STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES L. HEIDEL,

Petitioner,

vs.

NORTHROP GRUMMAN CORPORATION,

Respondent.

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) Case No. 04-0557

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on April 21, 2004, in Viera, Florida.

APPEARANCES

For Petitioner: James L. Heidel, pro se

2423 Saint Charles Avenue Melbourne, Florida 32935

For Respondent: Bart C. Barre, Esquire

Qualified Representative Northrop Grumman Corporation

1000 Wilson Boulevard, Suite 2300

Arlington, Virginia 22209-2278 STATEMENT OF THE ISSUE

Whether Respondent, Northrop Grumman Corporation, discriminated against Petitioner, James L. Heidel, on the basis of his age and disability, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2002).

PRELIMINARY STATEMENT

On January 6, 2004, the Florida Commission on Human Relations mailed Petitioner a Notice of Determination: No Cause and a Determination: No Cause on the Charge of Discrimination he filed on May 28, 2003, against Respondent. On February 16, 2004, Petitioner's Petition for Relief was received by the Florida Commission on Human Relations, which transmitted the petition to the Division of Administrative Hearings on the following day, February 17, 2004. On February 17, 2004, an Initial Order was sent to both parties.

On March 2, 2004, Bart C. Barre, Esquire, was qualified to appear as the Qualified Representative of Respondent. On

March 3, 2004, the case was scheduled for final hearing in Viera, Florida, on April 21, 2004.

The final hearing took place as scheduled. In addition to testifying on his own behalf, Petitioner presented three witnesses: John Tartaro, Bob Doyle, and Robert Gildersleeve.

He offered eight exhibits which were admitted into evidence as Petitioner's Exhibits 1 through 8. Respondent presented the same three witnesses and offered four exhibits which were received into evidence as Respondent's Exhibits 1 through 4.

The Transcript of Proceedings was filed on May 10, 2004. Both parties filed Proposed Recommended Orders which were considered in the preparation of this Recommended Order.

FINDINGS OF FACT1

1. Northrop Grumman Information Technology (Northrop Grumman IT) is the information technology sector of Northrop Grumman Corporation. Northrop Grumman IT is divided into several business units, one of which is Internal Information Services (IIS), which is headquartered in Dallas, Texas, and has over 2,000 employees at Northrop Grumman Corporation locations across the country and the world.

2. IIS provides internal information services support to the Northrop Grumman Information Systems (IS) sector facility (AGS&BMS) in Melbourne, Florida. The IIS support of the Melbourne site mirrors its IS customer's functions and organizations.

3. Petitioner began working for Northrop Grumman Corporation in 1996, as a database administrator (job title: DB Arch Tech NG Internal Sys. 4).

4. Petitioner was a database administrator for the CoastPoint finance system at the Melbourne site. After Petitioner was moved off of the CoastPoint effort, Petitioner provided database administration support for the MetaPhase system for a number of months concurrently with his database administration work in the ILS (logistical support directorate of Northrop Grumman Corporation).

5. Petitioner was added to the ILS area as a database administrator. Petitioner also performed limited software engineering tasks to the extent that he had time in addition to his primary role of ILS database administration duties.

6. Petitioner never disputed that Joe Boniface had superior familiarity and experience with all aspects of the ILS area. Indeed, if Petitioner compared himself to Mr. Boniface for purposes of layoff, Petitioner agrees that Respondent should have kept Mr. Boniface because of his seniority, greater experience, and managerial leadership.

7. In 2002, the IS customer's budget for the ILS area was reduced as a result of the ramping down of "JSTARS" work, which is the primary focus of the Melbourne facility.

8. This budget cut affected the level of budget that was available for IIS support work and resulted in Petitioner's layoff.

9. At the time of Petitioner's layoff, there were two employees, Petitioner and Mr. Boniface (job title: S/W Eng NG Internal Sys. 4), providing database administration support for the ILS area of the IS customer. Mr. Boniface was the IIS lead for the ILS area and, in addition to his database system administration efforts, he worked in a software engineer capacity, developing and/or maintaining Oracle applications for

   ILS, and was the primary interface with the IS customer regarding IIS support of the ILS area. Simply stated,

   Mr. Boniface was a critical and irreplaceable person for IIS support in Melbourne.

10. Upon Petitioner's layoff, Mr. Boniface continued the Oracle database administration duties that Petitioner had performed.

11. At the time of Petitioner's layoff, there were two Database Services employees, Petitioner and Jim Ardito (job title: DB Arch Tech NG Internal Sys. 4), for Oracle database support needs at the Melbourne site. Mr. Ardito was a 20-year veteran of database administration, was the administrator of nine databases supported by IIS in Melbourne, and was a 32-year employee of Northrop Grumman Corporation. Petitioner was a back-up Oracle database administrator for Mr. Ardito to the extent he took vacation or was out of the office.

12. As part of the layoff decision process affecting Petitioner, management and human resources prepared a rank order analysis, comparing the charging party to the other person in his job group, Mr. Ardito.

13. Mr. Ardito was 59 years old at the time of Petitioner's layoff.

14. Upon Petitioner's layoff, Mr. Boniface resumed the database administration duties that Petitioner had been performing, in addition to his other duties.

15. Mr. Boniface was 46 years old at the time of Petitioner's layoff.

16. Andrew Caldwell worked for IIS as a "job shopper" at the Melbourne site, as a computer consultant to Northrop Grumman Corporation from July 1997 to August 1998.

17. Mr. Caldwell was formally hired as a Northrop Grumman Corporation employee on or about August 1998. He was hired as a software engineer (job title: S/W Eng NG Internal Sys. 3).

    Mr. Caldwell supported the CoastPoint project as a software engineer prior to his role supporting the ILS area as a software engineer.

18. At the time he was terminated from employment with Respondent, Petitioner was 50 years old. Petitioner's job responsibilities were assumed by Mr. Boniface, Petitioner's technical lead who had done Petitioner's job before Petitioner was hired.

19. Petitioner offered no evidence of any physical disability or any suggestion that he had been discriminated against because of a physical disability.

20. Petitioner suggests that he was replaced by a "younger" co-employee, Mr. Caldwell; however, no evidence was

    presented regarding Mr. Caldwell's age (Petitioner testified "I don't know his exact age. He is about 30, I would guess"). In addition, Mr. Caldwell's job description was software engineer (job title: S/W Eng NG Internal Sys. 3), a job in which he continued after Petitioner's termination. Mr. Caldwell was not a database administrator which was Petitioner's job description.

21. Faced with a significant budget cut, Respondent conducted an orderly analysis of its customer requirements and decided it had to eliminate a database administrator.

22. Faced with a management direction to reduce employees, Bob Gildersleeve and John Tartaro, Petitioner's supervisors, made a decision between Petitioner and Mr. Ardito, as set forth herein above (paragraphs 11, 12 and 13). The decision was based on sound reasoning and was not based on the ages of the

    individuals.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.57 and 760.11, Fla. Stat. (2003).

24. In his Petition for Relief, Petitioner claims Respondent violated the Florida Civil Rights Act by discriminating and retaliating against him when it laid him off based on his age and disability. No evidence was presented that

    Petitioner had a disability or that he was a victim of retaliation. Those claims are not further considered.

25. Section 760.10(1), Florida Statutes (2002), in relevant part, makes it an unlawful employment practice for Respondent to discriminate against Petitioner because of Petitioner's age. Chapter 760, Florida Statutes (2002), 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 2000e 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).

26. 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).

27. Petitioner can establish a prima facie case of age discrimination in one of three ways: (1) by producing direct evidence of discriminatory intent; (2) by circumstantial

    evidence under the framework set forth in McDonnell Douglas Corp. v Green, 411 U.S. 792, 93 S. Ct. 1817, L. Ed. 2d 668

    (1973); 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, Respondent is entitled to entry of judgment in its favor. Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990).

28. To establish a prima facie case of age-based 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 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).

29. Petitioner is a member of a protected class due to his age, 50 years old. He has suffered an adverse employment action: he was terminated. He has failed to present evidence that he received disparate treatment from other similarly situated individuals in a non-protected class. He suggested that he was treated differently than was a "younger" worker. The evidence indicated that the "younger" worker was not similarly situated, because he had a different job

    responsibility. In fact, Petitioner acknowledged that the employee who actually assumed Petitioner's job responsibilities had superior familiarity and experience with ILS database administration. In addition, Petitioner agreed that if Petitioner compared himself to the employee who assumed his job responsibilities, Respondent made the correct decision.

    Finally, having failed to present evidence of disparate treatment, Petitioner necessarily fails to demonstrate that there is sufficient evidence of bias to infer a causal connection between his age and the disparate treatment.

30. Petitioner failed to present sufficient evidence to establish a prima facie case.

31. However, because the undersigned reserved ruling on Respondent's Motion for a Recommended Order of Dismissal based on Petitioner's failure to present a prima facie case, Respondent presented persuasive evidence that Petitioner's termination was a result of a difficult, economically-driven, business decision, not based on unlawful discrimination.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief and finding that Petitioner failed to present a prima facie case

and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons.

DONE AND ENTERED this 8th day of July, 2004, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 8th day of July, 2004.

ENDNOTE

1/ Findings of Fact 1 through 17 were stipulated to by the parties and published in the Joint Pre-hearing Stipulation filed on April 12, 2004.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

James L. Heidel

2423 Saint Charles Avenue Melbourne, Florida 32935

Bart C. Barre, Esquire Northrop Grumman Corporation

1000 Wilson Boulevard, Suite 2300

Arlington, Virginia 22209-2278

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 04-000557

Orders for Case No: 04-000557