MARK J. ARMESTO,
vs.
Respondent.
) Case No. 02-3996
Upon due notice, a disputed-fact hearing was held before the Division of Administrative Hearings by its duly-designated Administrative Law Judge, Ella Jane P. Davis, on January 21, 2003, in Tallahassee, Florida.
For Respondent: Maura M. Bolivar, Esquire
David K. Miller, Esquire Broad & Cassel, P.A.
215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302
Whether Respondent has committed an unlawful employment practice against Petitioner on the basis of age discrimination.
Petitioner timely filed a Charge of Discrimination with the Florida Commission on Human Relations. Subsequent to the Commission's Determination: No Cause, Petitioner timely filed a Petition for Relief. The case was referred to the Division of Administrative Hearings on or about October 15, 2002.
At the disputed-fact hearing, Petitioner testified on his own behalf and presented the oral testimony of Marilyn Strange, Eddie Daughtry, and George Michael (Mike) Strickland. He had two exhibits admitted in evidence, P-1 and P-2. Respondent also presented the oral testimony of Mr. Strickland and Ms. Strange, and of Tom Rockwood and James Stabler. Respondent's Exhibits
R-1 through R-11 (composite), R-13, R-15, and R-16, were admitted in evidence. There was no R-14, and R-12 was withdrawn.
A Transcript was filed in due course, and Respondent timely filed, within the extended time frame requested by the parties, a Proposed Recommended Order, which has been considered.
Petitioner timely filed a notice that he would not be filing a proposed recommended order.
Petitioner was born on December 11, 1929. He was a salaried employee of Respondent at its Havana, Florida, plant
from 1985 until March 31, 1995. Therefore, during this employment period he was 56 to 65 years of age.
Respondent is a forest product company headquartered in Weldon, North Carolina. The Havana, Florida, plant manufactures plywood products and is the largest of Respondent's 20 plants, with approximately 300 employees. As such, it qualifies as an "employer," as defined by Chapter 760, Florida Statutes.
From 1985 to 1995, Petitioner served as Plant Purchasing Agent. His duties included pricing and purchasing parts used in the plywood manufacturing process, managing the parts inventory, and maintaining the stockroom.
Petitioner's direct supervisor was the Plant Manager.
The Plant Manager reports to the Havana Plant's General Manager. In 1989, Tom Rockwood assumed the post of General Manager at the Havana plant.
Prior to retirement, Petitioner had signed a performance review of himself for the period October 1992 through October 1993, which stated, in part:
Some progress made in stockroom setup but still needs work;
Hasn't totally insisted that his office and stockroom be kept in manner that [is] safe, clean and efficient;
Still has to be prodded at times instead of taking the ball and running with it.
Also, in March 1994, Petitioner had not followed instructions regarding arrangements for shipping materials to the plant. Management concluded that his actions had resulted in excessive costs. Mr. Rockwood met with Petitioner to express his dissatisfaction on this subject. After the meeting,
Mr. Rockwood documented their conversation and his oral reprimand of Petitioner by a memorandum to Petitioner's personnel file. Petitioner was not given a copy of the memorandum and knew nothing about its existence, but Petitioner could have looked at his personnel file at any time. Petitioner did not refute that the meeting and reprimand had, in fact, occurred.
Petitioner also had signed his performance review for the period October 1993 through October 1994, the last performance review before his retirement, which stated, in part:
Very little progress made in storeroom setup;
Did have improvement on take [sic] responsibilities for projects, but still needed much help;
Still needs to become more of a person who can plan things out for himself;
Mark did do better than year before, but still needed prodding at times on projects. Mark put forth more effort this year but much improvement still needed.
After his 1994 performance review, Petitioner informed his superiors that he wished to retire in March 1995.
Petitioner contended that he did not voluntarily retire, but was forced out of his position, effective March 31, 1995. However, he was unable to relate his retirement to any discrimination on the basis of age, and further admitted that what had occurred with regard to his retirement was that he had been asked by superiors when he would retire and that he had unilaterally selected March 31, 1995, as his retirement date, because it accommodated his reaching his 65th birthday.
Mr. Rockwood acknowledged that Petitioner had discussed retirement with him targeted for March 1, 1995, but that, at Petitioner's request, Petitioner had stayed on until March 31, 1995.
Petitioner conceded that his performance reviews from 1993 and 1994 contained "suggestions for improvement," and that he had just assumed he was doing a good job prior to retirement because he had received regular pay increases. Mr. Rockwood explained that Petitioner had received cost of living increases in pay, but that his pay increases would have been higher if his performance had been better.
Respondent's managerial employees, who had reason to know and who testified at hearing, assessed Petitioner as lacking in initiative. Mr. Rockwood stated that Petitioner was
a "people person," being "very good at working with people . . . but attention to detail is not something he's ever been interested in."
In 1997, Respondent hired Mike Strickland as Plant Manager. Mr. Strickland was Plant Manager until July 2002, and is currently employed elsewhere.
After his retirement, Petitioner repeatedly approached Mr. Rockwood requesting employment temporary enough not to interrupt his Federal Social Security retirement benefits.
Despite some prior dissatisfaction with Petitioner's job performance, Respondent's management, particularly
Mr. Rockwood, personally liked Petitioner.
Petitioner was hired by Mike Strickland on a temporary fill-in basis as an hourly worker for short periods whenever there was a vacancy in the purchasing agent position in 1997, 1998, and May 2001. Each time Petitioner was hired, the understanding was that he would work until a permanent purchasing agent was hired and trained. He was hired on these occasions because Respondent needed someone who could perform the minimum requirements of the purchasing agent job during the times when the company had a high turnover rate in the purchasing agent position. Petitioner was merely expected to train the new purchasing agent and maintain the status quo until the new purchasing agent could take over.
In 1999, Respondent's headquarters in Weldon, North Carolina, initiated a business review process to study its management information system needs. The financial manager at the Havana plant, Marilyn Strange, formed part of the task force assembled for this purpose. Management sought to modernize computer systems and use technology to achieve cost savings.
One of the corporate goals was to develop a paperless purchasing system. The company also planned to utilize computers to perform trend analysis and tracking of purchasing and inventory to increase efficiency and cut costs.
In 2000, at a company-wide meeting, the plan to implement the new computer system was unveiled. Mr. Rockwood and Ms. Strange were particularly interested in this development because they saw elimination of the cumbersome and costly
paper-intensive purchasing process as a key benefit to their plant's bottom line.
The task force's work culminated in a request for proposals to venders of computer systems. In May 2001, the Respondent accepted the proposal of Oracle Corporation for a comprehensive computer system which included a purchasing module.
The Havana plant was chosen to be the first of Respondent's plants to implement the Oracle purchasing software module, due to its large size, its management's high level of
interest in the project, and its management's confidence in their ability to successfully put the new technology into operation. The fact that Ms. Strange had served on the task force to assess needs and create the request for proposals also probably was a factor in this decision.
The decision to implement the new computer system for purchasing and inventory changed the nature of the purchasing agent's job at the Havana plant. Mr. Rockwood testified that "the one job . . . whose requirements did change significantly with the upcoming computer project was the purchasing manager [agent] position."
In June 2001, Petitioner was 72 years old and was filling in as purchasing agent because the permanent purchasing agent had resigned due to poor health. Petitioner told
Mr. Strickland that he was now interested in keeping the purchasing agent job for approximately two years.
Petitioner testified that Mr. Strickland was amenable to Petitioner staying on as purchasing agent for two years and that Mr. Strickland had stated he would not advertise the purchasing agent position as long as Petitioner gave one month's notice before leaving. Petitioner also testified that he had asked Mr. Strickland to place him on salary while he remained employed, but Mr. Strickland would not do so. Mr. Strickland's testimony is credible that he did not recall such a conversation
and had made no commitment to hire Petitioner permanently. He testified that he expected all employees to give notice prior to leaving, preferably thirty days' notice.
Mr. Strickland was aware of the corporate goal of finding a purchasing agent who had computerized purchasing and inventory experience.
Petitioner conceded that he was not computer literate in June 2001.
Given the totality of this testimony, it seems clear that there was no meeting of the minds of the two men, and, therefore, Petitioner's and Mr. Strickland's conversations created no oral contract guaranteeing Petitioner's continued employment for two years, solely at Petitioner's will.
However, out of respect for Petitioner's feelings, Mr. Strickland informed him, prior to placing an advertisement in the paper, that the job of purchasing agent would be advertised. Mr. Strickland told Petitioner that the company was looking for an employee with business experience with purchasing and inventory computer skills, and one who was willing to make a commitment for more than two years.
Although the newspaper advertisement published in late June or early July 2001, did not specifically state that computer skills or a two-year commitment was required, the Havana plant's management's ideal candidate for purchasing agent
was someone with experience with a computerized purchasing and inventory system, who would stay a long time.
The advertisement only required four years of purchasing agent experience anywhere. Petitioner had 10 years of purchasing agent experience in the same plywood plant.
In response to the advertisement, Petitioner submitted a resume to Mr. Strickland. However, he submitted no application.
Mr. Strickland informed Mr. Rockwood that Petitioner had submitted a resume and further informed him of Petitioner's interest in coming back to work full time for two years as the permanent purchasing agent. Mr. Rockwood instructed
Mr. Strickland to not respond to Petitioner so as not to upset, insult, or disappoint him, and so as to force Petitioner to come to Mr. Rockwood if he were seriously interested in the position.
Three to five persons submitted applications, not counting Petitioner. All applicants had past purchasing experience. Two applicants had experience in computerized purchasing and inventory systems. Only three applicants were interviewed.
Petitioner told Marilyn Strange about his interest in the purchasing agent position. He told her he thought he was not being considered for the job because of his lack of computer skills.
When he was not interviewed, Petitioner asked
Mr. Strickland why he had not been interviewed. Mr. Strickland informed him it was for the same reasons they had previously discussed. (See Finding of Fact 27.) Petitioner protested that he had just bought a home computer and was learning how to operate it, indicating that he was aware that the purchasing agent position now required computer skills.
Mr. Strickland informed Petitioner that the company needed an employee currently experienced with purchasing and inventory software, not a novice computer user, and that it would take Petitioner too long to self-train.
Mr. Strickland was primarily responsible for screening and interviewing applicants for the purchasing agent position. Mr. Rockwood interviewed only the finalists. The key qualification that Mr. Rockwood was looking for was experience with a computerized purchasing and inventory system.
The two finalists for the purchasing agent position both had experience in Material Resource Planning (MRP) software, a common purchasing and inventory system used by many manufacturers, which management believed would be helpful for successful implementation of the Oracle purchasing module.
In October 2001, James Stabler, age 52, was hired to start work as the Havana plant's purchasing agent. In his 19 years successively as senior buyer, purchasing manager, and
commodity manager with his former employer, Mr. Stabler was charged with a high level of responsibility for that company's purchasing function. Mr. Stabler had never managed a stockroom because his prior employer used a work-cell concept of storing parts near production line components instead of a single large stockroom. However, that prior company had a manual purchasing system when he began working there, and Mr. Stabler formed part of the team that put into operation an MRP system to manage the company's purchasing and inventory operations. Mr. Stabler also was skilled in use of Lotus and Excel spread sheet programs and had a total of 10-12 years of business experience with computers. His background was the key reason Respondent offered Mr. Stabler its purchasing agent job.
Unlike Petitioner, Mr. Strickland and Mr. Rockwood did not believe that purchasing experience specific to the plywood industry was required. They preferred a candidate with the desired computer background over one, such as Petitioner, who had plywood industry experience but who lacked computer skills.
Petitioner presented no direct evidence that age was a motivating factor in the decision not to hire him permanently in 2001. He admitted that he only assumed management decisions were due to his age because he could see no reason why he was not hired. He presented no evidence that his computer skills were equal, or superior, to Mr. Stabler's computer skills. He
admitted that at the time Mr. Stabler was hired, he had never taken any computer courses.
Due to an economic downturn and reduced corporate profits, senior management at Respondent's corporate headquarters decided to implement only the Oracle general ledger and accounts payable module, delaying implementation of the other modules, including the purchasing module.
Therefore, it was not until 2002, that Financial Manager Strange and Purchasing Agent Stabler obtained permission from corporate headquarters to install the Oracle purchasing module at the Havana plant. Corporate headquarters only agreed to permit them to install the purchasing module if they could do it without assistance from outside consultants. Thus, Respondent's computerization of purchasing at the Havana plant was not implemented until 2002. It still was not complete as of the date of hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57 (1) and Chapter 760, Florida Statutes.
It is an unlawful employment practice for an employer to discriminate against any individual with respect to terms,
conditions, or privileges of employment on the basis of age. See, Section 760.10(1)(a), Florida Statutes.
The Florida Civil Rights Act, Section 760.01, et seq, is patterned after Title VII of the Federal Civil Rights Act, 42
U.S.C. Section 2000E, et seq. Federal case law interpreting Title VII 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). Likewise, case law under the Age Discrimination and Employment Act (ADEA), 29 U.S.C. Section 623 et seq., may be helpful.
Petitioner has the burden of proof to show that he was discriminated against on the basis of age. To establish a prima facie case of age discrimination, Petitioner must show that he
(1) was a member of a protected age group, (2) was subjected to adverse employment action, (3) was qualified to do the job, and
(4) that he lost the position to a younger individual.
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
Herein, Petitioner did not meet the burden of proving a prima facie case of age discrimination. He proved that at the material time he was a 72-year-old man, who was subject to an adverse employment action (not hired for the job), and that a 52-year-old man was hired for the job. However, he did not prove that he met the qualifications for Respondent's purchasing agent position at the time of hiring.
It is acknowledged that Respondent's management's refusal to even interview Petitioner is similar to the situation in Battles v. Department of Corrections, DOAH Case No. 91-4327 (RO February 24, 1992), wherein racial discrimination was found to have occurred. However, failure to interview is not the pivotal point of that case. Therein, the employer gave as the reason it promoted a Caucasian employee over an African-American employee the facts that the promoted employee had stronger scores on a preliminary level interview, higher scores on a writing sample, and additional training hours, and it was held that because the promoted employee's superior qualifications were never made known to the supervisor who made the ultimate promotional decision, those reasons could not constitute a "legitimate non-discriminatory reason" for not promoting the African-American employee. In other words, the employer's proffered reasons were pretextural. That scenario does not exist in the instant case. In the instant case, both
Mr. Strickland and Mr. Rockwood were familiar with the Petitioner's work and capabilities. Moreover, Petitioner never actually filed an application, and apparently even some applicants did not receive an interview. Those applicants whose resumes were perceived by management as superior for the employer's current purposes were the only ones interviewed, and only those with MRP experience made the final cut.
Assuming, arguendo, but not ruling, that Petitioner has made a prima facie case, the burden would then shift to Respondent to articulate a legitimate, non-discriminatory reason for its failure to hire him. McDonnell Douglas Corporation v. Green, supra; Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991).
Respondent met its burden under the Chandler test by adequately articulating a legitimate non-discriminatory reason for hiring Mr. Stabler instead of Petitioner. Upon the evidence as a whole, it cannot be concluded that Mr. Stabler's failure to immediately implement a cohesive computerized inventory, purchasing, and stockroom system, retroactively renders pretextual the employer's reasons for hiring him.
When an employer produces evidence of a legitimate, non-discriminatory reason for its actions, any prior presumption of discrimination is eliminated, and the employee must then prove by a preponderance of the evidence that the explanation given was not its true reason, but a pretext for discrimination. "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Department of
Corrections v. Chandler, supra. Petitioner did not meet this shifted burden. "Conclusory allegations of [age]
discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination where [the employer] has offered extensive evidence of legitimate, non- discriminatory reasons for its actions. Isenbergh v. Knight- Ridder Newspaper Sales, Inc., 97 F.3d 436 (11th Circuit 1996).
An employee's feelings and perceptions of being discriminated against are not evidence of discrimination. Bickerstaff v. Vassar College, 196 F.3d 435 (2nd Circuit 1999). Petitioner cannot establish pretext simply by arguing that he is more qualified than Mr. Stabler due to Petitioner's having more years of service with the same company or in the plywood industry. Rather, Petitioner must present evidence that the alleged disparity in qualifications is "so apparent as virtually as to jump off the page and slap you in the face." Denney v.
City of Albany, 247 F.3d 1172 (11th Circuit 2001); See also, Deines v. Texas Department of Protective & Regulatory Services,
164 F.3d 277 (5th Circuit 1999), to the effect that a Petitioner's credentials must be so superior that "no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question."
Courts respect employers' discretion to chose among job candidates and do not second guess decisions regarding which qualifications to emphasize. See Chapman v. AI Transportation,
229 F.3d 1012, (11th Circuit 2000), stating, "Courts do not sit as a super-personnel department that reexamines an entity's business decisions." Even if the employer's view is mistaken, if it is honestly believed, it is not discrimination. Ghosh v. Indiana Department of Environmental Management, 192 F.3d 1087 (7th Circuit 1999).
The greater weight of the evidence herein demonstrates that Respondent's legitimate interest in hiring an employee with initiative in solving problems at a high level of proficiency in computerized purchasing and inventory, the direction in which Respondent's business was heading, was an articulate, un- rebutted reason that Respondent hired Mr. Stabler.
That the Florida Commission on Human Relations enter a Final Order denying the Petition for Relief.
DONE AND ENTERED this 27th day of March, 2003, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2003.
Maura M. Bolivar, Esquire David K. Miller, Esquire Broad & Cassel, P.A.
215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway
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.
