STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK A. PRAUGHT, )

)

Petitioner, )

)

vs. )

) BELL SOUTH TELECOMMUNICATIONS, ) INC., )

)

Respondent. )

Case No. 05-2152

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on September 7, 2005, in Key West, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Florence Snyder Rivas.

APPEARANCES

For Petitioner: Mark A. Praught, pro se

1224 Rogers Lane

Cudjoe Key, Florida 33042-4324

For Respondent: Steven T. Breaux, Esquire

Ruth H. Fife, Esquire

BellSouth Corporation Legal Department 1155 Peachtree Street, Northeast Suite 1800

Atlanta, Georgia 30309

Valerie Shea, Esquire Gordon, Hargrove & James

2400 East Commercial Boulevard, Suite 1100 Fort Lauderdale, Florida 33308

STATEMENT OF THE ISSUE

Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).

PRELIMINARY STATEMENT

On August 16, 2002, Petitioner, Mark A. Praught (Petitioner), filed a complaint with the Florida Commission on Human Relations (FCHR). Petitioner alleged that Respondent Bellsouth Telecommunications, Inc. (Respondent) had discriminated against him on the basis of age, disability, and in retaliation for previous complaints he had made in 1998 and 1999 in another forum.

The allegations were investigated and on January 6, 2004, FCHR issued its determination of "no cause."

A Petition for Relief was filed by Petitioner on

February 10, 2004. FCHR transmitted the case to the Division of Administrative Hearings (Division) on February 12, 2004. The case was assigned to Administrative Law Judge Robert E. Meale under DOAH Case No. 04-0510, and was set for final hearing on April 2, 2004.

The final hearing did not go forward on that date; instead, four continuances were granted by Judge Meale to accommodate the parties' discovery and motion practice.

On May 16, 2005, Respondent filed its Motion to Dismiss or in the Alternative, for Summary Judgment, which Motion was directed to the timeliness, rather than the merits, of Petitioner's claims.

Petitioner filed an Opposition to Respondent's Motion to Dismiss or in the Alternative, for Summary Judgment on May 23, 2005. The following day, Respondent filed its Reply in Support of Respondent's Motion to Dismiss or, in the Alternative, for Summary Judgment.

Upon consideration, Judge Meale determined that "[t]he pleadings reveal indisputably that Respondent fired Petitioner on August 15, 2001, and that Petitioner filed his complaint with the [FCHR] on August 16, 2002--366 days after his termination.

Section 760.11 (1), Florida Statutes (2001), provides that a person claiming to have been the subject of unlawful discrimination must file a complaint with the [FCHR] within 365 days of the alleged violation." Accordingly, Judge Meale entered an Order Granting Motion to Dismiss and Relinquishing Jurisdiction dated May 26, 2005.

By Order Remanding Petition for Relief From an Unlawful Employment Practice (Remand Order) dated June 7, 2005, FCHR advised the parties that "upon receipt of the Order [Granting Motion to Dismiss and Relinquishing Jurisdiction dated May 26, 2005], the [FCHR] Clerk initiated a thorough search of the

investigative file and found, misplaced," the original complaint form which demonstrated that Petitioner had, in fact, filed his complaint within 365 days of his termination of employment.

The Remand Order was transmitted to the Division and on June 14, 2005, Judge Meale entered an Order Reopening File. Thereafter, the case proceeded under DOAH Case No. 05-2152. The case was transferred to the undersigned on or about August 12, 2005.

At hearing, Petitioner testified on his own behalf. Respondent presented the testimony of David Fulton, David McCarty, Robert Arce, and Andy Spalding.

A transcript of the proceedings has not been provided, and the parties declined the opportunity to submit proposed recommended orders.

FINDINGS OF FACT

1. Petitioner, a Caucasian male, was born on March 23, 1949. At the time of the alleged unlawful employment practice at issue in this case, Petitioner was 52-53 years old.

2. Petitioner was employed by Respondent since 1973. He was terminated effective August 15, 2001.

3. Respondent, at all times material to this case, is an employer within the meaning of the Florida Civil Rights Act.

4. Respondent, at all relevant times, is in the business of providing telephone services to individuals and businesses in south Florida and elsewhere.

5. At all relevant times, Petitioner was employed as a Service Technician. Service Technicians are responsible to install and repair telephone equipment in response to customer requests.

6. At all relevant times, Respondent employs individuals as Service Technicians who are older than Petitioner. Many other individuals employed as Service Technicians are over the age of 40 at all times relevant to this case.

7. Beginning in 1997, Respondent began to evaluate its Service Technicians according to a system called "Integrated Technicians Performance Plan [ITP].”

8. The purpose of ITP was to improve customer service by evaluating Service Technicians and the individuals who manage them, on a regional basis, in accordance with standardized performance measures.

9. Service Technicians whose ITP evaluations revealed deficiencies, including Petitioner, were provided assistance pursuant to individualized Technician Development Plans (TDP) and given a reasonable period of time to improve.

10. From the time ITP was implemented in 1997, Petitioner was at all relevant times on a TDP because of deficiencies in

    his job performance. Petitioner's job performance was consistently deficient from 1997 throughout the remainder of his employment.

11. From 1997 throughout the remainder of his employment Petitioner was provided assistance to help him improve his performance.

12. Despite the assistance provided, Petitioner failed to improve his job performance to minimum levels required of all Service Technicians and required by his TDP.

13. By August 2001, supervisors responsible for the training, evaluation and supervision of Service Technicians had determined that Petitioner did not maintain his job performance at the minimum levels required of Service Technicians and did not fulfill the requirements of his TDP. Accordingly, Respondent terminated Petitioner’s employment.

14. Petitioner could have been terminated earlier than he was. In consideration of the fact that Petitioner had been a long-time employee of the company, he was given more time to improve his performance than company policy required.

15. Petitioner presented no persuasive evidence that age played any role in Petitioner's termination. Petitioner did not prove that after he was terminated, a younger worker replaced him.

16. Similarly, Petitioner presented no persuasive evidence that he is disabled within the meaning of the Florida Civil Rights Act, or that any disability played any role in his termination. Petitioner alleged his disabilities as “war wounds, tinnitus and hearing loss.” Petitioner never informed Respondent that he suffered from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act.

17. Furthermore, Petitioner never informed Respondent that the disabilities alleged would in any way prevent him from performing his job as a Service Technician, or from satisfying the TDP developed to assist in ameliorating his performance deficiencies. Petitioner never informed Respondent that the alleged disabilities substantially impacted any major life function, or affected Petitioner’s ability to perform the essential functions of his Service Technician job. Respondent was not, at relevant times, on notice that Petitioner might suffer from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Respondent never perceived Petitioner to be disabled at times relevant to this case. During his employment as a Service Technician, Petitioner did not indicate a need for or make any

    request to Respondent for accommodations for any physical condition.

18. Finally, Petitioner alleged that his termination was in retaliation for complaints he had filed in another forum. This allegation was not proved; rather, the evidence established that Petitioner never opposed any practice which is an unlawful employment practice under the Florida Civil Rights Act. In sum, the evidence established that Respondent discharged Petitioner solely on account of inadequate job performance as a Service Technician, and not on account of his age, disability, or in retaliation for complaints filed in another forum.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005).

20. The Florida Civil Rights Act, among other things, forbids the discriminatory firing of an employee.

21. Subsection 760.10(1)(a), Florida Statutes (2001),

    
    

    states:

    
    

    1. It is an unlawful employment practice for an employer:

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex,

    national origin, age, handicap, or marital status.

    
    

22. Respondent is an "employer" as defined in Subsection 760.02(7), Florida Statutes (2001), which provides:

    (7) "Employer" means any person employing

    15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.

    
    

23. Subsection 760.10(7), Florida Statutes (2001), provides, in relevant part:

    (7) It is an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

    
    

24. FCHR and Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of the Act. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994). Accordingly, the United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), applies to claims arising under the Act. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

25. Under the McDonnell Douglas analysis, Petitioner has the burden of establishing by a preponderance of evidence a prima facie case of unlawful employment discrimination. If the prima facie case is established, the burden shifts to Respondent employer to rebut this preliminary showing by producing evidence that the adverse action was taken for some legitimate, non- discriminatory reason. If the employer rebuts the prima facie case, the burden shifts back to Petitioner to show by a preponderance of evidence that Respondent's articulated reasons for its adverse employment decision were pretextual. See Texas

    Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

26. The unlawful employment practice alleged in this case is discrimination based on age and on disability.

27. In order to prove a prima facie case of discrimination based on age and disability, Petitioner must prove that he was "(1) a member of the protected class, [in this case], by virtue of his age or disability; (2) qualified to do the job; (3) subjected to adverse employment action; and (4) replaced by a person outside the protected class or suffered from disparate treatment because of membership in the protected class." See Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002); Williams v. Vitro Services Corporation, 144 F.3d 1438, 1441

    (11th Cir. 1998); Anderson v. Lykes Pasco Packing Co., 503 So. 2d 1269, 1270 (Fla. 2d DCA 1986).

28. With respect to age discrimination, Respondent did not dispute that Petitioner meets the first three elements of a prima facie case in that he was (1) a member of the protected class, by virtue of his age at relevant times; (2) qualified to do the job; and (3) subjected to adverse employment action.

29. However, in order to establish a prima facie case of age discrimination, Petitioner must establish the fourth element. That is, Petitioner must also prove that he was replaced by a person outside the protected class, or that he suffered disparate treatment because of membership in the protected class.

30. Petitioner presented no evidence that he was replaced by a person outside the protected class, i.e. a person less than

    40 years of age, or that he suffered disparate treatment because of membership in the protected class. Having failed to prove the fourth element, Petitioner did not establish a prima facie

    case of age discrimination.

    
    

31. Assuming arguendo that Petitioner had proved a prima facie case of age discrimination, Respondent established that Petitioner was terminated for inadequate job performance, in that he failed to perform his job at minimum levels required of

    all Service Technicians and to fulfill the requirements of his TDP over a period of years prior to his termination.

32. With respect to his claim of disability discrimination, Petitioner is again required to prove the four elements of a prima facie case set forth in paragraph 27.1

33. Petitioner did not prove the first element of a prima

    
    

    facie case, i.e. that he is a member of the protected class. Petitioner offered no evidence that he, in fact, has a disability or handicap. This failure of proof is fatal to his prima facie case of disability discrimination. Similarly, the evidence is insufficient to establish a prima facie case of discrimination based upon retaliation. The evidence falls short of establishing that Petitioner had opposed any practice which is an unlawful employment practice under the Act, or had made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under Section 760.10(7), Florida Statutes (2001). There is no persuasive evidence regarding the nature of the complaints Petitioner alleges he made in another forum in 1998 and 1999. This failure of proof is fatal to his claim of retaliation.

34. Even if Petitioner had established a prima facie case of unlawful employment discrimination based upon age, disability, or retaliation, Respondent presented evidence of

    legitimate, non-discriminatory reasons for terminating Petitioner, thereby rebutting any presumption of discrimination.

35. Petitioner failed to prove that Respondent's reasons for terminating his employment are pretextual. Rather, legitimate non-discriminatory business reasons for the actions taken against the Petitioner's employment status were proved by preponderant, persuasive evidence.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and argument of the parties, it is

RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief in its entirety.

DONE AND ENTERED this 11th day of October, 2005, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 11th day of October, 2005.

ENDNOTE

1/ With respect to claims of disability discrimination, courts have looked to the Americans With Disabilities Act (ADA), 42

U.S.C. Section 12101, et seq., as well as related regulations and judicial decisions. Chanda v. Engelhard/ICC, 234 F.3d 1219 (11th Cir. 2000). The ADA defines a disability as a physical or mental impairment that substantially limits one or more of the major life activities of an individual, a record of such impairment or being regarded as having such an impairment.

42 U.S.C. Section 12102(2); Rossbach v. City of Miami, 371 F.3d 1354, 1357 (11th Cir. 2004).

COPIES FURNISHED:

Steven T. Breaux, Esquire Ruth H. Fife, Esquire

BellSouth Corporation Legal Department

1155 Peachtree Street, Northeast, Suite 1800

Atlanta, Georgia 30309

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

Tallahassee, Florida 32301

Mark A. Praught 1224 Rogers Lane

Cudjoe Key, Florida 33042-4324

Valerie Shea, Esquire Gordon, Hargrove & James

2400 East Commercial Boulevard, Suite 1100 Fort Lauderdale, Florida 33308

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: 05-002152

Orders for Case No: 05-002152