NEAL C. CURROW, )
Intervenor, ) CASE NO. 90-7301
vs. )
INSTITUTE, INC. and )
Respondents. )
This matter came on for hearing in Panama City, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on April 12, 1991. The Division of Administrative Hearings received the hearing transcript* on June 19, 1991. The attached appendix addresses the parties' proposed findings of fact by number.
For Petitioner: Rhonda S. Clyatt, Esquire
P.O. Box 2492
For Respondents: E. John Dinkel, III, Esquire
P.O. Box 1531
*The transcript misstates the hearing officer's name.
Whether respondent discriminated against petitioner on account of his age in terminating his employment, in violation of the Florida Human Relations Act, Section 760.10 et seq., Florida Statutes (1989)?
After petitioner complained that respondent had terminated his employment because of his age, the Florida Commission on Human Relations investigated.
When the investigation eventuated in a "NOTICE OF DETERMINATION: NO CAUSE" dated September 24, 1990, petitioner filed a petition for relief from an unlawful employment practice in accordance with Rule 22T-9.008(1), Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Department of Human Relations,
470 So.2d 754 (Fla. 1st DCA 1985), which the Commission referred to the Division of Administrative Hearings for hearing. See Section 120.57(1)(b)3, Florida Statutes (1989).
By petition for leave to intervene filed April 5, 1991, the Florida Commission on Human Relations (FCHR) sought and was granted leave to participate on the limited issues raised by respondents' motion to relinquish jurisdiction to the Florida Commission on Human Relations or in the alternative a motion for continuance. After denial of this motion, FCHR took no further part in the proceedings as an intervenor.
On July 3, 1989, when he was fired, Neal C. Currow, who was born on January 20, 1927, was by far the oldest employee (T.180) at the Panama City Marine Institute, (PCMI) a non-profit corporation that contracts with the Bay County School Board to provide alternative education programs; and with co- respondent Associated Marine Institutes, Inc. (AMI) to rehabilitate juvenile delinquents or furnish other services for young people.
AMI "consists of" (T.225) or "operates" (T.226) 28 schools or institutes like PCMI, of which 13 are in Florida. AMI contracts with the Department of Health and Rehabilitative Services (HRS) to provide services, then subcontracts with its constituent schools. AMI has "central bookkeeping . . . all the payroll is done in Tampa." T.228. But AMI does not maintain complete personnel files on each employee centrally.
A "40 year Water Safety Instructor Trainer with the American Red Cross," (T.181) Mr. Currow also holds a "100 ton Master's license for . . . Auxiliary Sail," id., issued by the U.S. Coast Guard. After 18 years as an independent building contractor, he became a junior college teacher and "started all of the building programs for the Gulf Coast [Junior] College." Id. Mr. Currow wears a hearing aid, but he still does aerobics five days a week.
Before he went to work for PCMI as a paid employee on September 29, 1980, Mr. Currow had worked as a volunteer for approximately a year, donating money and the use of his motor home, as well as time. A "stable employee, he had all the knowledge . . . [and was] relied on for information . . . [about] how to do things." T.139. Other employees looked up to him and the children respected him more than most of the other teachers. Id.
At PCMI, he suffered the gibes of Jack Ross, George M. "Mike" Larson, who was director of operations at the time, Mr. Larson's successor, with apparent good humor. In staff meetings, Messrs. Ross and Larson referred to him as "the old man" and "the old fossil." T.140-1. When Mr. Larson did "his hearing aid thing" (T.140), i.e., telling Mr. Currow to "turn it up Neal, or turn it down, Neal, or something referring to it . . . Jack would laugh."
T.140.
Danny Grizzard referred to Mr. Currow as "the old man" five or ten times a week, sometimes behind his back, and frequently asked questions like "Does Neal have his hearing aid turned up?" T.121. Danny Grizzard is "in his 40's" (5.12) and Jack Ross is "[m]aybe a couple of years younger." Id.
As seamanship and vocational instructor at PCMI, Mr. Currow taught sailing and woodworking. T.30. He also had duties as a "Deep Sea Captain" (T.615) and "did all the training of the staff in aquatics." Id. He regularly took student teams to sailing regattas. Petitioner chaperoned "more student trips that anybody [else] in the institute. In fact, [he] taught about student trips at . . . staff conferences every year." T.172.
On such trips and otherwise, PCMI students required supervision, an institute policy that was "stressed continually." T.221. The policy is that "[c]hildren should remain within the eyesight of the staff that they're assigned with," (T.17) but the policy was not always followed. T.105, 158. On overnight trips, official policy specified that the ratio of students to staff should not exceed 5 to 1. Petitioner's Exhibit No. 1, but compliance with this policy, too, was a sometimes thing.
The Early Years
As executive director of PCMI from March of 1983 to August of 1988, Larry Schmidt spoke to Mr. Currow about supervising children at least twice. Early on in this five-and-a-half-year period, on two occasions, students under petitioner's supervision reoprtedly misbehaved, both times at Etheridge Marina in Panama City. Once students smoked in the bathroom there and another time there "was a theft . . . [of] sodas or something," (T.221) or so Mr. Schmidt heard.
Mike Larson, PCMI's Director of Operations for approximately a year ending in the middle of March 1989, testified that petitioner "would become insubordinate with me." T.214. He also testified:
"[H]is students might be out on the dock and he would be in his classroom, okay, out of his supervision. There's other times, one case in memory, the students was in his classroom and he was next door at a business getting parts."
T.213. (Of course, testimony that something "might be" cannot establish what in fact occurred.) Mr. Larson spoke to Mr. Currow about supervising the students on "several occasions." T.213.
Jack K. Ross succeeded Mr. Schmidt as PCMI's Executive Director, approximately half way through Mr. Larson's tenure as operations director. Mr. Ross remembered an occasion in August of 1988 when Mr. Currow was in his
classroom while "the kids were outside in the back yard without a staff member" (T.39) and another time when "there were kids out there on the dock . . . [and petitioner was in the seamanship] room getting fishing gear." T.39.
On the latter occasion, Mr. Ross testified, he "walked into the seamanship room and I said, 'look Neal, you need to be with your kids', and he said, 'well, I can't be in two places at one time.' And I said, 'well then, you need to bring your kids with you in the class and do it as a group.' And at the staff meetings I reiterated the supervision on a couple of occasions." T.39.
On at least one other occasion, Mr. Ross spoke to Mr. Currow individually about supervising children.
Written Expectations
Like Mr. Larson, Mr. Ross felt Mr. Currow was insubordinate at times. After Mr. Ross spoke to O.B. Standard, AMI's vice-president of operations, about petitioner, Mr. Standard visited PCMI, where he spoke further with Mr. Ross "worked with . . . [Mr. Larson] on his people skills" (T.51); and "had a nice conversation [with Mr. Currow] . . . for two or three hours . . . about supervision [and] everything else you could imagine." T.190. At Mr. Standard's suggestion, Mr. Ross then wrote Mr. Currow this memorandum, dated November 28, 1988:
Neal, as a veteran staff member at PCMI, you are a vital part of a very elite team. Your commitment to PCMI and the kids over the past
10 years is of the finest standards. Your hard work and dedication has made you a legend within PCMI.
As you are aware, there have been a few changes at PCMI over the previous months. As a professional, I am soliciting your help in supporting me with some of these often difficult changes. There comes a time in everyone's life when we have to stop and decide whether we can adapt and change, or whether we need to step down to reach a new personal challenge.
Should you decide to remain with PCMI and continue using your expertise towards helping the troubled youth of Bay County, there are a few expectations I ask that you must consider. Below I have outlined what I expect from every member of the PCMI staff to continue to make PCMI a winning team.
Supervision--a maximum of 7:1 ratio of students to staff member. You are to remain with the students you are assigned. Everything during the course of the day that you are involved with, should be done with every member of your class. Never separate the class and put yourself in a position where you cannot intervene with a situation.
Negative comments--to display teamwork and integrity among the kids, we cannot expose ourselves as being negative around the students. Talking negative around the students about other staff members is not acceptable behavior. As a member of the PCMI team we are being observed the community 24
hours a day. When comments are made concerning the institute, they should always be made with PCMI's best interest at heart.
Supporting the D.O.--The Director of Operations is the conductor of the orchestra. If he is not supported by the rest of the team, then the kids suffer. As the Executive Director I will not allow the kids to suffer. It is your responsibility to support the Operations Director if you are to remain a part of the team.
Insubordination--insubordination is not accepting authority. As a captain you know that every member of your crew cannot give orders to control the boat. You expect every crew member to lend a hand and accept orders to ensure the success of the cruise. The same is true at PCMI. Insubordination is not acceptable at PCMI.
These are the only changes I have made that I think you should re-evaluate. What I am talking about are values. Values are what we are trying to teach the kids. If we do not display them, then we are being hypocritical with the students.
Neal, we need you at PCMI, and I sincerely hope you decide to personally accept these challenges and join the team again. Should you decide to continue with PCMI, and I hope you do, I and the rest of the PCMI team are willing to help you work on these problem areas. If this is asking too much, then I understand and I wish you the best of luck in the future.
Respondent's Exhibit No. 3. Aside from this memorandum, no writing in respondent's personnel file made mention of any problems supervising students.
T.50. Not long after the memorandum was written, PCMI sent Mr. Currow to Dallas with five or six students to pick up a sailboat. (T.193).
Single Incident Next Year
In years past staff and students alike had attended regattas on St. Andrew Bay as spectators when the PCMI team Mr. Currow coached participated.
T.20. Again in 1989, the PCMI team won the regatta. But, when at least one
instructor asked to take her students to watch, Danny Grizzard, who had taken over from Mr. Larson as operations director on March 6, 1989, had denied permission.
Mr. Currow and seven PCMI students were together day and night during the regatta, which began on the last Monday in June and finished the following Thursday, June 29, 1989. At the banquet and awards ceremony with which the regatta concluded, Mr. Currow told Mr. Grizzard that "he and the kids were going out for ice cream with one of the other teams and that he was going to spend the night [with the students on a sailboat anchored] at the park." T.62.
One of the young sailors in petitioner's charge that night, Shane Hernandez, lived on the same street as Fran, petitioner's "lady friend." At least as early as the banquet, there was talk of watching television at Shane's house. After the banquet and after ice cream, petitioner acquiesced, taking the students to Shane's house, where they found "the lights on . . . and the cars .
. . there." T.171.
While the others waited outside in the van, Shane went inside ostensibly to learn, as respondent had asked him to find out, if it would be "okay for [them] to watch TV." T.171. Shane reappeared saying it was "okay," and petitioner let the other students out of the van, saying he would be right back. Only later did Mr. Currow learn that neither Shane's parents nor any other adult had been at home when he left the children there. T.207.
After dropping the students off at the Hernandezes', he drove "two doors down" "probably around 75 yards" (T.13) to his friend's house, parked and went inside. Before the awards banquet, Mr. Currow had gotten word that his mother was "in the hospital in Pensacola again, and . . . [had] a blood clot in her leg." T.170. Using Fran's telephone, he spoke to a hospital nurse in Pensacola.
Fifteen or twenty minutes after dropping the children off, he started for the Hernandez home on foot. The students met him before he reached the house, asking for something to drink. Evidently Mr. Hernandez's girlfriend, who arrived at the Hernandez house shortly after the children did, (T.136) had nothing to offer. After Fran served the boys soft drinks, Mr. Currow drove them back to the sailboat where they all spent the night. Friday morning they returned to PCMI.
Petitioner Discharged
The next day Danny Grizzard telephoned Shane Hernandez. In response to his questions, Shane told him that the students had been unsupervised for 15 or
20 minutes. Immediately after talking to Shane, he telephoned Mr. Ross, and relayed the news. The next Monday, a day off for petitioner, Mr. Grizzard summoned him to PCMI's offices, where he and Jack Ross told him he no longer had a job.
"Neal, you['ve] finally done it," (T.169) Mr. Ross said. Perplexed, Mr. Currow did not realize what he was talking about at first. Then he or Mr. Grizzard told him of the report that the children had been left unsupervised for
15 or 20 minutes, but nothing was said about his having sole supervision overnight of seven (rather than five or less) students, a ratio his supervisors had countenanced.
Learning that Mr. Currow had resigned or been discharged, students prepared a petition which stated, in part: "We feel it is unfair that the most valued and loved instructor at PCMI be punished because he trusted us." Respondent's Exhibit No. 5. The petition was signed by 27 students, perhaps all of the students at PCMI. (Eric Hernandez, Shane's father, testified for petitioner at hearing.)
Younger Men Hired
The preceding Thursday (the day of the awards banquet), PCMI had hired Eddie Prevost, at the time 27 or 28 years old, to instruct in scuba diving and to do woodworking. "He did some vocational work, that was his background."
T.34. Mr. Prevost, who, when hired, filled a newly created position, took over petitioner's duties as vocational instructor, after petitioner was discharged.
The vacant slot created by petitioner's termination was filled by 25- year-old John Penland, who took over petitioner's duties as seamanship instructor. To the extent the place Mr. Currow had held in the organization was filled, younger men took his place. PCMI "had additional funding in July and .
. . split the position into two positions . . .." T.74. PCMI "replaced [petitioner] with a vocational instructor and a seamanship instructor." Id.
Some time after the discharge, PCMI proposed to petitioner that he continue training staff in aquatics on a contract basis, but petitioner turned down this offer to work two weeks a year for $75.00 a day. T.177. At no time after July 3, 1989, did AMI or PCMI offer petitioner any other employment.
T.176. Nobody was hired to train staff in aquatics, as far as the evidence disclosed.
Incident Was Pretext
AMI and PCMI attach understandable importance to supervision of children for whom they are responsible. Yet, as far as the record shows, PCMI has never terminated any other employee for failure to supervise students.
T.244. This is so even though it "was not unusual" (T.105) at PCMI for students to be out of sight of the instructors responsible for their supervision. T.158, 176.
Sometimes as many as 14 students would be assigned clean-up out of doors (as punishment) and left without supervision, except for checks every 40 minutes or so. T. 106, 142. Certain staff members frequently permitted children to walk between the PCMI campus and the civic center unsupervised. These facts were known to some, probably all, supervisory personnel.
Between November of 1988 and February 1, 1991, some of the 27 other schools that, together with PCMI, comprise AMI discharged a total of 43 employees citing problems supervising children. Respondent's Exhibit No. 7.
The severity and frequency of such problems are not a matter of record, however, and nobody who had worked nearly as long as petitioner had was terminated for this reason. Id.
Respondents showed that, of the 44 people discharged for student supervision problems during this period by all 28 schools, petitioner was the oldest: eight others were over 40 years old and four of them were also over 50. Respondent's Exhibit No. 7.
The fact that Mr. Currow left the sailing team unsupervised for 15 or
20 minutes at the Hernandez house was not the real reason for his discharge, although, as petitioner himself conceded, Respondent's Exhibit No. 4, this lapse was a breach of institute policy for which discipline was appropriate. Messrs. Ross and Grizzard did not themselves view the incident as an adequate reason to discharge petitioner.
Petitioner's dismissal was out of keeping with past practice at PCMI. His firing came as a genuine and understandable surprise to him and others, and was viewed by virtually everyone other than the decision-makers as an injustice. E.g., Respondent's Exhibit No. 5. The reaction to his discharge reflected how drastic the departure from ordinary practice was, and how implausible the reason assigned for the termination was.
CONCLUSIONS OF LAW
Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1989), to "discharge . . . or to otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual's . . . age." Section 760.10(1)(a), Florida Statutes (1989).
Viewed as a discrete entity, PCMI never had more than eight full-time regular positions at any pertinent time. But all parties have proceeded on the premise that PCMI and AMI are properly viewed together, as a single employer. AMI employees' testimony and consolidated employee records like those received as Respondent's Exhibit No. 7 support this approach. Together, PCMI and AMI clearly qualify as an employer, within the meaning of the statute. As respondents concede, their Exhibit No. 8 is no bar to the present proceeding. Newberry v. Florida Department of Law Enforcement, CJSTC, No. 90-2088 (Fla. 3rd DCA; Sept. 17, 1991) 16 FLW D2442.
Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases, notably Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Furnco Construction Co. v. Waters, 438 U.S. 567 (1978) and MacDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), have been looked to for guidance on employment discrimination questions. E.g., Florida Department of Community Affairs v. Michelle Bryant, No. 88-4660 (Fla. 1st DCA; Sept. 16, 1991); Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2d DCA 1986).
No Direct Proof
Although federal age discrimination cases arise under the Age Discrimination in Employment Act, rather than under Title VII, "[t]he substantive provisions of the ADEA 'were derived in haec verba from Title VII.' Lorillard v. Pons, [434 U.S. 575 (1978)] at 584." Trans World Airlines, Inc. v. Thurston, 409 U.S. 111 (1985). Moreover, "the framework of proof established in McDonnell Douglas is applicable to both Title VII and ADEA cases. Klein [v. Trustees of Indiana University], 766 F.2d [275] at 282 n. 4." Dorsch v. L.B. Foster Co., 782 F.2d 1421, 1424 (7th Cir. 1986). Anderson v. Lykes Pasco Packing Co., supra.
A petitioner "may show age discrimination either through direct or circumstantial evidence of discharge based on age. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985); Dale v. Chicago Tribune Co. 797 F.2d 458 (7th Cir. 1986). The analytic framework appropriate for cases arising under ADEA is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1212 (7th Cir. 1985)." Kier v. Commercial Union Ins. Companies, 808 F.2d 1254, 1257 (7th Cir. 1987).
"In the face of direct evidence, an employer must prove that the same employment decision would have been made absent any discriminatory intent." Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1988) citing Young v. General Foods, 840 F.2d 825, 828 (11th Cir. 1988); Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 n. 13 (11th Cir. 1988); Buckley v. Hospital Corp. of America, 758 F.2d 1525, 1529-30 (11th Cir. 1985); and Bell v. Birmingham Linen Serv. 715 F.2d 1552, 1557-58 (11th Cir. 1983). Here petitioner has not proven age discrimination by direct evidence. Although condescending references to his age and inappropriate allusions to his hearing impairment cannot be condoned, they fall short of direct proof that he lost his job on account of his age.
Federal cases support this conclusion. "See e.g. Barnes v. Southwest Forest Industries, Inc. 814 F.2d 607, 610-11 (11th Cir. 1987) (remark by personnel manager to terminated security guard that in order to transfer 'you would have to take another physical examination and at your age, I don't believe you could pass it' did not constitute direct evidence of discrimination): Lindsey v. American Cast Iron Pipe Co. 772 F.2d 799, 801 (11th Cir. 1985) (supervisor's statement that plaintiff would not be considered for upcoming position because company would be looking for younger person than plaintiff constituted direct evidence of discrimination based on age); Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. Unit B 1981) (scrap of paper on which was written 'Too old-Lay Off' constituted direct evidence); Simmons v. McGuffey Nursing Home, Inc., 619 F.2d 369, 371 (5th Cir. 1980) (remark that board wanted younger man did not indicate that plaintiff was terminated because of his age)." Carter v. City of Miami, 870 F.2d 578, 582 n. 10 (11th Cir. 1988).
Prima Facie Case
In the absence of direct evidence, petitioner "had the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). A p[etitioner] discharged by his employer '"makes out a prima facie case by showing [1] that he was within the statutorily protected age group, [2] that he was discharged, [3] that the employer sought to replace him with a younger person and [4] that he was replaced with a younger person outside the protected group."' Simmons v. McGuffey Nursing Home, Inc., 619 F.2d 369, 371 (5th Cir. 1980) (quoting Marshall
v. Westinghouse Electric Corp., 576 F.2d 588, 590 (5th Cir. 1978), cited in Pace
v. Southern Railway System, 701 F.2d 1383, 1386 n. 7 (11th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983)." Rosenfield v. Wellington Leisure Products, Inc., 782 F.2d 1493, 1495 (11th Cir. 1987) (footnote omitted).
Courts are split over whether, in order to make out a prima facie case, a discharged employee must prove that he or she was qualified to hold the position that was lost, some taking the view that qualification may be inferred from the fact of employment. In any event, the evidence was clear here that Mr. Currow was and remains fully qualified to hold the job he lost. Petitioner also
showed that he was a member of "a statutorily protected age group" (workers over
40 and under 70), that he was discharged, and that his employer tried and succeeded in finding younger replacements.
Respondent makes much of the fact that petitioner's duties devolved on two persons, so that no one person can be said to have filled the vacancy created by his discharge. In Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525 (11th Cir. 1985), "[f]ollowing plaintiff's departure, her duties were divided among 12 other employees," 758 F.2d at 1529, but this did not prevent Judge Tuttle's looking at the ages of all twelve:
Ten of these were over 40, while only two were under 40. The hospital subsequently hired an assistant director of nursing, age 45, who absorbed plaintiff's former duties. In May 1983 [long after plaintiff's discharge] Owens, age 46, became clinical coordinator, a position which also absorbed plaintiff's former duties.
At 1529. Here, the two employees whose positions "absorbed" Mr. Currow's former duties were each his junior by decades, and outside the protected class altogether.
Petitioner proved a prima facie case of age discrimination. "Successfully establishing a prima facie case gives rise to a rebuttable presumption of discrimination. Klein v. Trustees of Indiana University, 766 F.2d 275, 280 (7th Cir. 1985)." Dorsch v. L.B. Foster Co., 782 F.2d 1421, 1424 (7th Cir. 1988). "As the court explained in Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 57 L.Ed.2d 597, 98, S.Ct. 2943 (1978), the prima facie case 'raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.' Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case." Texas Department of Community Affairs v. Burdine, 450 U.S. at 254 (footnote omitted).
Burden To Articulate Reason
"The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant." Texas Department of Community Affairs v. Burdine,
450 U.S. at 255-6 (Citation omitted). Respondent introduced evidence articulating a legitimate, non-discriminatory reason for firing petitioner: Leaving children in his charge unsupervised for 15 to 20 minutes. This raised a genuine issue of fact and "frame[d] the factual issue with sufficient clarity so that . . . [petitioner had] a full and fair opportunity to demonstrate pretext." Texas Department of Community Affairs v. Burdine, 450 U.S. at 256.
Claimed Reason Unworthy of Belief
Petitioner Currow, like plaintiffs in Title VII actions, must still "bear the burden of persuasion on the ultimate fact of discrimination." Walker
v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982). Florida Department of Community Affairs v. Bryant, supra. But he "may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U.S. at 804-805, 36 L.Ed.2d 668, 93 S.Ct. 1817." Texas Department of Community Affairs v. Burdine, 450 U.S. at 256.
Mr. Grizzard's initiative in uncovering petitioner's peccadillo, a single lapse after several 24-hour days' uninterrupted supervision, and a year or so after the last incident, evinced a motive other than disinterested enforcement of work rules. Respondents stipulated that "he was not terminated for insubordination." T.215. Mr. Currow testified that he "definitely believe[d]" (T.182) that his age was a factor in his termination, and that he "felt like they felt they could replace me with younger people for a lot less money." Id. But respondents made no claim that they were economizing, and the evidence did not show that petitioner's replacement (requiring two salaries) was a saving for his employer.
The present case, like others of its kind, requires decision of "the elusive factual question of intentional discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. at 254 n. 8. Among the ambiguities one fact stands out starkly. Mr. Currow was not fired because he left the sailing team unsupervised for 15 or 20 minutes one Thursday night or for any other problems supervising children. The evidence showed that he was at least as conscientious as other instructors in this respect. Petitioner carried his burden here by proof that his "employer's proffered explanation is unworthy of credence." 450 U.S. at 256.
It is, accordingly recommended that the Florida Commission on Human Relations enter an order requiring respondents to reinstate petitioner (or make an appropriate award of front pay) and award back pay, attorney's fees and costs; and, in the event the parties cannot agree on the details of relief, that the Commission remand for further hearing as necessary.
RECOMMENDED this 14th of October, 1991, in Tallahassee, Florida.
ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7301
With respect to petitioner's proposed findings of fact Nos. 1 and 2, Mr. Currow was a paid employee for less than nine years.
Petitioner's proposed findings of fact Nos. 3, 4, 7, 9, 10, 11, 12, 13, 14, 15,
17, 18, 20, and 21 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 5 has been adopted, in substance, insofar as material, except for the date.
With respect to petitioner's proposed findings of fact Nos. 6 and 8, somebody else was sent to help at one point.
With respect to petitioner's proposed finding of fact No. 16, no such termination occurred after November of 1988, except for Mr. Currow's.
With respect to petitioner's proposed finding of fact No. 19, the evidence did not show that the hearing impairment was age related.
Respondent's proposed findings of fact Nos. 1, 2, 4, 9, 10, 11, 12, 13, 14, 15,
18, 24, 25, 26, 27, 28 and 30 have been adopted, in substance, insofar as material.
With respect to respondent's proposed findings of fact Nos. 3 and 33, numerous instances of students' going unsupervised were proven, including a 45-minute lapse by Mr. Grizzard.
With respect to respondent's proposed findings of fact Nos. 5, 6, 7 and 8, nobody present at the time testified to these events.
With respect to respondent's proposed finding of fact No. 16, the letter did not warn "that any further occurrence . . . would result in disciplinary action or termination."
With respect to respondent's proposed finding of fact No. 17, it was not shown this was attributable to supervision as opposed to insubordination problems.
Respondent's proposed findings of fact Nos. 19 through 23 pertain to subordinate matters.
With respect to respondent's proposed finding of fact No. 29, petitioner was not offered work in a residential program.
With respect to respondent's proposed finding of fact No. 31, Prevost was hired before July 3, 1989.
With respect to respondent's proposed finding of fact No. 32, Penland assumed some of petitioner's duties.
Ronald M. McElrath, Executive Director
325 John Knox Road Bldg. F, Suite 240
Rhonda S. Clyatt, Esquire
P.O. Box 2492
E. John Dinkel, III, Esquire Macfarlane, Ferguson, Allison
P.O. Box 1531 Tampa, FL 32601
ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.
