STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD W. TELANDER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2578

) SURE BRAKE, INC., f/k/a ROYAL ) BRAKE CENTERS, INC., d/b/a ) BRAKE-O BRAKE CENTERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on August 2, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Respondent improperly discriminated against Petitioner in employment on the basis of his age and handicap.

APPEARANCES

For Petitioner: Donald W. Telander, pro se

1101 Ravenwood Drive

Valrico, Florida 33594

For Respondent: Sherman Sutton

General Manager Florida Operations SURE BRAKE, INC.,

1406 North Dale Mabry Boulevard Tampa, Florida 33607

BACKGROUND INFORMATION

On January 9, 1987, Petitioner, Donald W. Telander, filed a Complaint of Discrimination against the Respondent, Royal Brake Centers, Inc., d/b/a Brake-O, alleging that he had been discriminated against because of age and handicap.

The matter was investigated by the Florida Commission on Human Relations, (FCHR), which, on April 13, 1988, entered its Determination of No Cause in the matter. A Notice of Determination of No Cause was also furnished to the parties on April 14, 1988. Thereafter, on May 20, 1988, Mr. Telander filed a Petition For Relief From Unlawful Employment Practice based on the same allegations as contained in his original complaint and the matter was thereafter transmitted to the Division of Administrative Hearings on May 25, 1988 for the appointment of a Hearing Officer. On June 10, 1988, the undersigned set the case for hearing on August 2, 1988, at which time it was held as scheduled.

At the hearing, Petitioner testified in his own behalf and presented the testimony of John M. Topping, a former employee of Respondent who followed Petitioner as manager of the Brandon, Florida store; and Jose Rodriguez, also a

former employee of the Respondent at its New Port Richie, Florida store. Petitioner also introduced Petitioner's Exhibits 1 through 3 and 5 through 9. Petitioner's Exhibit 4 for Identification was offered but not received.

Sherman P. Sutton, General Manager of Florida operations for Respondent, Sure Brake, Inc., testified on behalf of the Respondent and introduced Respondent's Exhibits A through E. Respondent's Exhibit F for Identification was offered but not admitted.

No transcript of the hearing was provided and neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. Petitioner, Donald W. Telander, was employed by Royal Brake Centers, Inc. in its Tampa, Florida store for nine years prior to October, 1985. At that time, Respondent opened a new store in Brandon, Florida. Petitioner was assigned to that store as manager because he asked for a transfer since the new store was closer to his home in Valrico. Petitioner felt that because it was a new store in a virgin territory, in which he knew quite a few people, he would be able to make it successful. At the time of his transfer, Petitioner went into the new store as a non-working manager. This meant that he performed managerial duties but did not perform actual hands-on mechanical brake repairs, leaving those to the service manager and service technicians.

   
   

2. In September, 1986, Petitioner was advised that he would be required to be a hands-on working manager in the future and Petitioner refused to accept that change. Though asked several times, he consistently declined to accommodate his employers and, on September 9, 1986, was terminated from employment with the company. Just prior to this time, Royal Brake Centers, Inc. was sold to a new owner, Sure Brake, Inc., and as a part of the new ownership reorganization, personnel changes were implemented throughout the more than twenty stores in Georgia and Florida. The Brandon store was not the only one which had a reduction in force at the time Petitioner was terminated. Every store in the chain was reduced by one personnel slot in September, 1986 at the same time as Petitioner's dismissal, and numerous executives within the system were either demoted in position or given a cut in pay.

   
   

3. In early August, 1986, in advance of the proposed change and at the time the ownership transfer was effected, Mr. Sutton, General Manager of Florida operations, advised Mr. Telander there would be a requirement for all managers to become hands-on working managers. Mr. Telander does not recall that conversation. After Mr. Telander declined to become a hands-on working manager in the Brandon store, he was offered a position as a non-hands-on working manager in one of the Atlanta, Georgia stores, but declined this assignment as well as he did not want to leave the Brandon area. Only when his termination was made known to him, did he offer to perform some other job within the organization, such as driving the parts truck. His offers in this regard were rejected because the jobs he offered to do were otherwise filled.

   
   

4. During the eleven months Petitioner was in charge at the Brandon store, it grossed in excess of $136,000.00 in sales at an acceptable cost of goods sold ratio. That store was opened in October, 1985, and by March, 1986, it did

   $20,000.00 per month in sales at a 21.3% cost of goods sold ratio. This is an acceptable record. He had achieved between $9,000.00 and $15,000.00 per month in sales prior to that time.

5. Petitioner did a good job for the Respondent for the nine years he worked for it. Records which, in part, were admitted into evidence, reflect that the Brandon store ranked approximately in the middle in business done by the stores in this chain. Petitioner was never advised at any time during the eleven months he was manager of the Brandon store, that he was not doing well, and his performance was consistently increasing and improving.

   
   

6. Mr. Sutton, while not disputing that Petitioner did an acceptable job while manager, had some reservation about reassigning Petitioner to the Brandon store because it was a new store and he did not know whether or not it would succeed. The operation has succeeded, however, and there are still two employees at that store.

   
   

7. In April, 1986, Mr. Telander had an accident on the job for which he filed a Workman's Compensation claim. This claim was subsequently denied because it was determined he was not disabled or in need of treatment as a result of the accident. No medical documentation to support disability from that accident was, apparently, submitted.

   
   

8. Petitioner contends that he was terminated from employment by Respondent not because of his failure to accept employment as a working manager, but because, due to his extensive medical problems, the company's insurance premiums were expected to increase dramatically. In support of this theory, John M. Topping, a former employee of the Dale Mabry store from 1984 - 1986, who went to the Brandon store to replace Petitioner when Petitioner was terminated, relates that in a discussion with Mr. Sutton which took place in Topping's office Sutton indicated the company was planning to let Mr. Telander go because of his health problems. Mr. Sutton emphatically denies this.

   
   

9. In addition, another employee who was also discharged for refusing an assignment, Jose Rodriguez, was allegedly advised by his supervisor, Mr. Rizzo, that the company was planning to discharge Petitioner because of his health problems, which had resulted in too many claims against the company. Rodriguez' testimony, in so far as it relates to the disclosure made to him by Rizzo, however, is hearsay, and cannot be used by itself to support a finding that Petitioner was discharged because of his health. It does, however, tend to lend some credence to Topping's testimony regarding Sutton's alleged disclosure. Nonetheless, the testimony of both Rodriguez and Topping is somewhat suspect in that both were separated from employment with the company for cause. Consequently, it is found that though Petitioner did have a series of medical problems, he has failed to establish by a preponderance of the evidence that his discharge was motivated by a desire on the part of company officials to avoid paying increased insurance costs.

   
   

10. Petitioner has also alleged that his discharge was based on his age and that he was replaced by a younger man (Mr. Topping). Admittedly, Petitioner is in his mid-fifties and Mr. Topping is some twenty years younger. However, a partial listing of Respondent's employees as of August 31, 1986 indicates there are at least two other employees older than Mr. Telander. Therefore, though the documentation submitted by Respondent is less than accurate (it reflects Petitioner and his son are the same age and that Petitioner is scheduled to retire in 2027 when he would be 95 years old), it does establish that other employees are as old or older than Petitioner, and defeats his claim that his separation was based on his age.

    
    

11. It is clear, then, that Respondent's basis for discharging Mr. Telander is that business had dropped and the reorganization brought about

    thereby dictated that store managers should be hands-on working managers, involved in the day to day provision of brake maintenance. Petitioner's agreement to comply with these wishes was, unfortunately for him, too late coming after the decision was made to terminate him when he initially declined to comply with the company's wishes. Petitioner did a creditable job for Respondent during the period of his employment. His termination was not based on his inability to perform nor, as he claims, on his age or medical background. Instead, the evidence shows that Petitioner initially refused to comply with the terms of a reorganization plan and under those circumstances, his termination from service with the company appears justified.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

13. Subsection 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer to discharge an individual because of his age or handicap.

    
    

14. Petitioner has the burden of proof to establish by a preponderance of the evidence that an unlawful employment practice has occurred, Florida Department of Transportation v. J.W.C., Inc., 396 So.2d 778, (Fla. 1DCA 1981). The employee first must prove a prima facie case of employment discrimination. If the employee succeeds, the burden then shifts to the employer to establish some legitimate, nondiscriminatory, valid business purpose for the employee's discharge, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981).

    
    

15. Here, Petitioner has attempted to show, through the testimony of Mr. Topping and Mr. Rodriguez, that he was discharged from employment with the Respondent because of his age and his medical problems which, were he to continue working for the company, would result in largely increased medical insurance premium payments by the employer. He claims he was discharged to avoid those increased payments. The only undisputed evidence to that effect was the testimony of Mr. Rodriguez which was exclusively hearsay. Mr. Topping's testimony was unequivocally contradicted by the person who allegedly made the statement. Both Topping and Rodriguez, however, had been discharged and their testimony is somewhat suspect. Petitioner introduced nothing to establish his age as a basis for discharge. On the other hand, Respondent's roster, somewhat outdated as it was, at least was some indication that there were other employees on the payroll who were older than Petitioner. Taken together, it cannot be said that Petitioner satisfied his burden to establish the unlawfulness of his discharge by a preponderance of the evidence.

    
    

16. Respondent showed a legitimate business reason for discharging the Petitioner. Business throughout the chain had diminished substantially and a corporate reorganization had taken place. As a part of the reorganization, individuals who had previously held purely management jobs were being required to assume additional hands-on duties as a part of their employment. When this was proposed to Petitioner, he declined and it was his lack of cooperation and his unwillingness to serve as he was needed that prompted his termination. His subsequent, post-notification, change of heart and willingness to do what was requested of him was, unfortunately for him, too late.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Petition for Relief filed in this case by Petitioner, Donald W. Telander, be dismissed.

RECOMMENDED this 25th day of August, 1988, at Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1988.

COPIES FURNISHED:

Donald W. Telander Margaret Agerton, Clerk 1101 Ravenwood Drive Florida Commission on Valrico, Florida 33594 Human Relations

325 John Knox Road

Sherman Sutton Building F, Suite 240

General Manager Tallahassee, Florida 32399-1925 Florida Operations

SURE BRAKE, INC.,

1406 North Dale Mabry Boulevard Tampa, Florida 33607

Donald A. Griffin Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird, General Counsel Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 88-002578

Orders for Case No: 88-002578