STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA MARCHINKO,

Petitioner,

vs.

THE WITTEMAN COMPANY, LLC,

Respondent.

)

)

)

)

) Case No. 05-2062

)

)

)

)

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on August 24, 2005, in Bunnell, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Linda Marchinko, pro se

30 Westmount Lane

Palm Coast, Florida 32164

For Respondent: Matthew S. Welch, Esquire

Rice & Rose

222 Seabreeze Boulevard Daytona Beach, Florida 32118

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on November 17, 2004.

PRELIMINARY STATEMENT

On November 17, 2004, Petitioner, Linda Marchinko, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) which alleged that The Witteman Company violated Section 760.10, Florida Statutes, by discriminating against her on the basis of age.

The allegations were investigated and on May 3, 2005, FCHR issued its determination of "no cause" and Notice of Determination: No Cause.

A Petition of Relief was filed by Petitioner on May 31, 2005. FCHR transmitted the case to the Division of Administrative Hearings (Division) on or about June 7, 2005. A Notice of Hearing was issued setting the case for formal hearing on August 24, 2005.

At hearing, Petitioner testified on her own behalf and presented the testimony of Clifford Martin. Petitioner's Exhibit numbered 1 was admitted into evidence. Respondent presented the testimony of Cara Brammer and William Geiger. Respondent offered Exhibits numbered 1 through 9, which were admitted into evidence.

A transcript consisting of one volume was filed on September 6, 2005. Petitioner filed a post-hearing submission. Respondent filed Proposed Findings of Fact and a Proposed Order.

Both filings were timely and have been considered in the preparation of this Recommended Order.1/

FINDINGS OF FACT

1. Petitioner, Linda Marchinko, was employed by the Witteman Company, Inc., from 1966 until April 2003. The Witteman Company, Inc. (hereinafter "Inc.") was a division of the Dover Corporation. While employed by Inc., Petitioner held the position of traffic manager.

2. The most recent description of the duties of the position of traffic manager reads as follows:

   Responsible for, but not limited to, traffic managerial duties, coordinate and arrange for all product shipments, required documentation, customer interaction, and providing back-up support as required to others within the Company. Work with minimum supervision, produce quality, complete and accurate work and be an active and positive participant on teams and committees to which assigned.

   
   

3. In February 2003, Cryogenic Industries made an asset purchase of Inc. and established Witteman, LLC (hereinafter LLC). LLC engineers and sells carbon dioxide, recovery, and production equipment to soft drink and brewing companies. Whereas Inc. had a maximum of 110 employees, LLC was established with only 17 employees, as many departments such as purchasing, traffic, and accounting were eliminated or "farmed out."

4. At the time of the asset purchase, all employees of Inc. were terminated due to the sale of the assets of Inc.

5. Petitioner was terminated from employment with Inc. effective April 8, 2003. She signed a Severance Agreement and Waiver and Release of Claims, releasing Inc. from all claims, including any related to the Age Discrimination and Employment

   Act.

   
   

6. The position of traffic manager has not and does not

   
   

   exist at LLC.

   
   

7. Petitioner was not hired by LLC. Petitioner has never been employed by LLC and, therefore, was not terminated by LLC.

8. A few employees of Inc. were hired by LLC. Petitioner was not one of them.

9. Cara Brammer is one of the employees of Inc. who was hired by LLC. Her position is Comptroller.

10. Petitioner contends that regardless of Ms. Brammer's title, Ms. Brammer performs the same functions that Petitioner used to perform for Inc. Petitioner believes that Ms. Brammer was hired by LLC because she is younger than Petitioner. At the time Ms. Brammer was hired by LLC, she was approximately 39 years old and Petitioner was 55 years old.

11. Ms. Brammer's duties as Comptroller include accounts payable, cost accounting, and general ledger work. According to Ms. Brammer, the traffic manager duties previously performed by

    Petitioner were separated between two of LLC's sister companies in California, which handle all of the major equipment, including manufacturing and shipping for LLC.

12. William Geiger is General Manager of LLC. According to Mr. Geiger, the manufacturing of the product was shifted to two divisions located in California. The primary shipping of the company's product was also shifted to California. This is consistent with Ms. Brammer's testimony.

13. According to Ms. Brammer, a small portion of the shipping duties that had initially been sent to California are now handled by LLC. She estimates that she spends only four to five hours a week on these traffic duties, that Mr. Geiger handles some of these duties, and that "quite a bit" of these traffic duties have been farmed out to a company called Freight Forwarder.

14. LLC employs people in their thirties, forties, fifties, and sixties.

15. There is no competent evidence that LLC used age as a criterion in its determination of who would and who would not be hired for the newly formed company.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569 and 120.57, Fla. Stat.

17. Section 760.10(1), Florida Statutes, states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of age.

18. In order to make out a prima facie case of age discrimination under Section 760.10(1)(a), Florida Statutes,2/ Petitioner must show that she was a member of a protected age group, that she was qualified for the job, that she was rejected, and that she lost the position to a younger person. Benson v. Tocco, Inc., 113 F.3d 1203, 1207 (11th Cir. 1997), citing McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973) (The 11th Circuit has adopted a variation of the McDonnell Douglass Corp. v. Green test in Age Discrimination in Employment Act violation claims.)

19. Arguably, Petitioner has met her burden of proving a prima facie case of age discrimination. She is, and was at the time of the employment decision at issue here, a member of a protected age group. While the minimum qualifications for the job are not clear from the record, there is nothing to indicate that she was not qualified for the job. Further, she was not fired because of poor job performance. Accordingly, she met the minimum requirements for the job satisfying the first prong of establishing a prima facie case. As to the second prong of establishing a prima facie case, Petitioner was not fired by LLC

    because she was never hired by LLC. However, Petitioner was subject to an adverse employment decision in that she was not hired for the job. Ms. Brammer, while 39 at the time she was hired by LLC, was just under the age protected under the law and, therefore, was not a member of a protected age group at the time she was hired. This satisfies the third prong of establishing a prima facie case.

20. When the charging party, i.e., Petitioner, is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory explanation for the adverse employment action. Walker v. Prudential Property and Casualty Insurance Company, 286 F.3d 1270 (11th Cir. 2002); Department of Corrections v. Chandler,

    582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting burdens of proof in discrimination cases). The employer has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Department of Corrections v. Chandler, supra; Alexander v.

    Fulton County, GA, 207 F.3d 1303 (11th Cir. 2000).

    
    

21. Respondent has met its burden of production.

    
    

    Respondent has adequately articulated a legitimate, non- discriminatory explanation for its employment decision regarding Petitioner. First, LLC did not terminate Petitioner because she was never employed there. Secondly, Petitioner's job position

    was eliminated in the formation of LLC. As such, Respondent has asserted a legitimate, non-discriminatory reason for not employing Petitioner. The decision of LLC regarding Petitioner was based upon legitimate means and was not based upon Petitioner's age.

22. Petitioner failed to present sufficient evidence to contradict the evidence presented by Respondent that she was not hired by LLC because her position was simply not part of the newly formed company.

23. Once the employer articulates a legitimate non- discriminatory explanation for its actions, the burden shifts back to the charging party to show that the explanation given by the employer was a pretext for intentional discrimination. "Would the proffered evidence allow a reasonable factfinder to conclude that the articulated reason for the decision was not the real one?" Walker v. Prudential, supra. "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, 582 So. 2d 1183 at 1186; Alexander v. Fulton County, GA, supra. Petitioner has not met this burden.

24. Courts have found only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, to constitute direct evidence of age discrimination. See, e.g., Barnes v. Southwest Forest Industries, 814 F.2d 607 at 610 (11th Cir. 1987) (remark by personnel manager to terminated security guard that in order to transfer, "you would have to take another physical examination at your age, I don't believe you could pass it" was not considered direct evidence of age discrimination by the court); Williams v. General Motors Corp., 656 F.2d 120 at 130 (5th Cir. Unit B 1981) cert. denied,

    455 U.S. 943 (1982) (scrap of paper on which was written "Too old--Lay Off" would constitute direct evidence of discriminatory intent).

25. Other than Petitioner's assertions that Respondent discriminated against her, Petitioner presented no evidence establishing that Respondent's reasons were pretextual.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 1st day of November, 2005, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 November, 2005.

ENDNOTES

1/ Petitioner attached documents to her post-hearing submission which were not offered or admitted into evidence at hearing.

Accordingly, these documents, other than those introduced by Respondent and admitted into evidence at hearing, are not part of the record and cannot be considered by the undersigned in writing this Recommended Order. §.120.57(1)(f), Fla. Stat.

2/ FCHR and Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

COPIES FURNISHED:

Linda Marchinko

30 Westmount Lane

Palm Coast, Florida 32164

Matthew S. Welch, Esquire Rice & Rose

Post Office Box 2599

Daytona Beach, Florida 32115

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

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk 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: 05-002062

Orders for Case No: 05-002062