STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEITH M. WOODS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1501

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on December 13, 1977, in the Conference Room of the Florida Real Estate Commission, 717 Ponce de Leon Boulevard, Coral Gables, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was heard on a petition filed by Keith M. Woods alleging that he had been discriminated against on the basis of age by the Department of Health and Rehabilitative Services. This case was referred by the Department of Health and Rehabilitative Services to the Division of Administrative Hearings to conduct formal hearing on the petition pursuant to Section 120.57(1), Florida Statutes, to determine if Woods had been discriminated against.

APPEARANCES

For Petitioner: Frank G. Lawson, Esquire

244 Hal Bay Drive

Bal Harbour, Florida 33154

and

Julia M. Giller, Esquire 1177 Kane Concourse

Miami Beach, Florida 33154

For Respondent: James G. Mahorner, Esquire

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301 FINDINGS OF FACT

1. Keith Woods was an employee of the Department of Health and Rehabilitative Services. He was notified on March 22, 1976, that he would be terminated effective August 5, 1976, pursuant to the provisions of Section 112.051, Florida Statutes. See Exhibit 3, letter to Kenneth Woods from William Hahn, advising of the termination. On August 5, 1976, Keith Woods had been employed for over ten (10) years with the Department of Health and Rehabilitative Services and was eligible for retirement benefits.

2. On August 5, 1976, after the intervention of a local mayor, the Department of Health and Rehabilitative Services agreed to extend Keith Woods' employment until he had reached the age of seventy (70). Keith Woods agreed to resign voluntarily on January 4, 1977, his seventieth birthday. Keith Woods ceased work for the Department of Health and Rehabilitative Services on that date.

   
   

3. The Legislature of Florida amended Section 112.051, Florida Statutes, to delete the mandatory retirement provisions. This enactment was to take effect on October 1, 1976. Prior to that date, the provisions of Section

   112.051 were operative and applicable to Keith Woods. Under the provision of 112.051, prior to its amendment, the Department of Health and Rehabilitative Services had the right to retire Keith Woods until the effective date of the amendment. Under that law, they could only extend his employment until age seventy (70).

   
   

4. In their agreement, Keith Woods and the Agency each gave up certain legal rights. The Department gave up the legal right to terminate Keith Woods prior to October 1, 1976, and Woods gave up any rights he might acquire by virtue of his employment subsequent to that date, having voluntarily agreed to resign on January 4, 1977. Their agreement constituted a valid contract.

   
   

   CONCLUSIONS OF LAW

   
   

5. Keith Woods has brought this petition on the basis of discrimination pursuant to provisions of Section 112.043, Florida Statutes.

   
   

6. The provisions of Section 112.051, Florida Statutes, as written on August 5, 1976, permitted the Agency to terminate any employee who was over the age of sixty-five (65) and who qualified for State retirement benefits.

   
   

7. Keith Woods had worked for the State for over ten (10) years, was eligible for retirement benefits and was over the age of sixty-five on August 5, 1976. The Department of Health and Rehabilitative Services had the legal right to discharge Woods and could retain him no longer than his seventieth birthday. The Department of Health and Rehabilitative Services notified Keith Woods of its intention to terminate him on August 5, 1976, prior to the effective date of the amendment of Section 112.051.

   
   

8. Woods argues that he was unaware of this amendment and, therefore, should be permitted to take advantage of the amendment and not resign. However, this is not the issue. The issue is whether the Department of Health and Rehabilitative Services had the legal right to terminate Woods on August 5, 1976. Clearly, the Department of Health and Rehabilitative Services had that right and bargained with Woods to forego it in exchange for his promise to resign voluntarily at age seventy (70). Woods agreed to this, and did cease to work on his seventieth birthday. There was a contract based upon mutual promises and both parties gave up certain legal rights. The Department of Health and Rehabilitative Services gave up its right to immediately terminate and Keith Woods gave up any right he might acquire subsequently to remain employed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that HRS did not discriminate against Keith Woods on the

basis of age, but exercised its legal rights under the then applicable statute. Therefore, this petition should be dismissed.

DONE and ORDERED this 11th day of January, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Frank C. Lawson, Esquire

244 Bal Bay Drive

Bay Harbour, Florida 33154

James G. Mahorner, Esquire 1323 Winewood Boulevard

Tallahassee, Florida 32301

Julia M. Giller, Esquire 1177 Kane Concourse

Miami Beach, Florida 33154

Docket for Case No: 77-001501

Orders for Case No: 77-001501