statutes, are not subject to extension or
manipulation for administrative convenience of state agencies, including the Commission and Division of Administrative Hearings. One of the fundamental principles of administrative law is the legal principle that a state agency cannot enlarge the statutory authority granted it by the Legislature. This principle of administrative law is the subject of longstanding legislative reenactment and judicial enforcement.
The 35-day time limit prescribed in Section 760.11(6), Florida Statutes, is properly construed to begin on the first day after the 180-day period authorized in Section 760.11(3), Florida Statutes. An interpretation of Section 760.11(6), Florida Statutes, that allows Petitioner to file a request for administrative hearing after the expiration of the 35-day time limit would reduce to a nullity the time limits imposed by the Legislature in Sections 760.11(3) and (6), Florida Statutes, and, conceivably, could extend the time limit for requesting an administrative hearing beyond the four-year statute of limitations for civil actions allowed in Section 95.11(3)(f), Florida Statutes.
In Joshua v. City of Gainesville, 768 So. 2d 432 (Fla.
2000), the Florida Supreme Court held that the four-year statute of limitations prescribed in Section 95.11(3)(f), Florida Statutes, rather than the one-year time limit prescribed in Section 760.11(5), Florida Statutes, applies to "civil actions"
filed by aggrieved persons. The decision did not address time limits applicable to administrative hearings. As the court noted:
The question . . . is whether or not . . . the Legislature intended persons aggrieved under [Chapter 760.] to proceed with a civil action without investigation by the Commission or notice from the Commission of the available options. When the Act is read as a whole, we conclude that the Legislature wanted persons who believe they have been the object of discrimination to go through the administrative process prior to bringing a circuit court civil action. (Emphasis supplied)
Id. at 436.
The decision in Joshua addresses the one-year statute of limitations and does not require Division of Administrative Hearings Administrative Law Judges to enlarge, modify, or contravene the 180-day and 35-day time limits imposed by the Legislature in Sections 760.11(3), (6), (7), and (8), Florida Statutes.
While an administrative hearing at the Division of Administrative Hearings is not a civil action, administrative hearings can be subject to strict time limits. In an apparent effort to protect from unreasonable delay, the Legislature imposed strict time limits on the availability of administrative remedies in cases such as the instant case. First, the Legislature imposed in Section 760.11(3), Florida Statutes, a
180-day time limit on the mandatory administrative investigation by the Commission. Second, the Legislature imposed in Sections 760.11(6) and (7), Florida Statutes, a 35-day time limit on the right to request an administrative hearing.
Sections 760.11(3), (6), and (7), Florida Statutes, authorize administrative hearings up to 215 days after the date of filing the Charge of Discrimination. After 215 days, there is no statutory authority for an administrative hearing. If a person does not request an administrative hearing within 215 days of the filing of the Charge of Discrimination, he or she has exhausted his or her administrative remedies and need not further delay before filing a civil action.
A person is not required to proceed with an administrative hearing prior to a civil action in any court of competent jurisdiction when the Commission fails to make a determination within the 180-day time period. Rather, Sections 760.11(4) and (8), Florida Statutes, give an aggrieved person the right to elect either a civil action or an administrative hearing. However, Section 760.11(4), Florida Statutes, makes the election of either the exclusive remedy available.
When an aggrieved person files a request for administrative hearing more than 215 days after filing the Charge of Discrimination, Section 760.11(4), Florida Statutes, does not operate to preclude filing a civil action within the
appropriate time limits dictated by Section 95.11(3)(f), Florida Statutes. There is no statutory authority to request an administrative hearing more than 215 days after the date that the aggrieved person files a Charge of Discrimination. An untimely request for an administrative hearing lacks statutory authority, is void, and does not operate as an election of remedies within the meaning of Section 760.11(4), Florida Statutes. Chapter 760, Florida Statutes, is a remedial statute and should be liberally construed in favor of the aggrieved person. Joshua, 768 So. 2d at 435. The sole remedy now available to Petitioner is a civil action; Petitioner has four years from March 9, 1999, to pursue a judicial remedy.
There is no evidence to suggest that the state agency or Respondent lulled Petitioner into inaction and caused the Petition for Relief which requested an administrative hearing to be filed more than 35 days after the expiration of the 180-day period in which the Commission has to make a determination of reasonable cause.
Even if Respondent's Motion to Dismiss was denied, it does not change the outcome of this case. Petitioner failed to satisfy his burden of proof.
Section 760.10(1), Florida Statutes, in relevant part, makes it an unlawful employment practice for Respondent to discriminate against Petitioner because of Petitioner's age.
Chapter 760, Florida Statutes, entitled the Florida Civil Rights Act, adopts the legal principles and judicial precedent set forth under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C., Section 2000 et seq. King v. Auto, Truck, Indus. Parts and Supply, Inc., 21 F. Supp. 2d 1370 (N.D. Fla.
1998); Carlson v. WPLG/TV-10, Post-Newsweek Stations of Florida, 956 F. Supp. 994 (S.D. Fla. 1996).
The law affords no protection from discrimination unless Respondent engages in an adverse employment action. Morisky v. Broward County, 80 F.3d 445 (11th Cir. 1996); Bristow v. Daily Press, 770 F.2d 1251 (4th Cir. 1985).
The United States Supreme Court has established an analytical framework within which courts should examine claims of discrimination, including claims of age discrimination. In cases alleging discriminatory treatment, Petitioner has the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993); Combs v. Plantation Patterns, 106 F.3d. 1519 (11th Cir. 1997).
Petitioner can establish a prima facie case of discrimination in one of three ways: (1) by producing direct evidence of discriminatory intent; (2) by circumstantial evidence under the McDonnell Douglas framework; or (3) by establishing statistical proof of a pattern of discriminatory
conduct. Carter v. City of Miami, 870 F.2d 578 (11th Cir.
1989). If Petitioner cannot establish all of the elements necessary to prove a prima facie case, Hanger is entitled to entry of judgment in its favor. Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990).
To establish a prima facie case of discrimination, Petitioner must show that: he is a member of a protected class; he suffered an adverse employment action; he received disparate treatment from other similarly situated individuals in a non- protected class; and that there is sufficient evidence of bias to infer a causal connection between his age and the disparate treatment. Andrade v. Morse Operations, Inc., 946 F.Supp. 979 (M.D. Fla. 1996). Petitioner is a member of a protected class due to his age, 88 years old. Hanger engaged in an adverse employment action when Hanger terminated Petitioner's employment. The remaining issue is whether Hanger engaged in the adverse employment action because of Petitioner's age.
Petitioner made a prima facie showing that, due to his age, he is a member of a protected class and that he suffered an adverse employment action. However, Petitioner failed to make a prima facie showing that he received dissimilar treatment from
individuals in a non-protected class; that there was any bias against Petitioner; or that, even if evidence of bias did exist,
it was sufficient to infer a causal connection between Petitioner's age and the alleged disparate treatment.
With the exception of an equivocal comment by an executive of Respondent, Petitioner submitted no evidence, direct, circumstantial, or statistical, of the alleged discrimination. Evidence was received that, in the context of a conversation regarding over staffing at Respondent's Gore Street facility, Wallace Faraday, an executive employee of Respondent, made a remark to the effect, "Isn't it time for Al [Petitioner] to retire, maybe one of his sons will hire him." Comments alleged to have been made by persons unrelated to the actual decision making process do not constitute direct evidence that the Petitioner's age was a factor in the decision to terminate his employment. Mitchell v. USBI Co., 186 F.3d 1352 (11th Cir. 1999) (alleged comments by managers who were not decision makers with respect to the decision to lay off the plaintiff did not raise an inference of age discrimination); Standard v. A.B.E.L.
Services, Inc., 161 F.3d 1318 (11th Cir.1998) (comment that "older people have more go wrong" was not relevant or probative of the discriminatory intent because the management individual who made the comment was not involved in the decision to terminate the plaintiff); Mauter v. Hardy Corp., 825 F.2d 1554 (11th Cir. 1987) (holding that the Vice President's comment that the company was "going to weed out the old ones" was not
evidence of discriminatory intent as the Vice President played no part in the decision to terminate the plaintiff).
If Petitioner had satisfied his burden of establishing a prima facie case of discrimination, an inference would have arisen that the adverse employment action was motivated by a discriminatory intent. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas v. Green, 411
U. S. 792 (1973). The burden would have then shifted to Respondent to articulate a legitimate, non-discriminatory reason for its action. Id.
Even though Respondent was not required to do so, Respondent articulated a legitimate, non-discriminatory reason for its action. Respondent terminated the employment of Petitioner based on his demonstrated intention of competing with Hanger despite his status as an employee.
Once Hanger successfully articulates a non- discriminatory reason for its action, the burden shifts back to Petitioner to show that the proffered reason is a pretext for unlawful discrimination. Petitioner must provide sufficient evidence to allow a reasonable fact-finder to conclude that the proffered reason is not the actual motivation for the adverse employment action. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998).
Petitioner may show that Respondent's articulated reason is a pretext by showing that the non-discriminatory reason should not be believed; or by showing that, in light of all the evidence, discriminatory reasons more likely motivated the decision than the proffered reason. Id. Petitioner did
neither. Petitioner failed to present any evidence showing that Hanger either should not be believed or that discriminatory reasons, rather than the proffered reason, more likely motivated the adverse employment action.
RECOMMENDED that the Commission enter a final order granting Hanger's Motion to Dismiss finding that Petitioner's Election of Rights and request for an administrative hearing was not timely filed, finding that Hanger did not discriminate against Petitioner, and denying Petitioner's Charge of Discrimination and Petition for Relief.
DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida.
JEFF B. CLARK
Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2001.
Lisa H. Cassilly, Esquire Ashley B. Davis, Esquire Alston & Bird, LLP
Azizi M. Dixon, Clerk
Alton M. Saunders Jerome Saunders
Dana A. Baird, General Counsel Florida Commission on Human Relations
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
