STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLETCHER SHELTON, )

)

Petitioner, )

)

vs. ) Case No. 85-2972

) PALMETTO PINE COUNTRY CLUB, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on February 27, 1986 in Fort Myers, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Fletcher Shelton (pro se)

2955 Dunbar Street

Fort Myers, Florida 33901

For Respondent: Karl L. Johnson, Esquire

P. O. Drawer 2199

Fort Myers, Florida 33902-2199

The issue for determination at the final hearing was whether the Respondent, Palmetto Pine Country Club, Inc., as employer of Petitioner, Fletcher Shelton, committed an unlawful employment practice by discriminating against Petitioner on the basis of age.

PROCEDURAL BACKGROUND

On February 2, 1984, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations alleging that Respondent committed an unlawful employment practice by terminating Petitioner's employment on the basis of age. On June 14, 1985, the Florida Commission on Human

Relations rendered its proposed notice of determination that there was reasonable cause to believe that an unlawful employment practice had occurred. By petition filed with the Division of Administrative Hearings on August 30, 1985, Petitioner requested an administrative hearing on his charge of age discrimination against Respondent, Palmetto Pine Country Club, Inc. This cause came on for final hearing on February 27, 1986.

At the final hearing, the Petitioner testified in his own behalf and presented no documentary evidence. The Respondent presented the testimony of two witnesses: Harold Williams, past vice-president of the board of directors for Respondent; and, Leroy Lanktree, a member of the board of directors for Respondent. In addition, Respondent's Exhibits 1-5 were duly offered and admitted into evidence.

FINDINGS OF FACT

Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:

1. Respondent, Palmetto Pine Country Club, Inc. is an employer within the meaning of the Human Rights Act of 1977.

   
   

2. Petitioner, Fletcher Shelton, was employed for approximately 11 years by Respondent as a lawn caretaker and tractor driver on the Club's golf course. On November 27, 1983, Petitioner was terminated from his position. The Petitioner's actual firing was handled by a foreman who approached him early in the week and told him that Friday would be his last day.

   When Petitioner asked the foreman why he was being terminated, the foreman replied: "you're too old."

   
   

3. The Petitioner was born on September 22, 1912, and was

   71 years old at the time of his termination. There was no evidence presented suggesting that Petitioner was unable to physically perform the requirements of his position, or that Respondent was in any way dissatisfied with Petitioner's performance.

   
   

4. In November of 1983, the board of directors of the Palmetto Pine Country Club adopted the following resolution, which is set forth below in its entirety:

   RESOLUTION

   ADOPTING MANDATORY RETIREMENT AGE

   
   

   After discussion and upon motion duly made, seconded, and unanimously carried, it was

   
   

   RESOLVED as follows:

   
   

   1. That the mandatory retirement age for employees of this Corporation is age seventy (70).

      
      

   2. Every employee of this Corporation, upon reaching his or her 70th birthday, shall be retired from employment by this Corporation, effective first pay period following 70th birthday.

      
      

   3. This Resolution shall be effective November 27, 1983.

      
      

   4. Employees of this Corporation who have attained the age of 70 or older shall be given a one-time retirement benefit equivalent to 90 days wages.

      
      

   5. All employees of this Corporation shall be furnished with a written statement of the mandatory retirement age established by this Resolution. The Corporate Secretary shall certify the statement as being a true and correct copy of the Resolution.

      
      

      I certify that this is a true and correct copy of the Resolution. FOR THE BOARD OF DIRECTORS:

      
      

      //signed//

      
      

      Glenn W. Taylor, Secretary

      
      

5. The resolution was adopted by the Board following a discussion which included the question of insurance coverage. The workmen's compensation insurance carrier "expressed concerns" about accident prevention, particularly with employees who were "getting along in age." A Representative from the

   insurance company suggested that the Respondent consider a mandatory retirement system. However, there was no evidence that the carrier threatened to withdraw coverage or raise premiums if the suggestion was not followed.

   
   

6. The Petitioner was paid $3,505.50 in retirement and severance pay.

   
   

7. At the time of Petitioner's involuntary retirement, he was earning approximately $1,414.50 per month. The Petitioner suffered lost wages and earnings of approximately $21,217.50 up to the time of the final hearing.

   
   

8. The Petitioner earned approximately $3,240 at other employment between the time of his involuntary retirement and the final hearing.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The general purpose of the Human Rights Act of 1977 is "to secure 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 interests in personal dignity, to make available to the State 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)" Section 760.01(1), Florida Statutes. In addition, Section 760.01(3) provides that the operative provisions of the Human Rights Act of 1977 must be construed liberally to further the general purposes stated in the Act.

    
    

11. Section 760.10(1)(a), Florida Statutes-provides in part that:

    
    

    "(1) It is an unlawful employment practice for an employer:

    
    

    (a) To discharge or fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to

    compensation, terms, conditions, or privileges of employment, because of said individuals. . . age."

    
    

    The Petitioner has established by the preponderance of the evidence that he was wrongfully discharged solely on the basis of his age. The Petitioner had been employed by Respondent for approximately 11 years prior to his mandatory retirement and Respondent did not dispute Petitioner's ability to perform the physical requirements of the position. The resolution adopted by the Board of Directors of Palmetto Pine Country Club established a blanket policy of mandatory retirement for all employees at the age of 70. There was no mention whatsoever of the employee's ability to perform the requirements of the job.

    A mandatory retirement policy based solely on age is contrary to the Human Rights Act of 1977 and flies directly into the face of one of the stated purposes of the Act to make available to the State the full productive capacities of all citizens.

    
    

12. Chapter 760, Florida Statutes, allows for an employer to establish a bona fide seniority system, a bona fide employee benefit plan such as a retirement, pension, or insurance plan, or a system which measures earnings by quantity or quality of production. However, the Act expressly provides that: " . .

    .no such seniority system, employee benefit plan, or system which measures earnings shall excuse the involuntary retirement of, any individual on the basis of any factor not related to the ability of such person to perform the particular employment for which such individual has applied or in which such individual is engaged." Section 760.10(8)(b).

    
    

13. Perhaps the Respondent's mandatory retirement plan would pass muster under the federal law. Under the federal Age Discrimination in Employment Act, the minimum age at which private employees can be forced to retire is 70. However, the Florida act contains no upper or lower limit. It is well established that State age discrimination laws may sweep more broadly than the federal provisions. The federal Age Discrimination in Employment Act has been held not to preempt more protective State age discrimination statutes. Simpson v. Alaska State Commission for Human Rights, 608 F.2d 1171 (9th Cir. 1979). The Petitioner has shown a prima facie violation of the Human Rights Act of 1977, in that Respondent discriminated against him by terminating his employment on the basis of age. The Respondent has failed to articulate any legitimate, non-discriminatory reasons for terminating Petitioner's employment. Thus, the Petitioner has met his

    ultimate burden of proof and has established that Respondent unlawfully discriminated against him on the basis of age.

    
    

14. In Juvenile Diabetes Research Foundation v. Rievman,

370 So.2d 33 (Fla. 3rd DCA 1979), the court ruled that in an action for breach of a written contract of employment, when the employer breaches the contract, the employer will have damages payable under the contract reduced by the amount the employee received from other employment of a like nature subsequent to the breach of contract. It is the employer's burden to prove this amount. See also Timmy Woods Beverly Hills Ltd. v. Greenwald, 475 So.2d 256, (Fla. 3rd DCA 1985). It has been held that in actions under the federal Age Discrimination In Employment Act that the employer bears the burden of production and persuasion on the issue of set-off for wages earned from other employment. The protection against age discrimination found in the Florida Human Rights Act is sufficiently similar to the federal Age Discrimination in Employment Act that the Florida act should receive similar interpretation and application in the calculation of back pay. The Respondent is therefore entitled to receive $21,217.50 less $3,240 earned in other employment and less $3,505.50 received as retirement and severance pay.

RECOMMENDATIONS

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

RECOMMENDED that a Final Order be entered finding that the Respondent, Palmetto Pine Country Club, Inc., is guilty of a violation of Section 760.10, Florida Statutes; directing that Respondent cease its involuntary retirement system; and, further awarding the Petitioner lost wages in the amount of $14,272.

RECOMMENDED and ORDERED this 17th day of April, 1986, in Tallahassee, Florida.

W. MATTHEW STEVENSON, 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 l7th day of April, 1986.

COPIES FURNISHED:

Fletcher Shelton 2955 Dunbar Street

Fort Myers, Florida 33901

Karl L. Johnson, Esquire

P. O. Drawer 2199

Fort Myers, Florida 33902-2199

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 7

Tallahassee, Florida 32303

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303

Docket for Case No: 85-002972

Orders for Case No: 85-002972