STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM MONZIDELIS,

Petitioner,

vs.

MELBOURNE SHUTTLE, INC.,

Respondent.

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)

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) Case No. 04-4029

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) *AMENDED AS TO

) RECOMMENDATION ONLY

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)

*AMENDED 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 January 6, 2005, in Cocoa, Florida.

APPEARANCES

For Petitioner: William Monzidelis, pro se

2460 Alicia Lane

Melbourne, Florida 32835

For Respondent: Sandra Tant, President

Melbourne Shuttle, Inc.

1 Air Terminal Parkway Melbourne, Florida 32901

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner on the basis of his age, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2003).

PRELIMINARY STATEMENT

On October 28, 2004, Petitioner, William Monzidelis, filed a Petition for Relief with the Florida Commission on Human Relations alleging that Respondent, Melbourne Shuttle, Inc., had committed an unlawful employment practice by discriminating against him because of his age. The case was forwarded to the Division of Administrative Hearings on November 4, 2004. On November 5, 2004, an Initial Order was sent to both parties.

On December 7, 2004, a Notice of Hearing was forwarded to both parties, scheduling the case for final hearing on

January 6, 2005, in Cocoa, Florida.

The case was heard as scheduled. Petitioner presented one witness, himself, and did not offer any exhibits. Respondent was represented by its president, Sandra Tant, who testified and offered two exhibits which were received into evidence and marked Respondent's Exhibits 1 and 2.

The parties were advised of their right to submit proposed recommended orders. Both parties indicated that they would not submit proposed recommended orders. No transcript of proceedings was prepared.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made:

1. On March 11, 2004, Petitioner, who was 73 years old, submitted an application for employment to Respondent.

2. Respondent is in the business of transporting passengers to and from airports in Melbourne and Orlando, Florida. It has four regular employees and approximately 20 independent contractors.

3. Petitioner maintains that in an interview with Sandra Tant, president of the Respondent corporation, he was advised that he was "too old" to be employed. This is the sole basis of his claim.

4. Respondent specifically denies having made any statement, either directly or indirectly, to the effect that Petitioner was "too old" to be hired.

5. Respondent testified that Petitioner's motor vehicle operator's license had a "hole" punched through the year portion of the date of birth. This occasioned inquiry into Petitioner's age, although he appears to be his stated age.

6. Petitioner denied that there is a hole in his motor vehicle operator's license. In the copy of Petitioner's motor vehicle operator's license, which is part of Respondent's Exhibit 1, the year is obliterated. When asked to produce his motor vehicle operator's license at the hearing, Petitioner stated that he did not have it.

7. Respondent indicated that Petitioner was disqualified from employment by insurance requirements. Respondent presented a list of Respondent's insurer's driver eligibility standards which indicate that "[T]wo years of driving experience with a like vehicle (limousine, van &/or bus) is preferred." Sandra Tant's testimony on relevant matters is more credible.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. § 120.57(1), Fla. Stat. (2004).

9. Subsection 760.10(1), Florida Statutes (2003), 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).

10. 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).

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

12. To establish a prima facie case of discrimination, Petitioner must show: that he is a member of a protected class, that he suffered an adverse employment action, that 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).

13. 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; he was not hired. 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.

14. Petitioner's case is predicated on his statement that he was told by Respondent's representative that he was "too old" to be employed. This was affirmatively denied by the lady who purportedly authored the statement. Other than his testimony that the statement was made, Petitioner offered no other evidence, direct, circumstantial, or statistical, of the alleged discrimination.

15. 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 Corp. 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.

16. Even though Respondent was not required to do so, Respondent articulated a legitimate, non-discriminatory reason

    for its action. Respondent demonstrated that Petitioner's lack of experience driving jitneys was the basis for not hiring Petitioner.

17. Once Respondent 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).

18. 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 Respondent either should not be believed or that discriminatory reasons, rather than the proffered reason, more likely motivated the adverse employment action.

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 finding that Respondent did not discriminate against Petitioner and dismissing the Petition for Relief.

DONE AND ENTERED this 1st day of February, 2005, 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 1st day of February, 2005.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

William Monzidelis 2460 Alicia Lane

Melbourne, Florida 32835

Sandra Tant, President Melbourne Shuttle, Inc.

1 Air Terminal Parkway Melbourne, Florida 32901

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 Amended Recommended Order. Any exceptions to this Amended Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 04-004029

Orders for Case No: 04-004029