STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES BEAN,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

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) Case No. 05-0396

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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 May 9, 2005, in Viera, Florida.

APPEARANCES

For Petitioner: Charles Bean, pro se

431 Buffalo Street

West Melbourne, Florida 32904

For Respondent: J. Ann Cowles, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether Respondent, Department of Transportation, discriminated against Petitioner, Charles Bean, on the basis of his age and retaliated against him, as stated in the Petition

for Relief, in violation of Subsection 760.10(1), Florida Statutes (2004).

PRELIMINARY STATEMENT

On February 2, 2005, the Florida Commission on Human Relations received a Petition for Relief from Petitioner, alleging, "I believe I was discriminated against because of my age (54) and retaliation." On February 3, 2005, the Petition for Relief was forwarded to the Division of Administrative Hearings with the request that an Administrative Law Judge be assigned to conduct all necessary proceedings. On February 3, 2005, an Initial Order was issued to both parties. The case was assigned to Administrative Law Judge Jeff B. Clark.

On April 11, 2005, the case was scheduled for final hearing in Viera, Florida, on May 19, 2005. The case was presented as scheduled. Petitioner testified on his own behalf. Respondent presented six witnesses: David A. Bryant, Timothy P. McGivern, Robert J. Sikorski, Dennis Kyle, Phyllis Butler, and Petitioner. Respondent presented 13 exhibits which were received into evidence and marked Respondent's Exhibits 1 through 13. In addition, Respondent offered the Final Order in the State of Florida, Public Employees Relations Commission Case No. CS-2003- 205, Charles R. Bean, Employee, v. Department of Transportation,

Employer, which was not admitted as evidence in this case, but was marked as Respondent's Proffered Exhibit 1, and included in

the record of this final hearing. Respondent was unable to present Glenn Bridges as a witness by telephone at the final hearing as planned, so, his deposition testimony of June 2, 2005, was received as his final hearing testimony. Both the Bridges deposition and the Transcript of Final Hearing were filed with the Clerk of the Division of Administrative Hearings, on June 16, 2005.

Respondent requested and was granted an extension of time for filing its proposed recommended order. Respondent's Proposed Recommended Order was timely filed on July 29, 2005. Petitioner did not submit a Proposed Recommended Order.

FINDINGS OF FACT

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

1. Respondent is a public agency of the State of Florida.

   
   

   It has offices throughout Florida commensurate with its responsibilities.

2. Petitioner is a Caucasian male. He is a long-time employee of Respondent. By letter of July 1, 2003, Petitioner was dismissed from his position as a technician for insubordination and conduct unbecoming a public employee.

3. Petitioner did not offer any evidence of his actual age or that, other than his stated opinion, his age was the reason he was discharged. He did indicate that his age and experience

   were mentioned referable to his capacity to teach inexperienced employees and to perform his job.

4. Petitioner did not offer any evidence regarding a replacement for the position from which he was discharged or of any employee who was treated differently than he.

5. Petitioner did not offer any evidence of retaliation.

   
   

   He made a vague statement that he was the victim of retaliation, but did not offer any basis for his opinion.

6. Petitioner refused to complete work assignments in a timely manner. These assignments were appropriate for his job responsibilities.

7. When questioned by his supervisor regarding his failure to complete a particular job responsibility, Petitioner became defiant refusing to provide a written explanation; his angry response to the request included expletives. He then threatened a fellow employee who overheard the exchange between Petitioner and his supervisor.

8. Petitioner's immediate supervisor does not believe age had any bearing on Petitioner's discharge. In addition, he supervises two other employees, aged 53 and 63.

9. Petitioner's conduct violated the published Disciplinary Standards for State of Florida Employees.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.57 and 760.11, Fla. Stat. (2004).

11. In his Petition for Relief, Petitioner claims Respondent violated the Florida Civil Rights Act by discriminating against him based on his age and retaliating against him when it discharged him for insubordination and conduct unbecoming a public employee. No evidence was presented that Petitioner was a victim of retaliation. This claim is not further considered.

12. Subsection 760.10(1), Florida Statutes (2004), in relevant part, makes it an unlawful employment practice for Respondent to discriminate against Petitioner because of Petitioner's age. Chapter 760, Florida Statutes (2004), 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).

13. 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).

14. 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).

15. 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).

16. Petitioner appears to be a member of a protected class due to his age. While he did not offer actual evidence of his age, he appears to be over 40. He has suffered an adverse employment action; he was discharged. He has failed to present evidence that he received disparate treatment from other similarly situated individuals in a non-protected class. 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.

17. Therefore, Petitioner failed to present sufficient evidence to establish a prima facie case.

18. 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 his own poor job performance which led to his insubordinate response to appropriate inquiry and direction of a supervisor and, additionally, conduct that was clearly unbecoming a public employee.

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 9th day of August, 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 9th day of August, 2005.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

J. Ann Cowles, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Charles Bean

431 Buffalo Street

West Melbourne, Florida 32904

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: 05-000396

Orders for Case No: 05-000396