STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD BEARD, )

)

Petitioner, )

vs. ) CASE NO. 88-5126

)

SYSCO CORPORATION d/b/a )

PLANTATION-SYSCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 3, 1989, at Fort Myers, Florida, before Veronica D. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at hearing were as follows:

FOR PETITIONER: Roberta A. Kushner, Esquire

Kushner & Kushner 2603 Main Street

Post Office Drawer 2200 Fort Myers, Florida 33902

FOR RESPONDENT: Dale Nelson, Qualified Representative

Director of Personnel - Regulatory Compliance Sysco Corporation

1390 Enclave Parkway

Houston, Texas 77077

Posthearing appearances were made in the case. FOR RESPONDENT: John Edward Alley, Esquire

Robert D. Hall, Jr., Esquire Alley and Alley, Chartered

205 Brush Street Post Office Box 1427 Tampa, Florida 33601

On October 18, 1988, the Petition for Relief from an Unlawful Employment Practice filed by the Petitioner Donald Beard (hereinafter Beard), was referred to the Division of Administrative Hearings to resolve the disputed issues of fact. The Petitioner alleged that he was unlawfully discriminated against on the basis of age by his employer, Respondent Sysco Corporation d/b/a Plantation Sysco (hereinafter Sysco).

During the hearing, the Petitioner presented two witnesses and testified in his own behalf during direct and rebuttal testimony. Three exhibits were submitted by Petitioner. The Respondent called one witness and filed seven exhibits. All of the exhibits offered were admitted into evidence. The

transcript of the proceedings was filed with the Hearing Officer on March 23, 1989. Both parties submitted a Proposed Recommended Order which became due on May 2, 1989. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

ISSUES

Whether the Petitioner was unlawfully discriminated against on the basis of age by his employer, who terminated him five months prior to the vesting of his pension benefits.

Whether the Respondent articulated a legitimate, non- discriminatory reason for Petitioner's termination.

Whether the Petitioner proved by a preponderance of evidence that the articulated reasons were pretextual.

FINDINGS OF FACT

1. The Petitioner Beard is an individual who was born on November 21, 1947. The Respondent Sysco is a national food distribution company who delivers frozen foods to food service establishments such as restaurants, hospitals, and other institutions where meals are prepared and served.

   
   

2. The Petitioner became employed by the Respondent in August 1977, at 30 years of age, in Fort Myers, Florida, as a truck driver. On June 16, 1979, the Respondent was promoted to Fleet Supervisor. At the time of the promotion, the Fort Myers warehouse where the Petitioner was employed was a full-service warehouse. The Petitioner's job duties were to supervise the truck drivers who were making deliveries from the Fort Myers warehouse. It was his responsibility to be aware of all the accounts in the area, and to set up the delivery routes and schedules. Straight trucks were used for delivery, and the route areas included Charlotte, Lee, Hendry, and Coller Counties.

   
   

3. In 1983, the Respondent Sysco began handling and delivering more products in the Fort Myers distribution area than the Fort Myers warehouse could accommodate. Respondent decided to move the Fort Myers warehouse operation to its Miami location.

   
   

4. As a result of the relocation of the warehouse portion of the Fort Myers operation, the Petitioner's job duties changed significantly. Under the new delivery procedures, the Miami warehouse would shuttle a 46-foot trailer to the Fort Myers location. The old loading dock was used to unload the trailer and to place the products on the straight trucks. From these trucks, the local truck drivers distributed the products to customers. Under these operational changes, the Petitioner became responsible for the supervision of the shuttle drivers who drove the 46-foot trailer and supplemental straight trucks once they left the Miami area and were in the Fort Myers operational area. He was also responsible for the Fort Myers route drivers, and it was his duty to make sure that the proper products were loaded in the most efficient way on the correct trucks from the Fort Myers loading dock. In addition, the Petitioner was responsible for the planning of the local routes and the trouble shooting necessary to correct misdeliveries, damaged goods, missing products, or special orders.

   
   

5. In January 1986, the Respondent's Florida warehouse operations underwent further change and reorganization. At this time, all of the Fort

   Myers local routing responsibilities were moved to Miami, where the products would be routed by computer. The Petitioner was required to assist in this change, to consult with Miami to teach them about the service area, and to trouble shoot when the new system did not serve customer needs. In addition, new equipment and procedures were implemented in order to accomplish product distribution. The Respondent began to use short trailer trucks for local distribution routes instead of the traditional straight trucks. Under the new procedures, two short trailers are loaded in Miami. One trailer is hooked behind the other, and a tractor hauls the products to Fort Myers. Each trailer is self-contained, and has been packed in the order of the local driver's scheduled route. Once in Fort Myers, the local driver would hook his tractor to the designated trailer and proceed to his route. Under this system, there is no rehandling or reorganization of the products sent from Miami, as previously required by Respondent. At this point, the Petitioner's management responsibilities were drastically reduced, and his acquired skills were no longer important to the Respondent's operations.

   
   

6. Pursuant to these changes, the Petitioner no longer exercised control over the truck loading for local route deliveries in the Fort Myers area. The entire routing and delivery system was handled in Miami. Although the Petitioner continued to supervise truck drivers and to handle the trouble shooting needed in delivery and routing matters, he was now required to run a partial route and make deliveries several days a week. The Respondent decided that the Petitioner's return to route work was necessary as his supervisory and paperwork responsibilities had been reduced.

   
   

7. Between January and April of 1986, the Petitioner's supervisor became aware of that the Petitioner was having difficulty adjusting to the changes in his job duties as envisioned by the Respondent. The Petitioner was critical of the new procedures, and continued to unload and reload products at the Fort Myers loading dock once the trailers arrived from Miami. This was contrary to the Respondent's purpose as the Respondent sought to keep reloading to a minimum to prevent opportunities for product damage, thawing, or routing errors. The Respondent also sought to reduce man-hours used in products handling to reduce operational costs. In order to correct these problems, the Petitioner's supervisor spoke with him and later issued a memorandum instructing that routing would be done in Miami and that unloading/reloading of the product in Fort Myers be held to an absolute minimum. The Petitioner was asked to assist in an orderly transition to the new procedures.

   
   

8. In the ensuing twelve months, the Petitioner continued to resist the operational changes made by the Respondent. The Petitioner continued to unload and reload the trailers once they reached Fort Myers. The routings continued to be changed by the Petitioner when he reviewed the routings and determined that certain changes were necessary.

   
   

9. In November 1986, the Petitioner was verbally warned by his supervisor that his refusal to adopt the required operational changes was causing the Fort Myers area to have the most costly delivery operations in the marketing group. In spite of this warning, the Petitioner continued to reload and unload trailers, reroute, and to assign other drivers to his designated route.

   
   

10. On April 29, 1987, the Petitioner was terminated from employment by his supervisor. The reasons given for termination were the Petitioner's failure to follow procedures, not making deliveries, and for having his subordinates motivated against him.

11. The termination from employment occurred four months before the Petitioner's pension vested with the Respondent. According to the Employee Benefit statement as of June 29, 1986, the retirement plan would pay $7,983.00 per year for life, if retirement took place on December 1, 2012.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.57(1), Florida Statutes, and Rule 22T-9.008, Florida Administrative Code.

    
    

13. Section 760.10(1) Florida Statutes, provides in pertinent part:

    
    

    It is an unlawful employment practice for an employer:

    1. To discharge ...any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's ...age....

       
       

14. Under the petition filed in this case, the Petitioner contends that the Respondent discharged him in April of 1987. The failure of the Respondent to use progressive disciplinary methods against the Petitioner, the timing of the discharge, the Petitioner's repeated statements under oath that he was unaware of the company policies he allegedly violated at the time of discharge, would normally establish a prima facie violation of Section 760.10, Florida Statutes.

    
    

15. However, under the facts presented at the hearing, it was determined that the Petitioner had been made aware of changes in his job responsibilities and the products distribution system to be used in the Fort Myers area. The Petitioner resisted the changes and continued to unload and reroute company products, despite verbal and written communications which told him not to interfere with the new distribution system.

    
    

16. It appears from the evidence presented that the Petitioner cooperated with the Respondent and performed his job well during various job changes that required skill development, and gave the Petitioner more responsibility and status. The January 1986 job changes phased out many of the skills acquired by the Petitioner, which had been appreciated and praised by his employer in the past. The Petitioner's company responsibilities were drastically reduced, and his status and authority as a supervisor were undermined when he had to handle a route like the truck drivers. The Petitioner had great difficulty adjusting to these changes.

    
    

17. The Respondent's managerial staff at the levels involved in the transition, did not recognize the Petitioner's behavior in Fort Myers as an attempt to reacquire status, a sense of importance within the company, and supervisory control over his staff of truck drivers. As a result, the personnel problems created by the transition were not adequately reviewed and handled by the Respondent.

    
    

18. Nevertheless, Petitioner was aware of the Respondent's operational changes and what his new job duties were within the company after January 1986. The Petitioner chose to ignore many of the changes, even when it was pointed out to him by his supervisor that his behavior was costing the company money. He did not attempt to reform or adjust to the new situation. The job expected of

him by his employer was not getting done. Based upon the Petitioner's failure to adapt over a fifteen month period and his clear knowledge of his employer's revised job duties, he was unable to prove a prima facie case of an unlawful employment practice by his former employer. The Petitioner was unable to demonstrate that he "was performing his job at a level that met his employer's legitimate expectations." Huhn v. Koehinger Co., 718, F.2d 239 (7th Cir. 1983).

19 As an alternative method of showing a prima facie case, a petitioner can offer direct evidence of discrimination. Maggio v. Martin Marietta Aerospace, 9 FALR 2168, 2173 (1986). In this case, no such evidence was presented.

20. The burden in this case was upon the Plaintiff to prove, by a preponderance of the evidence, that the proffered reason for discharge was not the true reason and that, in fact, age was "a determining factor" in the Respondent's decision. Snyder v. Washington Hospital Center, 36 FEP cases 445 (D.D.C. 1984). As no discriminatory motive was demonstrated, and the proffered reasons for discharge were not shown to be pretextual the Petitioner did not meet his evidentiary burdens in this case. The reasons given for discharge were based upon the Petitioner's lack of adjustment to his new job duties and his failure to met the job requirements as they had been redefined by Respondent.

Accordingly, based upon the foregoing, it is RECOMMENDED:

That the Human Relations Commission enter a Final Order denying the Petitioner's request for reinstatement, back pay and benefits or pension benefits earned at the date of termination as an unlawful employment practice has not been demonstrated in this case.

DONE and ENTERED this 30th day of May, 1989, in Tallahassee, Leon County, Florida.

VERONICA D. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5126

Petitioner's proposed findings of fact are addressed as follows.

1. Accepted. See H.O. #2

2. Accepted.

3. Rejected, contrary to fact. See H.O. #3 and #5.

4. Rejected, contrary to fact. See H.O. #1, #4, #5 and #6.

5. Accepted. See H.O. #5.

6. Accepted.

7. Rejected, contrary to fact. See H.O. #7.

8. Accepted.

9. Rejected. Improper summary. Lack of opportunity for witness to know the facts upon which they testified.

10. Accepted all but the last sentence. See H.O. #8.

11. Rejected, contrary to fact. See H.O. #9.

Respondent's proposed findings of fact are addressed as follows: 1.. Accepted. See H.O. #2.

1. Accepted. See H.O. #1 and #3.

2. Rejected. Irrelevant.

3. Accepted. See H.O. #5.

4. Accepted. See H.O. #5.

5. Accepted. See H.O. #4.

6. Accepted. See H.O. #5 and #6.

7. Accepted. See H.O. #7 and #9.

8. Accepted.

9. Accepted. See H.O. #7 and #9.

10. Accepted. See H.O. #6 and #8.

11. Accepted. See H.O. #7.

12. ReDected. Irrelevant.

13. Rejected. Irrelevant.

14. Accepted. See H.O. #9.

15. Rejected. Hearsay.

16. Rejected. Hearsay.

17. Rejected. Hearsay.

18. Rejected. Hearsay

19. Accepted. See H.O. #10.

20. Rejected. Irrelevant.

COPIES FURNISHED:

Roberta A. Kushner, Esquire Kushner & Kushner

2603 Main Street Post Office Box 2200

Fort Myers, Florida 33902

John-Edward Alley, Esquire Robert D. Hall, Jr., Esquire Alley and Alley, Chartered

205 Brush Street Post Office Box 1427 Tampa, Florida 33601

Donald A. Griffin Executive Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird, Esquire General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dale Nelson, Representative Director of Personal -

Regulatory Commission Sysco Corporation

1390 Enclave Parkway

Houston, Texas 77077

Docket for Case No: 88-005126

Orders for Case No: 88-005126