Judges: W. MATTHEW STEVENSON
Agency: Commissions
Latest Update: Aug. 18, 1986
Summary: Petitioner was terminated from his position solely on the basis of his age. Respondent was ordered to reinstate Petitioner to his former position and pay attorney's fees.
85-4240STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FRANK MAGGIO, )
)
Petitioner, )
)
vs. ) Case No. 85-4240
)
MARTIN MARIETTA AEROSPACE, )
)
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 May 12, 1986 in Orlando, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Joseph Egan, Jr., Esquire
Post Office Box 2231 Orlando, Florida 32802
For Respondent: Thomas C. Garwood, Jr., Esquire
57 West Pine Street, Suite 202 Orlando, Florida 32801
The issue for determination at the final hearing was whether the Respondent, Martin Marietta Aerospace-Orlando committed an unlawful employment practice by discriminating against Petitioner on the basis of age.
PROCEDURAL BACKGROUND
On August 24, 1984, Petitioner filed a complaint of discrimination with the Florida Commission on Human Relations alleging that Respondent committed an unlawful employment practice by terminating his 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 December 13, 1985, a formal hearing was requested on Petitioner's charge of discrimination.
This cause came on for final hearing on May 12, 1986 in Tampa, Florida. At the final hearing, Petitioner testified in his own behalf and called four witnesses. In addition, Petitioner's exhibits 1-4 were duly offered and admitted into evidence. Respondent called three witnesses and Respondent's exhibits 1-7 were duly offered and admitted into evidence. The Respondent submitted post-hearing proposed findings of fact. A ruling has been made on each proposed finding of fact in the appendix to this Recommended Order.
FINDINGS OF FACT
Martin Marietta Corporation is a multi-state, multi- national defense contractor. Respondent functions as one of its primary divisions/operations in Orlando, Florida.
The Petitioner, Frank Maggio was born on April 3, 1914. Petitioner was employed by Respondent on June 16, 1981 in the position of Quality Control Fabrication Inspector A (Fate A Inspector) at Respondent's Orlando facility.
Respondent's primary role within the overall corporate operation is the production of highly sophisticated, high-tech missile systems. The development and production of these weapons is maintained under tight security due to the involvement of the national defense effort. Because of Respondent's participation in military and defense programs, the manufacturing process is constantly reviewed and critically inspected by governmental agencies. The Respondent utilizes "state-of-the-art" machines and equipment on its advanced, technical and highly complex defense projects.
Petitioner's responsibilities as a Fab A Inspector included checking the first piece of hardware off of the machines, qualifying the tape that runs the machine with his stamp and checking the dimensions of the first layout. This procedure is referred to as a set-up and, once "bought off" "accepted) by the "A" inspector, it establishes the critical reference point or benchmark for the sophisticated, state-of- the-art-manufacturing processes of the Respondent.
Respondent's operations involve the manufacture or production of weaponry or weapons systems that require
tolerances The Petitioner was given a warning that another similar incident might result in further disciplinary action, up to and including discharge and specifications which are not found or even known in consumer oriented production plants.
Certain pieces of equipment used will drill and measure within one one-thousandth of an inch (1/1,000"). The integrity of the highly integrated and closely coordinated production procedures depends upon the correct initial setting, which "commits" the production process. If the initial setting is off or in error, nonconforming parts or items will be manufactured. If the nonconforming parts cannot be reworked or brought into tolerances, they are regarded as scrap and represent a loss to the company.
The Petitioner functioned as the only Fab A Inspector on the second shift with very little, if any, supervision. "B" and "C" Inspectors were present, but not performing in a capacity that could provide a backup for Petitioner.
In February, 1983, Petitioner functioned under the direct supervision of Charles Holley, Chief Quality Inspector. Although both men worked on the second shift, Petitioner performed as a Fab A inspector and was responsible for making the initial, critical decisions on "set-up" tapes for the second shift production operations.
On April 5, 1983, while on his second shift assignment, Petitioner "bought off" on a first piece inspection in order to qualify a newly released tape. On April 7, 1983, the first shift rejected a piece on that particular tape because the dimensions were out of tolerance. Subsequently, after a second inspection of the piece by the senior tool inspector, it was determined that the part was non-conforming and out of tolerance. This error lead to the production of approximately
180 pieces of "scrap" and a loss of about $100,000.
As a result of this incident, Mr. Holley, Petitioner's superior, completed a Significant Incident Report (S.I.R.) dated April 18, 1983, which was placed in Petitioner's personnel file. Pursuant to routine procedure, Petitioner was counseled about the S.I.R. and given an opportunity to respond. The Petitioner was given a warning that another similar incident might result in furhter disciplinary action, up to and including discharge.
Following the April, 1983 incident, Mr. Holley felt that Petitioner's work performance began to decline. Mr. Holley was dissatisfied because Petitioner often used scales for measurements at times when Mr. Holley believed that calipers should have been used. In addition, Petitioner used his lunch break to take naps, and several times he was late returning to work.
Sometime in late September or early October, the Petitioner approved a piece of hardware similar to that involved in the April, 1983 incident and it too was rejected for being out of tolerance. Following this incident, Mr. Holley once again went to the Personnel and Industrial Relations Department (S.I.R.) attempting to have another S.I.R. placed in Petitioner's file. However, the management in P.I.R. did not allow the report to be placed in Petitioner's file. Subsequently, Petitioner was not reprimanded or otherwise
disciplined and no official record was kept of this incident.
During February, 1984, a "set-up" error by Petitioner on a secret laser tracking missile project know as "Hell-Fire" caused unusable parts to be manufactured and a financial loss to Respondent. Prior to submitting an S.I.R., Mr. Holley met with management in the Personnel and Industrial Relations Department to discuss the Petitioner's situation.
It was at this time that Mr. Thomas Mallis, supervisor of employee relations, seized upon the idea of Petitioner's upcoming 70th birthday on April 3, 1984 as a way in which to be rid of Petitioner. Mr. Mallis reasoned that rather than attempting to terminate Petitioner for cause, Petitioner's 70th birthday would provide a point where Petitioner could be "gracefully retired" under Martin Marietta Corporation's corporate retirement policy.
Martin Marietta Corporation has a nationwide corporate retirement which requires retirement at age 70. Generally, the company does not enforce this requirement at facilities which are located in states where such a policy violates age discrimination laws. Likewise, Respondent does not generally enforce the corporate wide retirement policy at its Orlando facility because it is subject to Florida state law concerning age discrimination.
As of April 4, 1984, Respondent employed approximately 11,000 employees. Approximately 5,017 of those employees were
40 years of age and a small number were over 70.
Although the company's age 70 retirement policy is not generally enforced at Respondent's Orlando facility, the retirement plans provided by the company and the benefits package negotiated by the union with the company for retirement pay focus on age 70 as the point at which retirement benefits mature or "top out." After age 70, no further benefits accrue under the retirement plan.
Thus, as a matter of established practice and/or expectation on the part of the employees, virtually all workers have retired or plan to retire on or before their 70th birthday. Therefore, Mr. Mallis believed that having respondent "retire" at age 70 would be an easy non-confrontational way to terminate Petitioner's employment.
As a member of the United Aerospace Workers local bargaining unit, Petitioner would have had the right to object and file a grievance concerning any proposed termination for cause by Respondent. By "retiring" Petitioner under the corporate policy, Mr. Mallis believed that a "bitter challenge" under the union's often cumbersome grievance/arbitration procedures could be short-circuited.
Under the Respondent's progressive discipline system, generally employees are given 3 to 5 S.I.R.'s or written warnings before any stronger action is taken.
At the time of his involuntary retirement by Respondent on April 4, 1984, the Petitioner was not vested under the company's retirement program and was not entitled to any benefits thereunder.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 760.10(1)(d), Florida Statutes, provides that it is an unlawful employment practice for an employer:
"(b) to discharge or to fail or refuse to hire an individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion, sex, national origin, age, handicap or marital status." (Emphasis added).
In a discrimination case such as this, the Petitioner has the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. If the Petitioner succeeds in establishing the prima facie case, the burden shifts to the Respondent to articulate some legitimate non-discriminatory reason for the action complained of. Should the Respondent carry this burden, Petitioner must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67
L.Ed.2nd 207 (1981).
In order to establish a prima facie case of age discrimination, a complainant must prove: (1) That he is a member of the protected group; (2) That adverse employment action was taken against him, e.g. discharge, demotion, forced retirement; (3) he was qualified for the position and (4) he was replaced by a person outside the protected group. See McDonnelle Douglas Corp. v. Green, 411 U.S. 792, 98 S.Ct. 1817,
36 L.Ed.2d 668 (1973). However, the courts have uniformly recognized the need for flexibility in analyzing whether a prima facie case has been established in some age discrimination cases. In particular, it has been held that a prima facie case
may be established even though the complainant was not replaced by one outside the protected age category. See McEwen v. Home Insurance Co., 633 F.2nd 1150 (5th Cir. 1981). As the court stated in Pace v. Southern Railway System, 31 FEP Cases 710, 714 (llth Cir. 1983):
"Any particular test is only a tool to facilitate evaluation of the proof and to aid the court in evaluating whether a basis for an inference of discrimination has been created . Thus, no matter what test is used, the overall assessment of whether a prima facie case has been established must turn on whether, on the particular facts of a given case, the plaintiff has presented proof of a kind and quantity that requires the defendant to come forward with non- discriminatory reasons for the adverse employment action."
The Petitioner in the instant case has shown a prima facie case of age discrimination. The Petitioner has shown that he was a member of the protected class (70 years of age), that he was qualified for the position and that adverse employment action was taken against him because of his age. The Respondent has failed to articulate and substantiate legitimate, non- discriminatory reasons for the actions complained of. In its Proposed Recommended Order, the Respondent argues that the Petitioner's "age played an important role in protecting him from the normal and natural consequences of his own misconduct and poor performance. . . his age worked to his benefit, in that he was allowed the chance to continue earning a paycheck for an additional six months, rather than suffer from discharge."
Thus, the Respondent seems to present the unique argument that its stated discriminatory reason for discharge (age) was in fact a pretext for its real non-discriminatory reason for discharge (poor performance). Whether or not the Respondent had other reasons for wanting to terminate Petitioner's employment, it is clear that Petitioner was involuntarily retired under a corporate policy which is contrary to Florida law. Because the Petitioner's employment was terminated as a result of the corporate retirement policy which is illegal in Florida, the Petitioner has shown that he was the victim of unlawful employment discrimination. The Respondent's assertion that Petitioner received some benefit by being involuntarily retired at age 70 rather than facing action to terminate him for cause is pure speculation in view of Petitioner's rights to object to
his discharge for cause and to avail himself of arbitration/grievance procedures under the collective bargaining agreement between the company and the union.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is,
RECOMMENDED that a Final Order be entered finding that the Respondent is guilty of a violation of Section 760.10, Florida Statutes and awarding the Petitioner attorney's fees.
It is further RECOMMENDED that the Petitioner be reinstated to his former position. The Respondent may seek to institute proceedings within 30 days from the date of the final order to terminate Petitioner for cause based on his work performance up to April 4, 1984. If the respondent is barred from attempting to terminate Petitioner for cause based on those past incidents for whatever reason, if Respondent chooses not to institute termination proceedings, or if the Respondent successfully defends any termination proceedings, then the Petitioner shall be entitled to back pay for the statutory maximum of two years.
DONE and ORDERED this 18th day of August, 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 18th day of August, 1986.
COPIES FURNISHED:
Joseph Egan, Jr., Esquire Post Office Box 2231 Orlando, Florida 32802
Thomas C. Garwood, Jr., Esquire
57 West Pine Street, Suite 202 Orlando, Florida 32801
Donald A. Griffin, Executive Director Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303
Dana Baird, General Counsel
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303
APPENDIX
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted)
Rulings on Proposed Findings of Fact Submitted by the Respondent
Adopted in Finding of Fact 2.
Adopted in Findings of Fact 1 and 3.
Partially adopted in Findings of Fact 14 and 16. Matters not contained therein are rejected as misleading.
Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as misleading.
Adopted in Finding of Fact 5.
Adopted in Findings of Fact 4, 5, and 6.
Adopted in Finding of Fact 7,/
Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate.
Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as subordinate.
Rejected as subordinate.
Partially adopted in Findings of Fact 10 and 11. Matters not contained therein are rejected as unnecessary and subordinate.
Partially adopted in Findings of Fact 13, 14, 16, and 17. Matters not contained therein are rejected as not supported by competent substantial evidence and/or subordinate. In particular, the finding that the "Petitioner under normal circumstances, should have been discharged for his pattern of poor performance and the associated financial impact upon the company" is rejected as not supported by competent substantial evidence.
Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence.
Rejected as argumentative and/or subordinate.
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=
AGENCY FINAL ORDER
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=
STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS
FRANK HAGGIO, EEOC Case No. n/a FCHR Case No. 84-3511
Petitioner, DOAH Case No. 85-4240
FCHR Order No. 86-050
MARTIN MARIETTA AEROSPACE,ยท
Respondent.
/
ORDER FINDING AN UNLAWFUL EMPLOYMENT PRACTICE AND AWARDING AFFIRMATIVE RELIEF
Panel of Commissioners
The following three Commissioners participated in the disposition of this matter:
Commissioner John J. Sulik, Panel Chairperson;
Commissioner Robert R. Joyce; and Commissioner Thomas H. Poole, Sr.
Appearances For Petitioner, Frank Maggio:
Tobe Lev, Esquire Post Office Box 2231
Orlando, Florida 32802
For Respondent, Martin Marietta Aerospace: Thomas C. Garwood, Jr., Esquire
322 East Pine Street Orlando, Florida 32801
Preliminary Matters
Frank Maggio, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1985),1 alleging that Martin Marietta Aerospace, Respondent herein, unlawfully discriminated against Petitioner on the basis of his age (70).
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 June 14, 1985, the Executive Director issued his Determination finding reasonable cause to believe that an unlawful employment practice occurred.
On December 2, 1985, the Petitioner filed a Petition for Relief from an Unlawful Employment Practice. m e petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T- 8.016(13. The formal proceeding was held on May 12, 1986, in Orlando, Florida, before W. Matthew Stevenson, DOAH Nearing Officer. The Hearing Officer entered a Recommended Order in this matter on August 18, 1986.
Both Respondent and Petitioner filed exceptions to the Recommended Order. Neither Respondent nor Petitioner filed a response to the other's exceptions.
Pursuant to notice, public deliberations were held OA December 5, 1986, in Jacksonville, Florida, before the aforementioned Panel of Commissioners, at which deliberations the Panel determined the action to be taken upon the petition.
Exceptions to the Recommended Order
Respondent
1. Respondent excepts to the Hearing Officer's conclusions of law and recommendations made therefrom. Respondent contends that these findings do not comport with the Hearing Officer's factual findings nor do they reflect the requirements and effect
1
of applicable law. Respondent asserts that the Hearing Officer misinterpreted the respective parties' burdens of proof required to establish the prima facie case and show pretext, thus rendering his conclusions of law based thereon incorrect.
Petitioner
Petitioner excepts to the Hearing Officer's finding that the company would likely have terminated Petitioner had the company not "gracefully retired" him.
Petitioner excepts to the failure of the Hearing Officer to find that Respondent admitted that retirement at age
70 was company policy to the State of Florida Department of Labor and Employment Security, Unemployment Compensation Appeals Section.
Petitioner excepts to the failure of the Hearing Officer to find that Respondent had admitted to the Florida Commission on Human Relations' investigator that retirement at age 70 wee mandatory.
Petitioner excepts to the Hearing Officer's finding that Respondent does not enforce its "70 and out" policy in states where it is unlawful.
Petitioner excepts to the Hearing Officer's finding that Respondent employed a small number of persons over 70 as of April 4, 1984.
Petitioner excepts to the Nearing officer's conclusion of law that Petitioner had the burden of proving Respondent's reasons were pretextual. Petitioner asserts that in instances where there is direct evidence of age discrimination, the burden shifts to Respondent to show that Petitioner would have been fired in the absence of the discriminatory mandatory retirement.
Petitioner excepts to the recommendation of the Hearing Officer that the Petitioner is entitled to back pay only if Respondent is barred from, or forgoes instituting termination proceedings, or if Petitioner successfully defends such proceedings. Petitioner has not entered a response to Respondent's exceptions; Respondent has not entered a response to Petitioner's exceptions.
Rulings on Exceptions
The Panel rejects the Respondent's exceptions to the Hearing Officer's conclusions of law and recommendation. The Panel finds that there is competent, substantial evidence to support the Hearing Officer's findings of fact and that his conclusion based thereon is a correct application of the law. Heifitz v. Department of Business Regulation, 475 So 2d 1277
{Fla. 1st DCA 1985)
The Panel rejects the Petitioner's exceptions to the Hearing Officer's findings of fact made in the Recommended Order as the record contains at least some competent substantial evidence supportive of these factual findings. In the presence of such evidence, the Panel will not disturb the Hearing Officer's findings as to disputed facts. Brevard County Sheriff's Department v. FCHR, 429 So.2d 1235 (Fla. 5th DCA 1983); City of Umatilla v. PERC, 422 So.2d 905 (Fla. 5th DCA 1982).
Regarding Petitioner's exceptions to the Hearing Officer's failure to include the aforementioned facts in his Recommended Order, the Panel finds that the Hearing Officer did not commit error by failing to make such findings. It is the Hearing Officer's function to consider all of the evidence presented and reach ultimate conclusions of fact based upon competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Hearing Officer's role to decide between them. Heifetz v. Department of Business Regulation, supra; Accord De Groot v. Sheffield, 95 50.2d 912 (Fla. 1957).
Accordingly, the Panel rejects these exceptions.
Lastly, the Panel finds that Petitioner's exceptions to the Hearing Officer's conclusions of law regarding the parties' respective burdens of proof and Petitioner's entitlement to back pay have merit. me Supreme Court held that where there is direct evidence of discrimination, the shifting burdens of proof set forth in McDonnell Douglas Corporation v. Green, 411 U.S.
792 (1973), are not applicable. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). Rather where there is direct evidence of discriminatory conduct, as there is in this cause, Respondent's burden is heavier than it would be under a McDonnell Douglas prima facie case. Once Petitioner establishes his prima facie case through direct evidence, Respondent must show by a preponderance of evidence that the same employment decisions would have been reached absent the presence of the discriminatory factor. Lee v. Russell County Board of
Education, 648 F.2d 769 (11th Cir. 1982).
Therefore this Panel finds that even though the Hearing Officer ultimately reached the proper conclusion given the evidence at hearing and the findings of fact made therefrom, his conclusion of law should be modified to reflect the proper standards of proof required in a direct evidence discrimination case, as stated above.
In light of the above, the Hearing Officer's conclusion that back pay should be awarded only if Respondent's post- reinstatement termination proceedings are unsuccessful should be modified. The Hearing Officer's conditional award of back pay for a two year period should also be modified.
Absent compelling circumstances, back pay should be computed from the date of the discriminatory act until the date of final judgment. The Hearing Officer erroneously interpreted section 760.10(13), Florida Statutes {1985),2 as requiring that back pay awards be no more than two years in duration, rather than as a limitation period only with respect to the beginning date for such an award. m e Hearing Officer' B recommendation should therefore be modified to include the proper back pay period.
Thorn v. City of El Segundo, 802 F.2d 1131, 1136 (9th Cir. 1986), and Nord v. United States Steel Corporation, 758 F.2d 1462, 1473 (11th Cir. 1985).
2
Analysis and Discussion
The Florida Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes, provides in part:3
760.10 Unlawful employment practices; remedies;
construction.
It is an unlawful employment practice for an employer:
To discharge or to 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 such individual's. . . age. . .
The issue to be determined is whether Petitioner has shown that Respondent discriminated against him on the basis of age. In order to meet his burden of proof, Petitioner must first establish a prima facie case of discrimination. If Respondent successfully rebuts the prima facie case, then Petitioner must prove by a preponderance of the evidence that the Respondent's proffered reasons for its employment decision were pretextual.
A prima facie case of age discrimination can be established in at least three ways. First, a petitioner may produce evidence which gives rise to an inference of discrimination by showing: (1) that s/he was a member of the protected group; (2) that s/he was discharged; (3) that s/he was replaced by a person outside the protected group; and (4) that s/he wee qualified to do the job. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Second, a petitioner may offer direct evidence of discriminatory intent. Third, a prima facie case may be shown through statistical proof of a pattern of discrimination. Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525 (11th Cir. 1985).
As explained by the court in Lee v. Russell County Board of Education, supra, at 774:
Where the evidence for a prima facie case consists, as it does here, of direct
3
testimony that defendants acted with a discriminatory motivation, if the trier of fact believes the prima facie evidence the ultimate issue of discrimination is proved; no inference is required. Defendant cannot rebut this type of showing of discrimination simply by articulating or producing evidence of legitimate, nondiscriminatory reasons.
Once an unconstitutional motive is proved to have been a significant or substantial factor in an employment decision, defendant can rebut only by proving by a preponderance of the evidence that the same decision would have been reached even absent the presence of that factor.
Accord Maney v. Brinkley Municipal Waterworks and Sewer Department, 802 F.2d 1073 (8th Cir. 1986) Bibbs v. Block, 778 F.2d 1318, 13256 (llth Cir. 1985); and Mills v. M.N.C. Corporation, 750 F.2d 867 (llth Cir. 1985).
Here, Petitioner has shown by direct evidence that age was a significant or substantial factor in Respondent's employment decision. In parts here pertinent, the Hearing Officer made the following findings of fact:
It was at this time that Mr. Thomas Mallis, supervisor of employee relations, seized upon the idea of Petitioner's upcoming 70th birthday on April 3, 1984, as a way in which to be rid of Petitioner. Mr. Mallis reasoned that rather than attempting to terminate Petitioner for cause, Petitioner's 70th birthday would provide a point where Petitioner could be "gracefully retired" under Martin Marietta Corporation's corporate retirement policy.
Although the company's age 70 retirement policy is not generally enforced at Respondent's Orlando facility, the retirement plans provided by the company and the benefits package negotiated by the union with the company for retirement pay focus on age 70 as the point at which retirement benefits mature or "top out." After age 70,
no further benefits accrue under the retirement plan.
Thus, as a matter of established practice and/or expectation on the part of the employees, virtually all workers have retired or plan to retire on or before their 70th birthday. Therefore, Mr. Mallis believed that having respondent "retire" at age 70 would be an easy non-confrontational way to terminate Petitioner's employment.
As a member of the United Aerospace Workers local bargaining unit, Petitioner would have had the right to object and file a grievance concerning any proposed termination for cause by Respondent. By "retiring" Petitioner under the corporate policy, Mr.
Mallis believed that a "bitter challenge" under the union's often cumbersome grievance/arbitration procedures could be short-circuited.
Recommended Order, pages 4-5.
The central question is whether Petitioner has presented sufficient evidence at the hearing to permit the Hearing Officer to conclude that age was a determining factor in Respondent's employment decision. Miller v. General Electric Co., 562 F.Supp. 610, 617 (D.C.Pa. 1983). Petitioner is not required to show that age was the sole factor in the decision, but that Respondent's proffered reason was not the only one and that age made a difference in Respondent's ultimate action. Hagelthorn v. Kennecott Corp., 710 F.2d 76 (2nd Cir. 1983); Goldstein v.
Manhattan Industries, Inc., 758 F.2d 1435 (11th Cir. 1985).
To the extent Respondent's evidence tends to suggest any other legitimate motivation for the challenged action, it is simply evidence offered, as in any context to rebut proof of an essential element of any claim. The Hearing Officer was entitled to conclude that Respondent's dissatisfaction, even though genuine, was a pretext in the sense that it purported to be a complete explanation and was not, for age was a causal factor as well. Cline v. Roadway Exp.,Inc., 689 F.2d 481 (4th Cir. 1982); Hagelthorn v. KennecottCorp., supra.
In the Recommended Order, the hearing officer concluded:
Whether or not the Respondent had other reasons for wanting to terminate Petitioner's employment, it is clear that Petitioner was involuntarily retired under a corporate policy which is contrary to Florida law. Because the Petitioner's employment was terminated as a result of the corporate retirement policy which is illegal in Florida, the Petitioner has shown that he was the victim of unlawful employment discrimination. The Respondent's assertion that Petitioner received some benefit by being involuntarily retired at age 70 rather than facing action to terminate him for cause is pure speculation in view of Petitioner's rights to object to his discharge for cause and to avail himself of arbitration/grievance procedures under the collective bargaining agreement between the company and the union.
Recommended Order, pages 7-8.
As this direct evidence of discrimination found by the Hearing Officer is supported by competent substantial evidence and case law, Respondent must show by a preponderance of the evidence that Petitioner would have been fired for poor performance absent the presence of the discriminatory mandatory retirement. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977) and the cases previously cited herein. It is clear from the record that Respondent failed to meet this burden.
Since Respondent has failed to show by a preponderance of the evidence at the administrative hearing that Petitioner would have been fired for poor performance had he not been forced to retire, this Panel finds that Petitioner has prevailed in his discrimination claim and should be entitled to the full remedy available under the law.
Findings of Fact
Having considered the Hearing Officer's findings of fact, and being particularly mindful of the record in this cause, the Panel finds that the Hearing Officer's findings of fact are supported by competent, substantial evidence and will not be disturbed. The Hearing Officer's findings of fact are hereby adopted.
Conclusions of Law
The Hearing Officer's conclusion of law, except as previously discussed herein, are a correct application of law. The Hearing Officer's conclusions of law, as modified, are hereby adopted.
Remedy
In accordance with the Hearing Officer's Recommendations, the Panel finds that Martin Marietta Aerospace committed an unlawful employment practice by involuntarily retiring Frank Maggio from his position based on his age (70). The Hearing Officer's Recommended Order is hereby adopted, as modified, and is incorporated herein by reference.
It is therefore ORDERED:
That Respondent cease and desist from again engaging in
unlawful employment practice of this nature;
That Respondent offer to reinstate Petitioner to his former or a substantially equivalent position;
That Respondent pay Petitioner the wages he would have earned between April 4, 1984, and the date of this final order, offset by any amount Petitioner may have earned from interim employment;
That Respondent pay Petitioner reasonable attorney's fees; and
That Respondent notify the Commission in writing within
20 calendar days of the date of filing of this Order of the steps that have been taken to comply with this Order.
The Commission reserves jurisdiction over the amount of back wages and attorney's fees. If the parties have reached a proposed settlement regarding the amount of back wages and attorney's fees to be awarded within 30 calendar days from the date of filing of this Order, the parties shall prepare and submit a Joint Stipulation of Settlement for Amount of Back Wages and Attorney's Fees for consideration by the Commission. If the parties are unable to reach an agreement regarding the amount to be awarded within 30 calendar days from the date of this Order, the parties shall file a Notice of Failure of Settlement for Amount of Back Wages and Attorney's Fees with the Clerk of the Commission.
The parties are advised of their 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.; Fla. R. App. P. 9.110(b).
It is so ORDERED.
DATED this 29th day of December, 1986.
FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
BY:
Commissioner John J. Sulik Commissioner Robert R. Joyce;
and Commissioner Thomas H. Poole, Sr.
ENDNOTES
1/ Unless otherwise indicated, all statutory references are to Florida Statutes {1985), and all rule references are to Florida Administrative Code.
2/ Section 760.10(13) provides:
"No liability for back pay shall accrue from a date more than 2 years prior to the filing of a complaint with the Commission." Emphasis supplied.
3/ The Human Rights Act of 1977 is patterned after the Civil Rights Act of 1964, 29 U.S.C. Section 2000-e. Therefore, cases construing Title VII offer interpretative guidance for the state act. School Board of Leon County v. Hargis, 400 So.2d 1235 (Fla. 5th DCA 1983).
FILED this 5th day of January, 1986, in Tallahassee, Florida.
Regina McGuff
Clerk of the Commission
COPIES FURNISHED:
Tobe Lev, Attorney for Petitioner
Thomas C. Garwood, Jr., Attorney for Respondent Danica W. Parker, Legal Advisor for Commission Panel
Paulette H. Simms, Administrator of Employment Investigations
W. Matthew Stevenson, DOAH Hearing Officer
Docket for Case No: 85-004240
Orders for Case No: 85-004240
| Issue Date |
Document |
Summary |
|
Jan. 05, 1987 |
Agency Final Order
|
|
|
Aug. 18, 1986 |
Recommended Order
|
Petitioner was terminated from his position solely on the basis of his age. Respondent was ordered to reinstate Petitioner to his former position and pay attorney's fees.
|
