STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

GENEVA C. RODGERS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3497

) PENNEY RETIREMENT COMMUNITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by it duly designated Hearing Officer, Donald R. Alexander, on December 10, 1991, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: Geneva C. Rodgers, pro se

511 Cove Street

Green Cove Springs, Florida 32043

For Respondent: Allan P. Clark, Esquire

3306 Independent Square One Independent Drive

Jacksonville, Florida 32202 STATEMENT OF THE ISSUES

Whether respondent unlawfully discharged petitioner as an employee because of her age.

PRELIMINARY STATEMENT

This cause arose on May 23, 1990, when petitioner, Geneva C. Rodgers, filed a complaint of discrimination with the Florida Commission on Human Relations (Commission) alleging that respondent, Penney Retirement Community, had violated Section 760.10, Florida Statutes (1989) by terminating her employment because of age (59 years). After the Commission conducted a preliminary investigation, its executive director issued a Determination: No Cause on April 25, 1991.

Thereafter, on May 2, 1991, petitioner filed a petition for relief. The matter was then referred by the Commission to the Division of Administrative Hearings on June 6, 1991, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated July 15, 1991, a final hearing was scheduled on November 21, 1991, in Green Cove Springs, Florida. The matter was subsequently rescheduled to December 5, 1991, and then again to December 10, 1991, at the same location. On December 9, 1991, the case was transferred from Hearing Officer P. Michael Ruff to the undersigned.

At final hearing, petitioner testified on her own behalf. Respondent presented the testimony of Dr. C. Noel White, its administrator, Joseph D. Burnett and Kenneth T. Hand, residents of the facility, and Jean S. Farley, its bookkeeper. Also, it offered respondent's exhibits 1-20. All exhibits were received in evidence.

There is no transcript of hearing. The parties waived their right to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based upon the entire record, the following findings of fact are determined:

1. Petitioner, Geneva C. Rodgers, was hired as a secretary by respondent, Penney Retirement Community (PRC), on June 16, 1988. PRC operates a retirement community for Christian workers in Penney Farms, Florida (Clay County). As an employer with more than fifteen full-time employees, PRC is subject to the regulatory jurisdiction of the Florida Commission on Human Relations (Commission). Rodgers did not give her age at hearing. However, a Commission "investigatory report" and claim for unemployment compensation sponsored into evidence by respondent reflect she was fifty-nine years of age when she was terminated from employment on March 30, 1990.

   
   

2. From her date of employment on June 16, 1988, until October 1, 1989, Rodgers was under the direct supervision of a Dr. Paul Hagens, who served as administrator for the facility. On that date, he was replaced by Dr. C. Noel White, a former minister who was then fifty years of age. Petitioner characterized her relationship with Dr. White as "awkward" and uneasy from the start and it is fair to say that the two never had a good working relationship. At hearing, Rodgers described the numerous tasks assigned to her as "overwhelming" and she agreed she was never able to adequately keep up with the workload. In addition, Dr. White and Dr. Hagens appeared to differ in their approaches to the job of administrator and Rodgers was unable to adapt to the workstyle and needs of her new supervisor.

   
   

3. During the six months that she worked for Dr. White, petitioner had a series of problems with her work performance. These included such things as misfiling documents, making errors on Dr. White's appointment calendar, giving the wrong location for meetings, preparing documents incorrectly, repeatedly mishandling Dr. White's telephone calls, and omitting enclosures from various mailings. Towards the end of the six month period, Dr. White began to document many of these shortcomings. Copies of this documentation have been received in evidence.

   
   

4. By March 1990, Dr. White concluded that it was necessary to terminate Rodgers because of the various deficiencies in her work performance. On March 30, 1990, which was a Friday, Dr. White called petitioner into his office and advised her she was being terminated effective that day but she would be given two weeks severance pay. Although petitioner was given an opportunity to review the documentation which White had accumulated concerning her shortcomings, she declined to review it.

   
   

5. Petitioner was replaced by a forty-one year old female, Anita F. Clayton, who had over twenty years experience as a secretary-personnel assistant. When he hired Clayton, Dr. White did not know her age.

6. To support her claim of discrimination, Rodgers pointed out that she was replaced by a younger woman. She also voiced the belief that Dr. White wanted a "younger" secretary because it "enhanced his ego". She opined that because Dr. White was "a very social administrator", he felt more "comfortable" with younger people in general. In addition, Rodgers felt the charge of inefficiency was unjustified because she had been given too much work, some of which she claimed should have been assigned to a non-secretarial position, and she was forced to work with an inefficient telephone system and copyier machine. Finally, she pointed out that one member of PRC's board of directors (a Dr. Wilson) had complimented her job performance. However, to the extent these assertions are credible, they do not support a finding that PRC had a discriminatory motive when it reached a decision to terminate Rodgers.

   
   

7. Of the seventy-six full-time PRC employees, approximately twenty-four are between the ages of forty and sixty while six are over sixty years of age. Both the business manager and nursing home administrator are over sixty years of age and the head nurse is seventy-five years old. According to Dr. White, age was not a consideration in terminating Rodgers and he would have kept her as his secretary for as long as she wanted to work had he been satisfied with her performance.

   
   

8. There is no evidence concerning Rodgers' salary while she was employed by PRC or the amount of lost wages, if any, that she suffered. The record does reflect that Rodgers collected an undisclosed amount of unemployment compensation pursuant to a claim filed on April 2, 1990.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

   
   

10. Subsection 760.10(1)(a), Florida Statutes (1989) provides in pertinent part:

    
    

    1. It is unlawful employment practice for an employer:

       1. To discharge . . . any individual . . . because of such individual's . . . age.

          
          

          The complaint herein alleges that PRC violated this statute by unlawfully terminating Rodgers from employment by reason of her age.

          
          

11. To make a prima facie case of age discrimination, Rodgers must show that (a) she was between the age of forty and seventy at the time of her discharge; (b) she 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, 527 So.2d 894, 898 (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).

    
    

12. Petitioner failed to establish a prima facie case consistent with the requirements of Anderson. It is true that Rodgers demonstrated that she was within the protected age group (fifty-nine years of age) and she was qualified for the position of secretary. However, there is no evidence, either circumstantial or direct, from which one could reasonably infer that the employer was motivated by discriminatory animus, to wit, that she was terminated because of her age. Even if such a burden had been met, the employer has articulated a legitimate, non-discriminatory reason for the challenge employment decision. More specifically, the established facts show clearly that the employee was terminated for lack of performance on the job. This being so, the petition for relief must be denied.

    
    

13. In light of the above conclusions, respondent's motion to dismiss, which was twice renewed at hearing, is rendered moot and is accordingly denied.

RECOMMENDATION

Based upon the foregoing findings of facts and conclusions of law, it is recommended that the petition for relief be DENIED.

RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 16th day of December, 1991.

COPIES FURNISHED:

Margaret A. Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Geneva C. Rodgers

511 Cove Street

Green Cove Springs, Florida 32043

Allan P. Clark, Esquire 3306 Independent Square One Independent Drive

Jacksonville, Florida 32202

Dana C. Baird, Esquire

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

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. Some agencies allow a larger period within which top 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.

Docket for Case No: 91-003497

Orders for Case No: 91-003497