STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRY B. HILLMAN,

Petitioner,

vs.

CHEM-POLYMER CORPORATION,

Respondent.

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) Case No. 01-2904

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RECOMMENDED ORDER

On October 10, 2001, a formal administrative hearing in this case was conducted telephonically in Fort Myers and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Terry B. Hillman, pro se

2048 Laurel Lane

North Fort Myers, Florida 33917

For Respondent: Robert E. Tardif, Jr., Esquire

Duncan & Tardif, P.A.

1601 Jackson Street, Suite 101 Post Office Box 249

Fort Myers, Florida 33902-0249 STATEMENT OF THE ISSUE

The issue in the case is whether the Respondent unlawfully discriminated against the Petitioner on the basis of age.

PRELIMINARY STATEMENT

By Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR), Terry B. Hillman (Petitioner) asserts that the Chem-Polymer Corporation (Respondent) discriminated against him on the basis of age. By Notice of Determination dated April 12, 2000, the FCHR found "that there is no reasonable cause to believe that an unlawful employment practice has occurred."

By Petition for Relief filed with the FHCR on May 22, 2000, the Petitioner requested a formal administrative hearing. The Petition for Relief was transmitted to the Florida Division of Administrative Hearings on June 29, 2000, and a hearing was scheduled. On August 9, 2000, the Respondent filed a Motion for Recommended Order of Dismissal. On August 25, 2000, a Recommended Order of Dismissal was entered and the case was returned to the FCHR.

By Order Remanding Petition filed with the Division of Administrative Hearings on May 21, 2001, the FCHR returned the case for hearing. The Division reopened the file and scheduled the case for hearing.

At the hearing, the Petitioner testified on his own behalf and presented the testimony of six witnesses. The Respondent

presented the testimony of two witnesses and had exhibits numbered 2-9 admitted into evidence.

No transcript of the hearing was filed. Both parties filed Proposed Recommended Orders.

FINDINGS OF FACT

1. The Respondent initially employed the Petitioner in the maintenance department in January 1996.

2. There is no evidence that the Petitioner’s employment in the maintenance department was unsatisfactory.

3. In May 1996, the Petitioner transferred into the production department.

4. The Petitioner’s supervisor in the production department described his performance as somewhat unsatisfactory but made no written report of any problems.

5. On September 17, 1996, the Petitioner transferred into the laboratory and began work as a lab technician. The transfer in the lab technician position was at the Petitioner’s request.

6. On October 21, 1996, Richard Barnes, an employee of the Respondent, assumed supervisory responsibility for the laboratory operation.

7. On November 8, 1996, Mr. Barnes met with the Petitioner to discuss the job. At the time of the November 8 discussion, the Petitioner had been working in the lab for almost eight weeks.

8. The Respondent’s lab employees are responsible for assuring that the materials produced by the plant comply with the "release specifications" set by the buyers of the materials. During the discussion, the Petitioner was asked about specific tasks assigned to lab employees. His response was incorrect and indicated a lack of familiarity with lab procedures. The Petitioner was informed that his job performance was unsatisfactory.

9. Over the next week, Mr. Barnes continued to monitor the situation, and subsequently decided to terminate the Petitioner’s employment for unsatisfactory performance.

10. On November 18, 1996, the Respondent terminated the Petitioner’s employment on the grounds of unsatisfactory work performance. At the time of the termination, the Petitioner was

    56 years old.

    
    

11. During the time of the Petitioner’s transfer into, and termination from, the lab, the Respondent was in the process of expanding the number of lab employees from six to ten employees.

12. Shortly before terminating the Petitioner’s employment, the Respondent transferred another employee, of similar age as the Petitioner, into the lab.

13. Shortly after the Petitioner’s termination, Respondent transferred another employee, younger than the Respondent, to the lab. The transfer of the younger employee was being

    processed prior to the termination of the Petitioner’s employment. There is no evidence that a transfer of the younger employee was related to the termination of the Petitioner’s employment.

14. The evidence fails to establish that termination of the Petitioner’s employment was based on his age. There is no evidence that the Respondent discriminated against the Petitioner on the basis of age.

15. There is no evidence that the Petitioner suffered any economic injury based on the termination. He became employed shortly after the termination at a salary higher than the Respondent was paying him. Subsequent employment has included additional increases in compensation.

16. The Petitioner asserts that had he remained employed by the Respondent, his compensation would have included promotions and increased compensation. The evidence fails to establish that the Petitioner would have received further promotions from the Respondent.

    CONCLUSIONS OF LAW

    
    

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

18. The Respondent is an employer for purposes of this proceeding.

19. It is an unlawful employment practice for an employer to discharge any individual because of such individual's age. Section 760.10(1)(a), Florida Statutes.

20. The Florida Civil Rights Act of 1992 is patterned after Title VII of the Civil Rights Acts of 1964 and 1991, 42

    U.S.C. Section 2000e, et seq., as well as the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Section 621, et seq. Federal case law interpreting Title VII and the ADEA is applicable to cases arising under the Florida Act. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

21. In order to establish a prima facie case of age discrimination under Section 760.10(1)(a), Florida Statutes, the 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 McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). If the Petitioner is able to establish a prima facie case, the burden then shifts to the Respondent to articulate a legitimate, nondiscriminatory reason for its employment decision. If the Respondent is able to articulate a legitimate reason for the employment action, the

    Petitioner must then show that the Respondent’s actions were merely a pretext for discrimination.

22. In this case, the evidence fails to establish a prima facie case of age discrimination. The Petitioner failed to establish that he was fully qualified for the job from which he was terminated. The evidence establishes that the Petitioner’s job performance was unsatisfactory.

23. Further, the evidence fails to establish that the Petitioner was replaced by another person of a different age, with equal or lesser qualifications. Employment in the lab was being expanded at the time of the Petitioner’s termination. One of the employees who transferred into the lab at the time of the Petitioner’s termination was of similar age as the Respondent. Another transferring employee was younger than the Respondent was, but his transfer was being processed prior to the termination of the Petitioner’s employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief filed by Terry B. Hillman.

DONE AND ENTERED this 28th day of November, 2001, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(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 28th day of November, 2001.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Terry B. Hillman 2048 Laurel Lane

North Fort Myers, Florida 33917

Robert E. Tardif, Jr., Esquire Duncan & Tardif, P.A.

1601 Jackson Street, Suite 101 Post Office Box 249

Fort Myers, Florida 33902-0249

Cecil Howard, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.

Docket for Case No: 01-002904

Orders for Case No: 01-002904