STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EARL TYLER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1878

) LEHIGH ACRES GENERAL HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 13, 1981, in Fort Myers, Florida.

The following appearances were entered: William E. Adams, Jr., Esquire, Fort Myers, Florida, appeared on behalf of the Petitioner, Earl Tyler; and R. J. Castellanos, Esquire, Fort Myers, Florida, appeared on behalf of the Respondent, Lehigh Acres General Hospital.

In his Petition for Relief from an Unlawful Employment Practice filed with the Florida Commission on Human Relations, Petitioner alleged that Respondent had discriminated against him on the basis of his age by failing to rehire him in a position he had previously held. After that Petition was transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations, the Commission was named as a party in this proceeding since it is the entity responsible for final agency action. Thereafter, the Commission's Motion to Drop Agency as Party was granted. At the hearing in this cause, the Commission not only failed to enter an appearance, but also failed to make any arrangements to preserve the testimony as required by Section 120.57(1)(b)6, Florida Statutes.

Petitioner testified on his own behalf and presented the testimony of Dale

1. Learn. The Respondent presented the testimony of Beverly J. Calkins, Joseph Feith, and Dale J. Learn. Further, Petitioner's Exhibit 1 and Respondent's Exhibit 1 were received in evidence.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, Earl R. Tyler, was born on October 9, 1915.

      
      

   2. Petitioner was employed by the Respondent as a storekeeper from approximately March of 1977 until April of 1978, at which time he voluntarily terminated his employment with Respondent in order to become a real estate salesman. Prior to his leaving the hospital, Petitioner had received no reprimands or complaints from his supervisors at the hospital regarding his work as a storekeeper.

   3. In September of 1978, Petitioner filed an application for employment in a clerical position at the hospital. On or about October 15, 1978, Petitioner received a letter from the hospital advising him that there was an opening in the clerical field and requesting him to contact the personnel office regarding that position. Although Petitioner was not employed at the time, he believed the open position to be on the night shift and, accordingly, he never contacted the hospital regarding that position.

      
      

   4. Dale J. Learn, the Materials Manager at Lehigh Acres General Hospital, had become good friends with Petitioner during the time that Petitioner worked at the hospital, and he also knew Petitioner's wife, who was working at the hospital. In February, 1979, Learn told Petitioner's wife to have Petitioner come to the hospital to talk to Learn about an expected vacancy in the storekeeper position. Petitioner complied, and he and Learn met in the hospital cafeteria and discussed the expected vacancy and the potential for Petitioner being rehired in that position. The storekeeper position was within the department of which Learn was the head, and Learn was currently restructuring both his department and the storekeeper position. At the time that he met with Petitioner in the hospital cafeteria, the storekeeper position was not yet available and had not been publicized. Petitioner expressed his interest in being rehired as the storekeeper, and Learn advised Petitioner that the position as envisioned would require no heavy lifting by the Petitioner since Learn also intended to hire a younger man to do the heavy lifting. Petitioner made no response to Learn's statements regarding the necessity or desirability of Petitioner engaging in heavy lifting.

      
      

   5. Several weeks after the meeting between Petitioner and Learn in the hospital cafeteria, Petitioner saw an advertisement in a Fort Myers newspaper wherein the hospital was advertising for the position of storekeeper/medical supplies. Since Petitioner had heard nothing from Learn subsequent to their meeting, Petitioner telephoned Joseph Feith to express his interest in the position. Feith advised Petitioner that the department managers had authority to make decisions regarding hiring of personnel, subject to the approval of Feith, who was the Executive Director of the hospital. Feith, accordingly, advised Petitioner to contact Learn.

      
      

   6. Petitioner telephoned Learn but was unable to reach Learn at that time. After several days, Learn returned Petitioner's telephone call. During that conversation, Learn suggested that Petitioner should be relaxing and enjoying life and playing golf, but that he would do all he could to assist Petitioner in obtaining a clerical position at the hospital. Petitioner made no response to Learn's comments regarding taking life easy and made no further contact with anyone at the hospital regarding employment as a storekeeper.

      
      

   7. Learn hired a man in his early thirties for the storekeeper's position. The decision to hire that applicant and to not hire Petitioner was made solely by Learn. Learn's decision was based upon the successful applicant's better qualifications, more recent work experience, and Learn's hope that that applicant would be more likely to remain in the position for a long term.

      
      

   8. The reorganization of his department by Learn had caused a large expansion in the inventory for which the storekeeper was responsible. Additionally, between the time that Petitioner left his employment with the hospital as its storekeeper and the time of the hearing in this cause, the position of storekeeper was held by three people instead of one, also indicating a substantial change in procedures regarding the position in question. At the

      time of the hearing, the storekeeper position was occupied by two men and one woman ranging in ages from the late thirties through the mid-fifties.

      
      

   9. Petitioner has no knowledge of any instances wherein Lehigh Acres General Hospital has discriminated against persons because of their age. The hospital does have a policy of nondiscrimination. During the times in question, the hospital employed approximately fifteen to twenty persons the approximate same age as the Petitioner. Further, at the time of the hearing in this cause, Feith, the Executive Director of the hospital, was fifty-eight years old, and Learn, the department manager, was fifty-four years old.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57, Florida Statutes (1979).

       
       

   11. Florida's Human Rights Act of 1977 prohibits an employer from refusing to hire an individual because of such individual's age. Section 23.167(1)(a), Florida Statutes (1979). In the case at bar Petitioner has failed to prove that Respondent's failure to rehire him in the storekeeper's position was based upon Petitioner's age. Clearly, the successful applicant's qualifications were at least equal to Petitioner's qualifications and were, in fact, superior to Petitioner's. Accordingly, the only basis for Petitioner's claim are the statements of Learn to Petitioner that Petitioner would not have to be concerned about heavy lifting since a younger man would also be hired to perform those duties and that Petitioner might be desirous of spending more of his time relaxing and/or playing golf. Although such statements might support an inference of discriminatory motive on the part of an employer in an appropriate situation, the facts surrounding those statements in the case at bar do not support that inference. Learn, who was admittedly a good friend of the Petitioner, was solely responsible for the decision not to hire Petitioner. It must be remembered that Learn solicited Petitioner's application for the position in question. This fact is clearly indicative of a lack of discriminatory motive, and the record is devoid of any evidence indicating that Learn changed his motives during the time period material hereto. Further, the record fails to indicate when the decision to hire another applicant and not petitioner was made in order to place the comments regarding playing golf into the proper time context. Despite the lack of evidence on that point, however, it is reasonable to infer that Learn's comments that Petitioner should be enjoying life more arose simply from Learn's lack of desire to tell his good friend that he had decided not to employ him. This inference is buttressed by Petitioner's testimony that Learn offered to assist Petitioner in any way he could to help him to obtain a different position at the hospital.

       
       

   12. Likewise, Learn's testimony that he desired to hire someone interested in long-term employment is insufficient to support an inference of discriminatory motive. It must be remembered that Petitioner was employed by the Respondent as its storekeeper for approximately one year when Petitioner resigned in order to pursue a new career as a real estate salesman. Within a few months of that resignation, Petitioner had changed his mind regarding that career choice and had submitted an application to the Respondent for employment in the area of general office work. A few weeks later, Respondent contacted him regarding an available clerical position, but Petitioner had failed to even respond when the hospital advised him of the opening. It is as reasonable to infer that Learn based his prediction of which applicant was more likely to remain in the position for a long term upon Petitioner's history of short-term employment than upon Petitioner's age. This is especially true in view of the

fact that Respondent did employ other persons the approximate same age as Petitioner and that the two persons who could make the decision to hire Petitioner were also close to Petitioner's own age. Accordingly, Petitioner has failed to meet his burden to show that Respondent's decision not to hire him was, in fact, based upon his age.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a final order be entered by the Florida Commission on Human Relations declaring that Earl R. Tyler was not discriminated against on the basis of his age and dismissing his Petition for Relief with prejudice.

RECOMMENDED this 22 day of July, 1981, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1981.

COPIES FURNISHED:

William E. Adams, Jr., Esquire Florida Rural Legal Services 1617 Hendry Street, Third Floor Fort Myers, Florida 33901

R. J. Castellanos, Esquire Kushner & Castellanos

Post Office Box 1999

Fort Myers, Florida 33902

Mr. Norman A. Jackson Executive Director Florida Commission on

Human Relations

2562 Executive Center Circle, East Tallahassee, Florida 32301

Docket for Case No: 80-001878

Orders for Case No: 80-001878