STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD M. SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1924

)

CITY OF DUNEDIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on September 6, 1984 at Clearwater, Florida.

APPEARANCES

For Petitioner: Peter Hooper, Esquire and

William Buztrey, Esquire 685 First Avenue North

St. Petersburg, Florida 33701

For Respondent: John G. Hubbard, Esquire and

Michael Hussey, Esquire 1059 Broadway

Dunedin, Florida 33520

By Petition for Relief filed with the Florida Commission on Human Relations, Edward M. Smith, Petitioner, requested a formal hearing to present evidence on his accusation that he had been subjected to unlawful discrimination by the City of Dunedin, Respondent, by reason of his age. This petition followed a Notice of Redetermination: No Cause filed by the Commission on April 13, 1984.

1. Prior to the hearing, Petitioner filed a motion for Protective Order without specifying what protection was desired. Grounds given for this motion was that Petitioner intended to file a discriminatory suit in Federal Court involving the same issues here involved and that such filing would deprive the Commission on Human Relations, and this Hearing Officer, of jurisdiction in this matter. This motion was denied as was an oral motion to stay these proceedings pending resolution of the Federal case. After being advised that a stay would reorganization combined the Fire and Police Departments into a Department of Public Safety.

   
   

2. As Director of Public Safety, Petitioner was a department head and not covered by civil service rules respecting tenure. All department heads serve at the pleasure of the City Manager. During the period Petitioner was employed by the City of Dunedin, he served under approximately eight City Mangers.

3. At the time of Petitioner's retirement, Parwaz Alam was City Manager. Prior thereto, Alam had worked for the City of Dunedin as Director of Public works and Engineering, the largest department of the City of Dunedin. As Director of Public Works, Alam served on a management committee, comprised of several department heads and the City Manager, whose function was to meet at frequent intervals to provide the City Manager with solutions to city problems. As City Manager, Alam replaced Richard Gehring, who resigned to go into private business.

   
   

4. Gehring had discussed retirement with Petitioner while Gehring was City Manager. Gehring was not satisfied with Petitioner's performance as Director of Public Safety. on October 7, 1980, in the Employee Performance Appraisal for the period July 26, 1979 through July 26, 1950 (Exhibit 6) , Gehring pointed out Petitioner resisted adopting new ideas and changes, that he was not receptive to new work assignments, and that his supervision of the Fire Department resulted in the Fire Department being treated as a stepchild supervised by the Police Department. Petitioner told Gehring he would like to stay on one more year before retiring.

   
   

5. Alam became City Manager in July, 1982. He had known Petitioner since 1974 when Alam first started to work for the City. Alam was aware of the evaluation Petitioner had been given by Gehring. After becoming City Manger, Alam was dissatisfied with Petitioner's performance as Director of Public Safety in that he felt Petitioner did not devote enough time to the job: that Petitioner devoted too much time to his outside activities involving various police-related organizations both statewise and national; that he could not contact Petitioner on numerous occasions when Petitioner was in town and no one knew where he was; that on these occasions he had to obtain the information he desired from one of the captains who was next in command in the Police or Fire Department; and that information he passed to Petitioner was not disseminated to the Department.

   
   

6. As the City Manager, Alam decided to terminate Petitioner's employment. Two other non-civil service protected employees, both below 40 years of age, were also terminated by Alam. To accomplish this objective, Alam had his first meeting to discuss retirement with Petitioner on November 23, 1982. At this meeting, they discussed Petitioner's performance on a broad level without specific details and Alam suggested that Petitioner should retire. At this time, Petitioner had worked for the City of Dunedin for 15 years, had vested pension rights with the City, and was eligible for social security benefits. Petitioner demurred on the retirement.

   
   

7. The second meeting occurred December 7, 1982 at which time Alam advised Petitioner that he expected to receive a formal retirement request from Petitioner. When Petitioner again demurred, Alam told Petitioner that if he did not voluntarily retire, he would be terminated with two weeks notice. When asked by Petitioner if age had anything to do with his retirement, Alam stated only insofar as it affected Petitioner's ability to draw retired pay under the Florida Retirement System and social security benefits. During this meeting, Petitioner negotiated with Alam to remain on the payroll as long as possible and Alam agreed to allow Petitioner to stay until July 1, 1983 and to attend the Police Chief's Convention in California in early 1983. As testified to by Petitioner, he "negotiated the best deal possible."

   
   

8. The third meeting between these parties occurred on December 10, 1982 at which time Alam presented Petitioner with two letters (Exhibit 1 and Exhibit 2). Exhibit 1 was an unsigned Memo from Petitioner to Alam voluntarily

   retiring. Exhibit 2 was an unsigned Termination of Employment notice to Petitioner from Alam. Petitioner was given a couple of days to elect which form of termination he desired. On December 13, 1982, Petitioner returned Exhibit 1 to Alam with the handwritten addition, "This is not a voluntary retirement.

   Smith remained as Director of Public Safety until July 1, 1953 at which time he as placed in a retired status.

   
   

9. At the time Petitioner was forced to retire, Respondent had several employees older than Petitioner, although none of them were in non-civil service covered jobs. Petitioner was replaced as Director of Public Safety by the Police Captain who has served with the City for 20 years and is in his mid- fifties. The new Director of Public Safety has the same duties that Petitioner had, but he reorganized the Police and Fire Department slightly. Smith's retirement resulted in a savings to the City of Dunedin of approximately $40,000 per year, most of which came from reduced travel expenses.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. The issue to be resolved here is similar to that involved in an alleged discrimination in hiring in that the applicant may be rejected for any reason except one prohibited by law. Petitioner was not covered by civil service protection and could be discharged by the City Manager for any reason except one prohibited by law.

    
    

12. Section 112.043(3), Florida Statutes, provides in pertinent part

    
    

    1. Except as provided in paragraph (f), it is unlawful for an employer to:

1. Fail or refuse to hire, discharge or mandatorily retire, or otherwise discriminate against any individual with respect to the compensation, terms, conditions or privileges of employment because of age.

(f) It is not unlawful for an employer...to:

1. Take any action otherwise prohibited under (a), (b), (c), or (e), based on a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.

3. Discharge or otherwise discipline an individual for good cause.

This position is similar to Title VII of the Civil Rights Act of 1964, 42

1. 2000e et seq. The federal courts have provided guidelines in Title VII cases which are applicable here.

   
   

   First, the Petitioner has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. McDonnell Douglas Corp. v.

   Green, 411 US 792, 93 S. Ct. 1817, 37 L. Ed. 2d 668 (1973). McDonnell held the plaintiff can establish a prima facie case by showing:

   
   

   1. that he belongs to a racial minority;

   2. that he applied and was qualified for a job for which the employer was seeking

      applicants;

   3. that, despite his qualifications, he was rejected; and

   4. that, after his rejection, the position remained open and the employer continued to seek applicants and persons of complainant's qualifications. Id. at 411 US 802.

In Texas Department of Community Affairs v. Burdine, 450 US 248, 254, 101

S. Ct. 1089, 1094, 67 L.Ed. 2d 207 (1981), the Court stated:

The plaintiff must prove by a preponderance of the evidence that she applied for an

available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. The prima facie case serves an important function in the litigation: It eliminates the most

common nondiscriminatory reasons for the plain tiff's rejection (citations omitted)...the prima facie case "raises an inference of discrimina tion only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors."

The only evidence presented in this case regarding the age of Petitioner came from Petitioner himself, who asked the City Manager several times if he was being forced to retire because of his age. Each time, the City Manager told him, "no." the City Manager did acknowledge that Petitioner's age, which allowed him to draw retirement benefits from the Florida Retirement System and from social security, was considered as a mitigating factor in that these retirement systems would provide Petitioner with sufficient income in retirement to survive, even if it would not permit the life-style he had enjoyed while Director of Public Safety.

In some cases involving sex discrimination, the courts have found discrimination by reason of disparate treatment between sexes. Sprogis v. United Airlines, Inc., 444 F.2d 1994, 199S (7th Circ. 1974) found disparate treatment in a rule which required stewardesses to be single but did not require male employees to be single. Braunstein v. Dwelling Managers, Inc., 476 F.Supp. 1323 (SD N.Y. 1979) found no disparate treatment between sexes where a single parent with a child of the same sex was restricted to the rental of a one- bedroom unit, while a single parent with a child of the opposite sex was permitted to rent a two-bedroom unit. United States v. Reece, 457 F.Supp. 43 (DC Mont. 1978) found disparate treatment between sexes and, therefore, discrimination, in an apartment complex' policy of not renting apartments to single women without cars but renting to single men without cars.

School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981) applied these federal decisions to the Florida discrimination statute.

Petitioner was not the only department head terminated by Alam when he became City Manager. One other department head, under forty years of age, was also terminated as was another City employee in a non-civil service protected position. He, too, was under forty. This indicates no disparate treatment by reason of age.

From the foregoing, it is concluded that Petitioner has failed to show the circumstances surrounding his removal as Director of Public Safety gave rise to an inference that his removal was because of his age. To the contrary, the evidence submitted by Petitioner clearly shows that his performance as Director of Public Safety was not satisfactory to Parwaz Alam, the newly appointed City Manager, and that Petitioner was given the option of resigning or being fired; and he opted for the former after negotiating the best deal he could. It is concluded that Petitioner has failed to establish a prima facie case of age discrimination and any burden that Respondent would otherwise have, as satisfied during the presentation of Petitioner's case.

It is

RECOMMENDED that a Final Order be entered dismissing the complaint of Edward M. Smith that he was unlawfully discriminated against by the City of Dunedin because of his age.

Entered this 27th day of September, 1984, in Tallahassee, Florida.

COPIES FURNISHED:

Peter Hooper and

William Buztrey, Esquires 685 First Avenue North

St. Petersburg, Fl. 33701

John G. Hubbard and Michael Hussey, Esquires 1059 Broadway

Dunedin, Fl. 33528

Suzanne Oltman, Clerk Commission on Human Relations

325 John Knox Road, Bldg. Tallahassee, Fl. 32303

Donald Griffin Executive Director

Commission on Human Relations

325 John Knox Road, Bldg. F Tallahassee, Fl. 32303

1. N. AYERS Hearing Officer

   Division of Administrative Hearings The Oakland Building

   2009 Apalachee Parkway

   Tallahassee, Florida 32301

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1984.

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

   
   

   EDWARD M. SMITH,

   
   

   Petitioner, EEOC Case No. 046833799

   1. FCHR Case No. 83-2232

      DOAH Case No. 84-1924

      CITY OF DUNEDIN, FCHR Order No. 85-0007

      
      

      Respondent.

      /

      
      

      ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

      EMPLOYMENT PRACTICE

      
      

      1. Panel of Commissioners

         
         

         The following three Commissioners participated in the disposition of this matter:

         
         

         Commissioner John J. Sulik, Panel Chairperson;

         Commissioner Willy A. Bermello; and Commissioner Learna Ramsey.

         
         

      2. Appearances For Respondent City of Dunedin:

         Anne Williams, Esquire Frazer and Hubbard, P.A. Post Office Box 1178 Dunedin, Florida 33528

         
         

         No appearance was entered at the Commission deliberation on behalf of Petitioner.

         
         

      3. Preliminary Matters

         
         

         Edward M. Smith, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, alleging that City of Dunedin, Respondent herein, unlawfully discriminated against Petitioner on the basis of his age, by discharging him from its employ.

         In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On February 14, 1984, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice had occurred in violation of the Human Rights Act of 1977. On March 6, 1984, Petitioner requested redetermination and on April 13, 1984, the request was denied.

         Thereafter, on May 16, 1984, the Petitioner filed a Petition for Relief from an Unlawful Employment Practice.

         
         

         The petition was referred to the Division of Administrative Hearings for the conduct of a formal proceeding pursuant to Florida Administrative Code Rule 22T-8.16(1). The formal proceeding was held on September 6, 1984, in Clearwater, Florida, before K. N. Ayers, Division of Administrative Hearings Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on September 27, 1984.

         
         

         No exceptions were filed to the Recommended Order. Petitioner filed a Notion to Abate Hearing Officer's Recommended Order.

         
         

         Pursuant to notice, deliberations were held on January 19, 1985, in Tallahassee, Florida, before the aforementioned Panel of Commissioners. After oral argument was presented by counsel for the Respondent, the Panel conducted its deliberation of this matter and determined the action to be taken upon the petition.

         
         

      4. Preliminary Rulings

         
         

         Counsel for Petitioner filed a Motion to Abate Hearing Officer's Recommended Order, stating in support thereof that Petitioner filed a Complaint in the United States District Court, Middle District of Florida, on August 30, 1984. The Complaint alleges a violation of 29 U.S.C. Section 626(b) of the Age Discrimination in Employment Act. Counsel requests this Commission to abate any action on the Hearing Officer's Recommended Order on the basis of comity and judicial deference.

         
         

         The motion is denied. In Poole v. Wakulla Springs Lodge, 4 FALR 1794-A (FCRR 6/24/84), this Commission held that it would be divested of jurisdiction only when a collateral civil action is based upon a Human Rights Act of 1977 violation. In this case, the federal action is based upon the Age Discrimination in Employment Act. Accordingly, the Commission is not divested of jurisdiction in this case because the action commenced in civil court does not allege a violation of the Human Rights Act of 1977. Cf. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461 (1975)(where the Court stated that "the remedies available under Title VII and under Section 1981, although related, and although directed to most of the same ends, are separate, distinct, and independent.").

         
         

         Moreover, we do not believe it wise policy to abate final agency action in a matter upon notice that a Petitioner recently filed a collateral federal action, involving similar factual matters. Section 120.59, Fla. Stat. (1983). Absent consent from all parties or a court order, administrative actions should be resolved without undue delay. 1/

      5. Findings of Fact

         
         

         Having considered the Recommended Order, and being particularly mindful of the record in this proceeding, the Panel finds that the Hearing Officer's findings of fact are supported by competent substantial evidence. The Hearing Officer's findings of fact are hereby adopted.

         
         

      6. Conclusions of Law

         
         

         The Hearing Officer's ultimate conclusion of law is supported by his findings. The Hearing Officer's ultimate conclusion of law is hereby adopted. The Panel, however, rejects of his application of law to fact. The Hearing Officer opined:

         
         

         . . .it is concluded that Petitioner has failed to show the circumstances surrounding his removal as Director of Public Safety gave rise to an inference that his removal was because of his age. To the contrary, the evidence submitted by Petitioner clearly shows that his performance as Director of Public Safety was not satisfactory to Parwaz Alan, the newly appointed City Manager, and that Petitioner was given the option of resigning or being fired; and he opted for the former after negotiating the best deal he could. It is concluded that Petitioner failed to establish a prima facie case of age discrimination and any burden that Respondent would otherwise have, was satisfied during the presentation of Petitioner's case.

         
         

         In Wilson v. Kraftco Corp., 8 FEP Cases 749, 750 (5th Cir. 1974), the Fifth Circuit Court of Appeals set forth the following guidelines for reviewing a prima facie case under the Age Discrimination in Employment Act:

         
         

         We agree with the Appellee that there are certain factual dissimilarities between McDonnell and the present case. We do not, however, find it necessary to rely solely upon McDonnell precedent in order to determine that the Appellant presented sufficient evidence to prohibit the District Court from directing a verdict against him. We simply state that in the particular procedural framework within which this case is presented, a showing that the Appellant was within a protected class, was asked to take early, retirement against his will, was doing apparently satisfactory work, and was replaced by a younger person, will not permit dismissal at such an early stage in the trial proceeding. A minimum showing of these analogous McDonnell factors justifies some explanation on the part of the employer.

         
         

         (Emphasis supplied, footnote omitted.)

         In this case, Petitioner made a minimum showing that: (i) he was 65 years of age on the date the alleged discriminatory act occurred; (ii) he was asked to take early retirement against his will; (iii) he was apparently doing satisfactory work based upon his most recent written performance rating of satisfactory; and (iv) he was replaced by a younger person.

         
         

         Moreover, whenever the evidence reveals, as it does here, that the employer raised the issue of retirement with the employee in the context of a termination decision, there is an indication that an unlawful employment practice has occurred. Additionally, Respondent admitted that Petitioner's fifteen years of service with the City, his ability to retire and the cost savings with replacing him with a City employee were factors that were considered in making the discharge decision. These factors are also indications that an unlawful employment practice occurred.

         
         

         Inasmuch as Petitioner presented a prima facie case of employment discrimination, it was error for the Hearing Officer to grant Respondent's motion for a directed verdict. 2/ Such error was, however, harmless in that Respondent articulated legitimate, nondiscriminatory reasons for the adverse employment action during the presentation and before the closing of Petitioner's case and Petitioner did not show that Respondent's articulated reasons were pretextual. Stated another way, Petitioner did not establish by a preponderance of the evidence that Respondent discriminated against him on the basis of age in violation of Section 760.16, Florida Statutes (1983).

         
         

      7. Dismissal

The Hearing Officer's recommendation is adopted. His Recommended Order is incorporated herein by reference. Accordingly, the Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are hereby DISMISSED with prejudice.

Petitioner is advised of his right to petition the Florida District Court of Appeal for review of this Order within 30 days of the date that this Order is filed with the Clerk of the Commission. Section 120.68, Fla. Stat. (1983); Fla. R. App. P. 9.110(b).

It is so ORDERED.

DATED this 7th day of March, 1985.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner John J. Sulik, Panel Chairperson;

Commissioner Willy A. Bermello; and Commissioner Learna Ramsey.

FILED this 14th day of March , 1985, in Tallahassee, Florida.

BY:

Clerk of the Commission

ENDNOTES

1/ Had Petitioner desired to voluntarily withdraw his petition prior to the entry of a final order, he could have done 50. Fla. Admin. Code Rule 22T- 9.08(9).

2/ The Hearing Officer entered his Recommended Order after Petitioner had tested his case.

COPIES FURNISHED:

Peter D. Hooper, Attorney for Petitioner(C.M.# p 579 390 517) Anne Williams, Attorney for Respondent(C.M.# p 579 390 518) Aurelio Durana, Legal Advisor for Commission Panel.

Honorable K. N. Ayers, DOAH Hearing Officer.

Docket for Case No: 84-001924

Orders for Case No: 84-001924