vs.
Respondent.
) Case No. 10-2437
A hearing was held pursuant to notice, on July 8 and October 7, 2010, in Pensacola, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.
For Respondent: Jeremy C. Branning, Esquire
Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on November 2, 2009.
On or about November 2, 2009, Petitioner, Robert Piotrowski, filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (FCHR), which alleged that Daws Manufacturing Company violated section 760.10, Florida Statutes, by terminating his employment and harassing him on the basis of age, gender, and perceived disability.
The allegations were investigated and on March 30, 2010, FCHR issued its Determination: No Cause. A Petition for Relief was filed by Petitioner on May 3, 2010.
FCHR transmitted the case to the Division of Administrative Hearings on or about May 5, 2010. A Notice of Hearing was issued setting the case for formal hearing on July 8, 2010. At the commencement of the hearing, Petitioner made an ore tenus motion for continuance. The undersigned found that good cause was shown for the motion, and the hearing was adjourned and rescheduled for October 7, 2010. The hearing proceeded as scheduled.
At hearing, Petitioner testified on his own behalf and presented the testimony of James Nowak, Harold Clinton Daws, and Dorothy Davis. Petitioner's Exhibit numbered 1 was admitted into evidence. Petitioner's Exhibits numbered 2 and 3 were proffered. Respondent presented the testimony of James Nowak,
Harold Clinton Daws, and Violeta Gordon. Respondent’s Exhibits numbered 1 through 6 were admitted into evidence.
Respondent filed a Motion for Extension of time in which to file proposed recommended orders. The motion was granted. A one-volume Transcript was filed on November 23, 2010.
Petitioner filed a post-hearing written submission and Respondent filed a Proposed Recommended Order, which have been considered in the preparation of this Recommended Order.
Petitioner is 74-year-old male who was employed by Respondent as Human Resources Director from July 1994 until January 30, 2009. His job was an office job that required him to sit at a desk, attend meetings, and occasionally visit people in other parts of the plant to discuss business.
Respondent, Daws Manufacturing Company (Daws), is an employer within the meaning of the Florida Civil Rights Act.
Daws is a Florida corporation with its principal office in Pensacola, Florida. Daws is a manufacturer that builds aluminum toolboxes for trucks, and other truck accessories.
James Nowak is Daws' Vice President and Chief Financial Officer. According to Mr. Nowak, a decision to cut overhead was made in the summer of 2008, as a result of three years of significant economic losses. The decision was made to close the manufacturing component of its Pensacola facility so that the
company could survive. To accomplish this, Daws implemented a reduction in force which involved two layoffs in 2008.
As Human Resources Director, Petitioner played a significant role in the layoff process. Mr. Nowak described Petitioner's role as "orchestrating" the layoffs, meaning that Petitioner was the person "who managed it, who disseminated the information, and who was at the center point of getting the project completed."
Harold Clinton "Clint" Daws is Respondent's President and Chief Executive Officer. While Petitioner and Mr. Nowak played significant roles in the reduction in force process,
Mr. Daws was ultimately responsible for deciding which employees were to be laid off.
Forty-seven employees were laid off in August 2008.
Thirty-one employees were laid off on December 5, 2008. Only six employees remained in the Pensacola plant following the December 2008 layoff.
Petitioner was one of the employees slated to be laid off in December 2008. However, Petitioner suffered a heart attack in mid-November 2008 and underwent open heart surgery. This happened prior to the December 2008 layoff. Because of Petitioner's medical situation, Mr. Daws agreed that Petitioner would not be laid off as scheduled in December 2008, but could remain employed through January 2009. Petitioner was the only
employee scheduled to be laid off in December 2008 whose termination was deferred.
Petitioner returned to work on January 19, 2009, and was scheduled to be laid off January 30, 2009, the last working day of that month. He requested to stay on longer than scheduled, but that request was denied by Mr. Daws. Petitioner remained covered under the company's health insurance through January. From January 19 through his last day of employment, Petitioner spent time cleaning his office and tending to other matters.
During January 2009, Petitioner underwent cardiac rehabilitation. He left the office for a couple of hours during the work day to participate in his rehabilitation. This was handled the same as for any employee who had to go to a medical appointment. However, Petitioner did not request any accommodation regarding any disability during this time. Petitioner acknowledged at hearing that he never made a complaint of discrimination to Mr. Daws based on his age, gender, or perceived disability.
Before leaving on his last day of employment, Petitioner wrote a letter to Workforce Escarosa, a local agency that handles unemployment claims, advising that he was "laid off today due to a reduction in force-job elimination." He again made this assertion to Workforce Escarosa in a February 27, 2009
letter in which he reiterated that he was "laid off due to a reduction in force, job elimination, and I am not to be considered a retiree."
Upon termination, Petitioner was offered and accepted insurance under COBRA. The COBRA coverage was later rescinded by the insurance company, not by Daws, apparently because it discovered Petitioner was on Medicare and was not eligible. Mr. Nowak never discussed Petitioner's medical expenses from his heart attack or previous medical problems with the company's insurance agent or the company's president.
Following Petitioner's termination from employment, the position of Human Resources Director was eliminated as part of its reduction in force.
The remaining duties of the Human Resources Director position were apportioned between Mr. Nowak and Ms. Violeta Gordon, Petitioner's assistant. Daws did not hire anyone to serve as the Human Resources Director.
At hearing, Petitioner alleged that he was discriminated against earlier in his employment. Specifically, he asserted that he did not receive a pay raise from 1995 until 2002 and that he was asked in 2006 when he was going to retire. While Mr. Daws testified as to legitimate, non-discriminatory reasons for Petitioner not receiving a pay raise and denied asking Petitioner when he was going to retire or encouraging him
to retire, these allegations are untimely as will be more fully addressed in the Conclusions of Law.
At the time of his layoff, Petitioner was 72.
Petitioner alleged in his Employment Complaint of Discrimination that his assistant, Ms. Gordon, was 65. There is nothing in the record to indicate otherwise and, based upon observations of her while testifying at hearing, 65 is a reasonable approximation of her age.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.
§§ 120.569 and 120.57, Fla. Stat. (2010).
Section 760.10(1), Florida Statutes (2009),1/ states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of age, gender, or handicap.
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 Valenzuela v. GlobeGround North America, LLC, 18 So. 3d 17 (Fla. 3d DCA 2009); Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).
In the instant case, Petitioner alleged in his Charge of Discrimination which he filed with FCHR that he was laid off and harassed by Daws because of his age, sex, and "perceived disability" when it terminated his employment.
Discriminatory intent can be established through direct or circumstantial evidence. Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999). Direct evidence of discrimination is evidence that, if believed, establishes the existence of discriminatory intent behind an employment decision without inference or presumption. Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).
"Direct evidence is composed of 'only the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor." Schoenfeld v. Babbitt, supra. Petitioner presented no competent direct evidence of age, gender, or disability discrimination.
"[D]irect evidence of intent is often unavailable." Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to be victims of intentional discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997).
Where a complainant attempts to prove intentional discrimination using circumstantial evidence, the shifting burden analysis established by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248
(1981), is applied. Under this well established model of proof, the complainant bears the initial burden of establishing a prima facie case of discrimination. 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 employment action. See Dep't of Corr. 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. Id.; Alexander v. Fulton
Cnty., Georgia, 207 F.3d 1303 (11th Cir. 2000). The employee must then come forward with specific evidence demonstrating that the reasons given by the employer are a pretext for discrimination. Schoenfeld v. Babbitt, supra at 1267. 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. Dep't of Corr.
v. Chandler, supra at 1186; Alexander v. Fulton Cnty., Georgia, supra. Petitioner has not met this burden.
"Although the intermediate burdens of production shift back and forth, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the [Petitioner] remains at all times with the [Petitioner]." EEOC
v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002); see also Byrd v. RT Foods, Inc., 948 So. 2d 921, 927 (Fla. 4th DCA 2007) ("The ultimate burden of proving intentional discrimination against the plaintiff remains with the plaintiff at all times.").
Age Discrimination
To establish a prima facie case of age discrimination under the federal Age Discrimination in Employment Act (ADEA), the complainant must show that he is (1) a member of a protected age group (i.e., over 40); (2) he was subject to an adverse employment action; (3) he was qualified for the job; and (4) he was replaced by a younger person. Benson v. Tocco, Inc., 113 F.3d 1203, 1207 (11th Cir. 1997), citing McDonnell, supra (the 11th Circuit has adopted a variation of the McDonnell test in ADEA violation claims.)
However, in cases alleging age discrimination under section 760.10(1)(a), FCHR has concluded that unlike cases brought under ADEA, the age of 40 has no significance in the
interpretation of the Florida Civil Rights Act of 1992. FCHR has determined that to demonstrate the last element of a prima facie case of age discrimination under Florida Law, it is sufficient for Petitioner to show that he was treated less favorably than similarly-situated individuals of a "different" age as opposed to a "younger" age. See Marchinko v. The
Wittemann Co., Inc., DOAH Case No. 05-2062 (Fla. DOAH Nov. 1, 2005), rejected in part, Case No. 2005-00251 (FCHR Jan. 6, 2006), and numerous cases cited therein.
As to the first element of proving a prima facie case of age discrimination, Petitioner is, and was at the time of his termination of employment from Respondent, a member of a protected age group for purposes of ADEA. As to the second element, Petitioner was subject to adverse employment action when he was laid off. As to the third element, while minimum qualifications for the job are not clear from the record, there is nothing to indicate that Petitioner was not qualified for the job. Thus, Petitioner meets the first three elements of a prima facie case.
However, no one was hired to replace Petitioner, much less from a "different" age group. Petitioner maintains that his assistant, Ms. Gordon, replaced him. The preponderance of the evidence establishes otherwise. After the second round of layoffs, there were simply not enough employees in the Pensacola
facility to warrant a human resources director. Moreover, for federal law purposes, Ms. Gordon is of the same protected class of persons. For Florida law purposes, while not of an identical age, Ms. Gordon was certainly of the same age group as Petitioner. Finally, Ms. Gordon was an administrative assistant, and, therefore, not similarly situated for purposes of this analysis. Accordingly, Petitioner failed to meet the fourth prong of a prima facie case of age discrimination.
Assuming that Petitioner had established a prima facie case of age discrimination, Respondent articulated a legitimate, non-discriminatory explanation of the adverse employment action. The decision to lay off employees through a reduction in force was a business decision based on economics. Petitioner was included in the persons laid off because his job was eliminated.
Applying the McDonnell analysis outlined above, the burden then shifts to Petitioner to show that a discriminatory reason more likely than not motivated the decision or that the proffered reason for the employment decision is not worthy of belief. Dep't of Corr. v. Chandler, supra, Alexander v. Fulton Cnty, GA, supra. "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,
286 F.3d 1270 (11th Cir. 2002). Petitioner has not met this burden.
Gender Discrimination
To establish a prima facie case of gender discrimination, Petitioner must demonstrate similar elements to those previously discussed regarding age discrimination: that he is a member of a protected class; that he is qualified to do his job; that the employee suffered an adverse employment action; and that his employer treated similarly-situated employees outside of his protected class more favorably than it treated him. McDonnell, supra.
Petitioner is a male and therefore a member of a protected class.2/ He was hired and retained for several years and is, therefore, presumed to be qualified for the job. He suffered an adverse employment action when he was laid off. As to the fourth prong of the analysis, however, there is no evidence that Respondent treated women more favorably than Petitioner in the layoff process. No one was hired to fill the position vacated by Petitioner. Respondent eliminated Petitioner's position. While his assistant, Ms. Gordon, remained employed, it was not in the capacity of Human Resources Director. Moreover, Mr. Nowak assumed some of the responsibilities, which were presumably reduced due to the vast majority of employees no longer working at the Pensacola facility. Thus, Petitioner did not present a prima facie case of gender discrimination.
Even if Petitioner had established a prima facie case, Respondent presented a legitimate, non-discriminatory reason for Petitioner's layoff. Petitioner did not present evidence that the reasons given by Respondent were a pretext for gender discrimination. Other than Petitioner's conclusory assertion that Ms. Gordon replaced him, Petitioner offered no evidence of gender discrimination.
Perceived Disability Discrimination
Petitioner alleged in his Employment Complaint of Discrimination that he was discriminated against because of a perceived disability.
The Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. §§ 12101-12213, prohibits discrimination against persons with disabilities in employment and other facets of life, such as public accommodations. Federal case law interpreting the ADA applies to claims of disability-based discrimination arising under the Florida Civil Rights Act. See Fromm-Vane v. Lawnwood Med. Ctr., Inc., 995 F. Supp. 1471, 1475 fn. 4 (S.D. Fla. 1997). The term "handicap" in the Florida Civil Rights Act is treated as equivalent to the term "disability" in the ADA. See Ross v.
Jim Adams Ford, Inc., 871 So. 2d 312 (Fla. 2d DCA 2004).
To establish a prima facie case of disability discrimination, Petitioner must prove by a preponderance of the evidence that he is a handicapped person within the meaning of
subsection 760.10(1)(a) that he is a qualified individual; and that Respondent discriminated against him on the basis of his disability. See Earl v. Mervyns, 207 F.3d 1361, 1365 (11th Cir. 2000); Pritchard v. S. Co. Servs., 92 F.3d 1130 (11th Cir.
1996); and Byrd v. BT Foods, Inc., 948 So. 2d 921 (Fla. 4th DCA 2007).
The ADA defines a "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment."
42 U.S.C. § 12102(1). "Major life activities" include, but are not limited to, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630(2)(i). In light of Petitioner's allegation that he was discriminated against because of a "perceived disability," it is presumed that he is relying on (C), in that he asserts that he was regarded as having an impairment that limits one or more of the major life activities.
Petitioner acknowledged that he did not request any accommodation regarding a disability or complain that he was unable to perform his job due to any limitation on his physical capability when he returned to work in January 2009. The witnesses were aware that he had been out of the office due to a heart attack, but none of them testified that he or she
perceived him to be disabled or that he was limited in his ability to work as Human Resources Director.
Petitioner was recuperating from a heart attack and heart surgery when he returned to the office on January 19, 2009. The record is not entirely clear, however, that he meets the definition of handicapped under section 760.10(1)(a). Assuming that he does, the preponderance of the evidence does not support a conclusion that his employer perceived him to have a physical impairment that substantially limited his ability to complete his assignments as Human Resources Director.
The decision to proceed with a reduction in force was made well in advance of his heart attack in November 2008. Although Petitioner had medical problems prior to that date, no action was taken to terminate his employment until the company made the business decision to lay off most of the Pensacola employees.
As concluded above, Respondent presented a legitimate non-discriminatory reason for its action in terminating Petitioner's employment. There is no competent evidence to support Petitioner's assertions that terminating him was a pretext for unlawful discrimination. See Issenbergh v. Knight- Ridder Newspaper Sales, Inc., 97 F.3d 436, 444 (11th Cir. 1996) ("Conclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext or intentional
discrimination where [a defendant] has offered extensive evidence of legitimate, non-discriminatory reasons for its actions.")(quoting Young v. General Food Corp., 840 F.2d 825, 830 (11th Cir. 1988) ("Once a legitimate, non-discriminatory reason for dismissal is put forth by the employer, the burden returns to the plaintiff to prove by significant probative evidence that the proffered reason is pretext for discrimination."). Other than Petitioner's vague assertions that Mr. Daws asked him about retirement some time ago, Petitioner presented no evidence establishing that Respondent's reasons were pretextual. Petitioner's speculation and personal belief concerning the motives of Respondent are not sufficient to establish intentional discrimination. See Lizardo v.
Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001) ("plaintiffs have done little more than to cite to their mistreatment and ask the court to conclude it must have been related to their race. This is not sufficient."). While Petitioner believes that Respondent's actions were intentionally discriminatory, the evidence does not support this conclusion. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) ("Byers has failed to produce any direct evidence of discriminatory intent by Brown or TDMN or sufficient evidence indirectly demonstrating discriminatory intent. Instead, Byers urges this Court to rely on his subjective belief that Brown discriminated
against him because he was white. This Court will not do so."). The evidence contains no persuasive proof to support a finding that Respondent's actions were motivated by Petitioner's age, gender, or perceived disability.
Petitioner was laid off due to a business decision.
There is no evidence that Daws manipulated the reduction in force for the purpose of discriminating against Petitioner because of his age, gender, or perceived disability. See Dep't of Corr. v. Chandler, supra at 1187, quoting Nix v. WLCY
Radio/Rahall Commuc'ns, 738 F.2d 1181, 1187 (11th Cir. 1984) ("The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.").
In summary, Petitioner has failed to carry his burden of proof that Respondent's actions were based on intentional discrimination on the basis of age, gender, or disability.
Timeliness
As referenced in paragraph 15 above, Petitioner asserts that he did not receive a pay raise from 1995 until 2002. While Mr. Daws provided legitimate, non-discriminatory reasons for Petitioner not receiving a pay raise, these claims are time barred pursuant to section 760.11(1), which requires that a complaint be filed with the commission within 365 days of
the alleged violation. Case law is clear that recovery for pay differentials prior to the limitations period is barred, and the continuing violation doctrine is not applied. See LeBlanc v.
City of Tallahassee, 2003 U.S. Dist. LEXIS 16140; 16 Fla. L. Weekly Fed. D 192 (N.D. Fla. 2003), citing AMTRAK v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 106 (2002) (each pay
increase was a discrete act that gave rise to a separate disparate pay claim).
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That the Florida Commission on Human Relations enter a final order finding that Daws Manufacturing Company is not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's Charge of Discrimination.
DONE AND ENTERED this 7th day of January, 2011, in Tallahassee, Leon County, Florida.
BARBARA J. STAROS
Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2011.
1/ All future references to Florida Statutes will be to 2009.
2/ Although gender discrimination cases are generally brought by females, the Florida Civil Rights Act simply prohibits employment discrimination on the basis of sex.
Jeremy C. Branning, Esquire Clark, Partington, Hart,
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
