vs. ) CASE NO. 89-6996
Respondent. )
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 25 and September 12, 1990, in Tampa, Florida.
For Petitioner: Mark S. Herdman, Esquire
For Respondent: Anthony C. Ginetto, Esquire
The issue is whether petitioner was unlawfully terminated from employment with respondent because of his age.
The matter began on April 25, 1989, when petitioner, Ralph Cosio, Jr., filed a complaint with the Florida Commission on Human Relations alleging that he was terminated from employment with respondent, Metropolitan Life Insurance Company, because of his age. After a "notice of determination: no cause" was issued by the agency, on December 7, 1989, petitioner filed a petition for relief. The matter was referred by the agency to the Division of Administrative Hearings on December 21, 1989, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated January 18, 1990, a final hearing was scheduled on April 3, 1990, in Tampa, Florida. At the request of respondent, the matter was rescheduled to April 25, 1990, at the same location.
At final hearing petitioner testified on his own behalf and presented the testimony of Barry McNamara, Kevin J. Cunningham, Charles J. Cummings and Lou
Orsi. He also offered petitioner's exhibits 1 - 5. All exhibits were received in evidence. Respondent presented the testimony of Barry McNamara, Charles J. Cummings, Harold Sowders and Kenneth Barbour. It also offered respondent's exhibits 1 - 15 and 17 - 24. All exhibits were received in evidence.
The transcript of hearing was filed on May 18, 1990. By agreement of the parties, the time for filing proposed findings of fact and conclusion of law was extended to June 18, 1990, and the same were filed by petitioner and respondent on June 15 and 18, 1990, respectively. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.
On June 28, 1990, the undersigned received an ex parte written communication from a witness in this case. The communication was placed on the record on June 29, 1990, and the parties were given ten days from that date in which to rebut the communication pursuant to Subsection 120.66(2), Florida Statutes (1989). In response thereto, petitioner moved to reopen the case to determine the veracity of the allegations in the communication. The record was reopened by order of the undersigned dated July 27, 1990, and a continued hearing on the limited issue of the ex parte communication was held on September 12, 1990, in Tampa, Florida. The transcript of the continued hearing was filed on September 14, 1990.
Petitioner, Ralph Cosio, Jr., is a white male born on April 1, 1939. On November 1, 1965, he began employment with respondent, Metropolitan Life
Insurance Company (MLIC), a large insurance company that offers various personal and group insurance lines throughout the United States. The parties have stipulated that MLIC is an employer within the meaning of the Florida Human Rights Act.
Cosio was assigned to MLIC's Tampa, Florida office where he spent his entire tenure with the company. He initially sold personal life insurance, but some fifteen months later Cosio was promoted to the position of sales manager of the Tampa office, a position he held until January 1978. During this period, Cosio's performance was exemplary.
In January 1978, and at his own request, Cosio was transferred to group sales, and specifically to the "Met 50 Plus" plan, a new MLIC marketing concept which targeted employers with fifty to one hundred and ninety-nine employees.
In his new position as a group sales representative, Cosio dealt with MLIC agents and independent brokers who requested quotations for group rates for businesses which qualified under the Met 50 Plus plan.
Cosio continued in the area of group sales for the next ten years. He was highly successful during the years 1978 through 1982 when he was rated among the top ten to twelve salespersons nationwide in the Met 50 Plus plan and named to the Leaders Conference, a MLIC award level for top producers.
When he began in group sales, Cosio was a sales representative. In early 1983 Cosio was named senior group representative and in January 1984 was promoted to territorial sales director (TSD) for the southeastern region of the United States. In the latter position, of which there were only six nationwide, he supervised Met 50 Plus group sales in some seven or eight states. He held
this position until the last half of 1986. During the period 1979 until late 1986 there were no negative evaluations, memoranda or comments concerning petitioner.
In the latter part of 1986 Cosio was reassigned from the position of TSD to a senior group sales representative, and was concurrently assigned to market a new group insurance program for employers with more than twenty-five employees but less than fifty. Whether Cosio did this voluntarily is not of record, but he did desire to eliminate the extensive traveling required of a TSD and to remain in Tampa. In any event, the new program was known as "25 to 49 Lives," was considered an expansion of the Met 50 Plus program, and targeted smaller employee groups.
Beginning in late 1986 and continuing through 1987, Cosio specialized in selling MLIC products to the "29 to 49 Lives" groups within the State of Florida. It is noted that MLIC had never before actively marketed its product to that size employer and was now doing so only in a few test sites across the country, including Florida. However, in order to assist Cosio in increasing his sales and making the new program a success, Cosio was given the exclusive right to sell the new product in the entire State and to deal with both independent brokers and MLIC agents.
When Cosio transferred back to group sales, he was replaced as TSD by Lou Orsi. Both Orsi and petitioner agreed that the product for 25 to 49 Lives was not competitively priced and that its pricing structure made sales more difficult. As a consequence, Cosio was authorized to sell insurance at a rate 20% to 25% below the MLIC prices charged in other states. Even so, the anticipated volume of sales in Florida never materialized. However, in 1987 Cosio received some limited recognition from MLIC for his efforts, and his performance that year was rated satisfactory.
In January 1988, the 25 to 49 Lives program was terminated in all states, including Florida, and Cosio returned to marketing the Met 50 Plus product, which is the same product he had sold from 1979 through 1983. MLIC has not attempted to market the "25 to 49 Lives" product since that time.
On November 1, 1987 Harold Sowders, who is a year or so older than Cosio, replaced Orsi as TSD of the southeastern region. Just prior to that, Charles Cummings, who is seven years younger than petitioner, became managing group sales representative in the Tampa office and was Cosio's immediate supervisor. Sowders began reviewing the sales performance of employees in the region, including Cosio, and concluded that Cosio's 1987 production was unsatisfactory. He reached this conclusion because, even though Cosio had submitted a number of proposals to underwriting for quotations, he had only closed four sales for the entire year. Moreover, Cosio's net result for 1987 was a minus $119,000. This meant that after the new business generated by the four sales was subtracted from previous business that was not renewed, the net result was a minus $119,000 on a premium basis. Sowders concluded that these results were unsatisfactory given Cosio's long tenure with MLIC, his statewide exclusivity for selling the product and the 25% discount in price previously established.
In January 1988 Cosio was offered the option of returning to the Met
50 Plus plan or remaining in the 25 to 49 Lives program (which was terminated shortly thereafter). Cosio elected to return to the Met 50 Plus program and was assigned to share the Tampa Bay area with Cummings. In addition, Cosio was given exclusive sales rights for that product in an area north of Tampa.
Although Cosio and Cummings both complained that the Tampa area was too small for two agents, Sowders did not agree with this assessment and made no changes. Also, in late 1987, Cummings informed Cosio that his sales objectives for 1988 were fourteen new cases (closed sales) and $1.5 million in premiums.
Shortly after his return to the mainstream program, Cosio requested the opportunity to sell the product in the Miami area while working out of the Tampa office. This was because Cosio had experienced his most successful sales effort in the Miami area during the years 1979 - 1983, partly due to the fact that he is fluent in Spanish. This request was denied by Sowders on March 4 on the ground MLIC intended to establish a full time manager in the Miami area, something Sowders did shortly thereafter.
On March 4, 1988 Sowders informed Cosio by memorandum that he should produce twenty-three proposals and three sales by April 1, 1988. According to Sowders, this was consistent with the annual sales objective of fourteen per year for group agents given to Cosio by Cummings in late 1987. Cosio was also told there must be "an immediate and substantial improvement" in his sales activities. This admonition was placed in the memorandum because Cosio had generated only three underwriting submissions, one formal proposal and no sales (based on 1988 activities) during the first two months of 1988. However, Cosio did close one sale relating to a proposal submitted in December 1987. Finally, Cosio was told to develop a written "business plan" setting forth his goals and means for obtaining the prescribed sales objectives for the remainder of 1988.
Between March 4 and April 15, 1988, Cosio had no activity whatsoever in terms of submissions, proposals or sales. Sowders relayed information concerning this lack of activity to Barry McNamara, national sales director. On March 30, Cummings reminded Cosio of Sowders' requirement that Cosio prepare a written business plan. In response, Cosio prepared a letter on April 4 questioning whether the Tampa Bay area could support two salespersons. Cummings again requested a business plan on April 7. On April 21, Cosio submitted a one- page business plan to Cummings who then advised Sowders that he was dissatisfied with the response. Sowders also considered the plan to be "woefully short" of a professional strategy.
In July 1988 Sowders reduced Cosio's 1988 sales objectives from fourteen sales to ten sales with annual premiums of $1 million. Up to that point, Cosio had no closed sales relating to 1988 activities. Until June, Cosio was authorized to deal with both MLIC agents and independent brokers. The record establishes that "selling the brokers" was a better market than selling to MLIC agents because brokers are more specialized in group sales. In addition, Cosio had been given exclusive rights (except for the Miami area) to deal with MLIC agents in Florida, who numbered between three and four thousand, and he was authorized to sell the complete portfolio of products, including the multi-option sale to market through agents. Even so, during the first five months of 1988 he submitted only three proposals. This was far below the number of proposals typically needed to generate sufficient sales to reach the prescribed sales objectives. After June, Cosio was limited by Sowders to dealing only with MLIC agents, and not independent brokers, which admittedly made sales more difficult. However, Sowders' thinking was that Cosio had dealt with MLIC agents for many years and had previously been given the exclusive right to deal with agents in all areas of the state, except the Miami area. Thus, he concluded that Cosio would not be severely hampered by the restriction.
On August 2, 1988, Cummings wrote a letter to Cosio advising that Cosio's sales performance was extremely disappointing and that there must be an
immediate and substantial improvement. Further, Cosio was warned that if he failed to meet his minimum requirements, he would be issued a final warning with a view towards terminating his employment.
By September 1988 Cosio's performance had not materially improved. He did make two sales in August 1988 but his year to date proposals numbered only seven. Sowders accordingly established a fourth quarter sales objective of three. On October 22, 1988, Cummings again wrote to Cosio informing him that he had failed to meet his objectives. Also, Sowders discussed Cosio's poor performance with him on no less than four occasions during the year and repeatedly informed him that his performance was unacceptable. Based upon Cosio's prospect calls, sales and number of hours worked, Sowders reached the conclusion that Cosio had not made a good faith effort to sell insurance in 1988.
In mid-1988 MLIC made a decision to acquire the group insurance business of Allstate Insurance Company and to merge MLIC's group business with Allstate's group business and that of Health Care Network, a MLIC subsidiary. According to the national sales director, this resulted in a "combined book of business ... not large enough to support the sales force of those three agencies." Consequently, MLIC management declared a surplus of eighteen employees in the Met 50 Plus Plan, which meant that it intended to terminate, relocate or offer other positions to eighteen MLIC group employees. A decision to surplus various Allstate and Health Care Network employees was also reached.
Faced with the prospect of deciding which eighteen employees would be declared surplus, MLIC group sales management began an evaluation process of all current Met 50 Plus employees. This required each supervisor, such as Cummings, to evaluate the performance of all employees under his supervision during the prior two or three year period and to submit that evaluation to the TSD. After these evaluations were reduced to writing they were discussed at several meetings attended by McNamara and the TSDs in the fall of 1988. As national sales director, McNamara made the final decision but relied on the recommendations of the TSDs. The evaluations rated each of the approximately fifty MLIC salespersons in the categories of "sales ability", "sales record" and "management skills" by giving them a plus, minus, not applicable or question mark. The ratings for Cosio were made by Cummings, Cosio's immediate supervisor, and approved without change by Sowders. Under the evaluation process employed by McNamara, the employees with the highest performance ratings were to be retained while those with lower performance ratings would be declared surplus. Cosio was the only person of the more than fifty evaluated who was given a negative rating in all three categories. This meant he was considered to be unacceptable in all categories. Cummings reached this conclusion based upon the fact that Cosio's production was the worst of any employee on a prorated basis in 1988. Indeed, Cosio had closed only three sales for the entire year and had submitted less than twenty-four proposals. By comparison, Cummings used his own 1988 performance of eleven sales as a measuring stick. Cummings had closed that number of sales even though MLIC's overall business in the last quarter of 1988 was "slow" and sales had declined. Based upon this evaluation, Cosio was determined by McNamara to be surplus. Besides Cosio, five employees in the same region, all younger in age but not salesmen, were surplused. However, one sales representative in the Florida region who was older than petitioner was retained. In all, eleven sales representatives in other regions, all younger than petitioner, were terminated.
In January 1989 Cosio was told he was being surplused effective the end of the month. Although respondent made an effort to place surplus employees
within the group organization, there were no openings at that time. Cosio was offered a job selling personal insurance with MLIC in the Tampa area but declined the offer since MLIC policy required all new life insurance agents to take a non-waivable, written examination. Cosio considered that an insult to a person with more than twenty years of experience, and he considered the offered salary, which was approximately one-half of his previous salary, to be inadequate. He was also aware of the fact he had not sold personal insurance since 1967. Cosio also received an offer from Gulf Life Insurance Company, but he didn't think it would be "the best use of his abilities." Since his termination, Cosio has acted as an independent broker consultant, albeit with very limited success. He has also applied for sales positions with a number of companies but has not received a job offer. It is noted, however, that the numerous job applications proffered into evidence by Cosio at hearing were not submitted to those companies for a number of months after being terminated by MLIC, and the earliest reply was received by him on October 27, 1989. As of the date of the first hearing (April 25, 1990), Cosio had earned only $1,253.07 during 1990 and had been forced to dip heavily into his retirement funds to subsist. Had he been employed by MLIC in 1990, Cosio estimated he would have earned at least $50,000 in salary and commissions.
Petitioner contends that Sowders made certain disparaging remarks about him which prove he was the victim of age discrimination. According to Cosio, he was told by Cummings that after Cummings advised Sowders in August 1988 that Cosio had made two sales that month, Sowders responded that petitioner was "too old, too fat and did not fit the corporate image", and that if he kept making sales "we're stuck with him." Although at hearing Sowders denied making the statement, and Cummings denied he had relayed this information to Cosio, their denials are not deemed to be credible and it is found that such statements were made.
Although Cunningham claimed that Cummings made a statement to him on June 21, 1990, that he (Cummings) had lied at the April 25, 1990 hearing, Cummings did not recant his testimony when given an opportunity to do so at the September 12, 1990 hearing. He also denied making that statement to Cunningham. The undersigned has taken this into account in judging the credibility of Cummings' testimony, and this is embodied in part in finding of fact 21.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).
Subsection 760.10(1)(a), Florida Statutes (1989) provides in pertinent part:
It is unlawful employment practice for an employer:
To discharge ... any individual because of such individual's ... age.
The complaint herein alleges that MLIC violated this statute by unlawfully terminating Cosio from employment by reason of his age.
To make a prima facie case of age discrimination, Cosio must show that
he was between the age of forty and seventy at the time of his discharge;
he was qualified for the position held; and (c) there is evidence,
circumstantial or direct, from which a fact finder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue. Anderson v. Lykes Pasco Packing Company, 503 So.2d 1269, 1270 (Fla. 2nd DCA 1986). Once a prima facie case is made, the burden shifts to the employer to demonstrate legitimate, nondiscriminating reasons for the discharge. If this is done, the presumption dissipates and in order to prevail the petitioner must either prove that a discriminating reason more likely motivated the employer or that the employer's proffered explanation is pretextual. Anderson at 1271; National Industries, Inc. v. Commission on Human Relations, 521 So.2d 1123 (Fla. 5th DCA 1988). These requirements track the often cited criteria used in federal discrimination cases as established by the supreme court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
It should also be noted that Chapter 760, Florida Statutes (1989) is patterned after Title VII of the federal Civil Rights Act of 1964, as amended. As such, where appropriate and necessary, federal precedent construing similar provisions of Title VII should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979).
Petitioner established a prima facie case consistent with the requirements of Anderson. He did so by showing that he was within the protected age group (forty nine years of age), he was qualified for his position of group sales representative by virtue of his twenty-three years of experience with his employer, and he was terminated in January 1988. In addition, there was some evidence from which one could reasonably infer that the employer was motivated by discriminatory animus, to wit, younger employees were retained by the employer and a territorial supervisor made disparaging remarks about petitioner's age. Petitioner having done so, the burden then shifted to the employer to articulate some legitimate, non-discriminatory reason for the challenged employment decision. In this regard, it is noted that the employer is required only to produce evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus. See, e.g., Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981).
Respondent offered legitimate, non-discriminatory reasons for making its decision to terminate Cosio. This conclusion is based on the established facts that because of a merger of three divisions of group sales, MLIC was forced to make a reduction in force of employees due to economic considerations, Cosio was selected for termination from his position due to poor job performance, and the selection was made without regard to age since eleven other sales representatives, all younger than Cosio, were also terminated. Although the TSD made a disparaging comment concerning petitioner's age and weight, Cosio's performance evaluation was made by Cummings, and not Sowders, and Sowders' views on age and weight were not shown to be directly connected to Barry McNamara, who made the final decision. Cf. Feazell v. Tropicana Products, Inc., 819 F.2d 1036 (11 Cir. 1987) (opinion or views of a subordinate manager are irrelevant to proving the intent of his superiors unless clearly connected to his superior's attitudes.)
Because petitioner did not establish that the proffered explanation was pretextual or that a discriminating reason more likely motivated the employer, the petition must fail.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for relief be DENIED.
DONE AND ORDERED this 18th day of September, 1990, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1990.
29-41. Partially adopted in findings of fact 18 and 19. 42-49. Partially adopted in finding of fact 20.
Note - Where a finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence or a conclusion of law.
Mark S. Herdman, Esquire
P. O. Box 75638 Tampa, FL 33675-0638
Anthony C. Ginetto, Esquire Metropolitan Life Insurance Company Law Department, Area 7-G
