STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

This case came before Administrative Law Judge June C. McKinney of the Division of Administrative Hearings for final hearing on October 9, 2009, in Miami, Florida.

APPEARANCES

For Petitioner: Pauline Lombardi, pro se

248 Florida Avenue Miami, Florida 33166

For Respondent: Kathleen M. Savor, Esquire

Valerie J. Martin, Esquire Office of the Attorney General

110 Southeast 6th Street, 10th Floor Fort Lauderdale, Florida 33331

STATEMENT OF THE ISSUE

The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.

PRELIMINARY STATEMENT

In an Unlawful Employment Practice Complaint filed on or about May 27, 2009, and subsequently investigated by the Florida Commission on Human Relations (hereinafter "Commission") Pauline Lombardi (hereinafter "Lombardi" or "Petitioner") charged that the Dade County Circuit Court (hereinafter "Dade County" or "Respondent") unlawfully discriminated against Petitioner by terminating her employment because of her age.

The Commission investigated Petitioner's claim and on May 13, 2009, issued a Notice of Determination: No Cause setting forth its determination that reasonable cause did not exist to believe that an unlawful employment practice had occurred. Thereafter, Petitioner filed a Petition for Relief, which the Commission sent to the Division of Administrative Hearings (hereinafter "DOAH") on June 17, 2009.

At the final hearing, Lombardi testified on her own behalf and Petitioner's Exhibits 1 through 10 were offered and admitted in evidence. Respondent presented three witnesses: Sandria Garcia, Maria Suarez, and Roger Silver. Respondent offered Exhibits 1 through 7 and the seven exhibits were received into evidence. On October 28, 2009, the Transcript of the proceeding was filed with the DOAH. Both parties filed timely Proposed Recommended Orders, which have been duly-considered.

On November 16, 2009, Petitioner submitted an Employee Earning Statement and Estimate of Retirement Benefit Form. The undersigned has not considered the aforementioned submissions in this matter because the documents were provided after the hearing closed.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2009 Florida Statutes.

FINDINGS OF FACTS

1. Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1

2. Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge.

3. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position.

4. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go.

5. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go.

6. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008.

7. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation.

8. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket.

9. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances."

10. Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded.

11. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant.

12. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him.

13. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008.

14. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement.

15. Petitioner's date of birth is May 18, 1948.

    CONCLUSIONS OF LAW

    
    

16. The DOAH has jurisdiction over the subject matter of the proceeding and of the parties pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2009).

17. The Florida Civil Rights Act of 1992 (Florida Act) is codified in Sections 760.01 thorough 760.11, Florida Statutes, and Section 509.092, Florida Statutes. § 760.01(1), Fla. Stat.

18. A "discriminatory practice," as defined in the Florida Act, "means any practice made unlawful by the Florida Civil Rights Act of 1992." § 760.02(4), Fla. Stat.

19. Section 760.01 of the Florida Act explains that the general purpose of the Act is to:

    . . . [S]ecure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the sate their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state." (Emphasis added.)

    
    

20. Section 760.10, Florida Statutes, provides, in relevant part:

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

       1. To discharge or to fail or refuse to hire an 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.

          
          

21. The Federal Act that is analogous to Florida's Act is entitled the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.S. Section 623, and it provides, in pertinent part:

    § 623. Prohibition of age discrimination

    1. Employer practices. It shall be unlawful for an employer--

       1. to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. . . .

    
    

22. To prevail in her proceeding under either ADEA or the Florida Act, a petitioner in an age discrimination case has the initial burden of proving a prima facie case of unfair employment action within the framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). Once the prima facie case is established, then the burden to go forward with evidence shifts to the respondent to show a legitimate, non- discriminatory reason for the employment action in question. If the respondent articulates such a reason, the burden to go forward shifts back to the petitioner to show by a preponderance of the evidence that the reason offered by the respondent is

    pre-textual and that its true reason is indeed discrimination. Id. at 801.

23. In order for Petitioner to establish a prima facie case of discrimination in violation of either of the Acts2 under the above-referenced burden-shifting analysis, Petitioner must prove (1) she is a member of a protected age class; (2) that she was subjected to an adverse employment action; (3) that she was qualified for the job; and (4) that she was replaced by a younger individual. See Williams v. Vitro Services Corporation, 144 F.3d 1438 (11th Cir. 1998).

24. Petitioner made a prima facie case showing that due to her age, she is member of a protected class and that she suffered an adverse employment action--she was discharged. The record also demonstrates that Lombardi had held a judicial assistant position since 1971, and was at least adequately qualified to do the job from which she was terminated.

25. Petitioner has also established that she was replaced in her position, from which she was terminated, by a person substantially younger, Gonzalez, which complies with the five- year age difference threshold referenced in the opinion in Damon

    v Fleming Supermarkets of Fla. Inc., 196 F.3d 1354, 1360 (11th Cir. 1999). Gonzalez is 16 years younger than Lombardi. Thus, the Petitioner has established a prima facie case concerning age discrimination.

26. Even though the Petitioner has demonstrated a prima facie case in this matter, Respondent has articulated a legitimate, non discriminatory reason for the termination. Respondent's evidence established that Lombardi was terminated because her work was unsatisfactory in that she took lunch breaks beyond the one hour Silver had discussed with her; had numerous complaints from attorneys; sold Avon at the work place; did not answer the phones and allowed calls to go to voicemail; and repeatedly set unnecessary hearings on the docket. Respondent also demonstrated that Silver was so dissatisfied with Lombardi's work that he chose to terminate her and go without an assistant knowing that there was a hiring freeze.

27. 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. See Damon at 1361.

28. 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 a discriminatory reason, rather than the proffered reasons, more likely motivated the adverse employment action.

29. Based on the Finding of Facts herein and a consideration of the totality of circumstances, although the Petitioner demonstrated a prima facie case for age discrimination, the evidence brought forward by Respondent of legitimate non-discriminatory reasons for terminating Lombardi for poor work performance has not been overcome by persuasive evidence showing that those reasons were a pretext for what really amounted to age discrimination.

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 dismissing Petitioner's Petition for Relief.

DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2009.

ENDNOTES

1/ Pursuant to the Florida State Courts System policy, Judicial Assistants serve as personal staff to their individual judicial officer and are subject to their individual officer's plenary authority over the employment relationship--including all hiring, supervisory, and firing decisions.

2/ For ease of reference, the Florida Civil Rights Act of 1992 will be referred to as the Florida Act and the Age Discrimination in Employment Act of 1967 will be referred to as ADEA. Collectively, they will be referred to as the Acts.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Pauline Lombardi

248 Florida Avenue Miami, Florida 33166

Kathleen M. Savor, Esquire Valerie J. Martin, Esquire Office of the Attorney General

110 Southeast 6th Street, 10th Floor Fort Lauderdale, Florida 33331

Larry Kranert, 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 the Recommended Order. Any exceptions to the Recommended Order should be filed with the agency that will issue the Final Order in the case.

Docket for Case No: 09-003225

Orders for Case No: 09-003225