STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR R. JONES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2768

) PROGRESS RAIL SERVICES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on August 6, 1996, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: Arthur R. Jones, pro se

Post Office Box 8 Satsuma, Florida 32189

For Respondent: Charles F. Henley, Esquire

Post Office Box 40593 Jacksonville, Florida 32203-0593

STATEMENT OF THE ISSUE

The issue is whether respondent is guilty of an unlawful employment practice as alleged in the petition for relief filed on April 19, 1996.

PRELIMINARY STATEMENT

This matter began in October 1994, when petitioner, Arthur R. Jones, filed a charge of discrimination with the Commission on Human Relations alleging that respondent, Progress Rail Services, Inc., had discriminated against him because of his age. After conducting a preliminary investigation, the agency issued its Determination: No Cause on April 2, 1996. Thereafter, petitioner filed a petition for relief on April 19, 1996, realleging his original complaint.

The matter was referred by the agency to the Division of Administrative Hearings on June 11, 1996, with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated July 5, 1996, a final hearing was scheduled on August 6, 1996, in Green Cove Springs, Florida.

At final hearing, petitioner testified on his own behalf and presented the testimony of Timothy Blount, a former co-worker, and Charles H. Dorris, a quality assurance inspector. Respondent presented the testimony of Fred A. Cornish, III, Thomas M. Martin, Joseph B. Mays, David Randall Cochran, and

Ernestine D. Burkes, all present or former employees. Also, it offered respondent's exhibits 1-9. All exhibits were received in evidence.

A copy of the transcript of hearing was filed with the undersigned on September 25, 1996. Proposed findings of fact and conclusions of law were filed by respondent on September 13, 1996. None were filed by petitioner. The proposed order has been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this discrimination case, petitioner, Arthur R. Jones, alleges that in October 1993, when he was fifty-four years of age, he was unlawfully terminated from his position as a welder with respondent, Progress Rail Services, Inc. (PRS), on account of his age. After conducting a preliminary investigation of the claim, the Commission on Human Relations (Commission) concluded that there was no reasonable cause to believe that an unlawful employment practice occurred. Petitioner then filed his petition for relief realleging the same disparate treatment.

   
   

2. Respondent is a Florida corporation engaged in the business of refurbishing railroad cars and is located in Green Cove Springs, Florida. Although there is no direct evidence as to the number of persons employed by PRS, through representation of its counsel in his opening statement, it can be inferred that PRS employed fifteen or more employees for each working day in each of twenty or more calendar weeks in the year when the alleged unlawful employment practice occurred, or in the preceding calendar year.

   
   

3. After taking a welding test, petitioner began employment with PRS in April 1992. Initially, he worked as a carpenter, but he was later transferred to a "weld out" position. The latter position involved physically demanding work and required petitioner and a co-worker, working as a team, to weld steel tops onto railroad car frames.

   
   

4. During petitioner's tenure as a PRS employee, PRS had a progressive discipline policy which provided that an employee would receive a verbal warning, followed by a written warning, which was then followed by placement on probation. The fourth and final step was termination of employment.

   
   

5. PRS's absenteeism and tardy policy was based on a point system. Employees received one point for tardy or early leave, and two points for absences. When the employee reached eight points, a verbal warning was given in accordance with the progressive discipline policy. A total of twelve points resulted in a written warning while sixteen points resulted in a period of probation. Eighteen points resulted in termination.

   
   

6. On November 17, 1992, petitioner was given his first verbal warning regarding absenteeism. On March 24, 1993, petitioner again received a verbal warning for failing to report to work on time. On the March 24 disciplinary action form, petitioner was admonished by his supervisor to "come to work on time."

7. On May 12, 1993, petitioner was given a written warning for absenteeism. On the disciplinary action form, the supervisor noted that petitioner "need(ed) to improve on come (sic) to work all work day."

   
   

8. As of May 24, 1992, petitioner had accumulated seventeen points, and thus he was placed on probation for excessive absenteeism. His supervisor again warned him in writing "not (to) be late or absent," and if he was, "(i)t will result in your termination at (PRS)." All of the foregoing disciplinary actions were taken by supervisor O'Bryant.

   
   

9. Sometime after May 24, 1992, petitioner began working under a new supervisor, Thomas M. Martin. On December 12, 1992, petitioner was given a verbal warning by Martin for "not wearing safety shoes." The warning was justified since petitioner was not wearing lace-up safety shoes as required by company policy.

   
   

10. In May 1993, petitioner was transferred to a "weld-out" position under the supervision of Randy Cochran. On September 3, 1993, Cochran gave petitioner a written warning for "not doing (the) job assign(ed) to him!" Petitioner had been instructed to clean out a storage boxcar but was found reading a newspaper. He was advised in writing that he "need's (sic) to perform the job assign(ed) to him!"

    
    

11. On October 1, 1993, petitioner was placed on probation for poor "work performance" due to not meeting established time standards for a particular job. Specifically, he was charged with "taking too long to do the work" by "spend(ing) 5.0 hours on (a job that) should have taken 2.0 hours to complete." He was told in writing to "(d)o (his) job within the time standards," or face possible "termination."

    
    

12. After observing petitioner continually failing to meet established time standards during the next few days, on October 6, 1993, Cochran verbally warned petitioner that unless he "made the time standard" on the job he was working that morning, he would be terminated. When Cochran later observed petitioner "way behind" on his job, petitioner was terminated for poor "work performance." According to the disciplinary action form, petitioner was "not able to complete work within time standards." These time standards were uniformly applied to all welders regardless of age, and the dismissal was in conformity with PRS's progressive discipline policy.

    
    

13. There is no credible evidence that PRS was motivated by discriminatory animus when it made this employment decision. Whether petitioner was replaced by another person, and if so, the age of that person, is not of record.

    
    

14. When an employee leaves employment with PRS, an exit interview is conducted to identify any problems with employment policies and procedures, including management practices. Complaints made by the employee regarding unfair treatment, such as discrimination, are recorded on the exit interview form. When petitioner was discharged, an exit interview was conducted. During the interview, petitioner made no complaints regarding suspected age discrimination.

    
    

15. Petitioner was not employed from the time of his discharge until November 16, 1994. On that date, he began collecting Social Security disability benefits.

16. During the years 1991 through 1994, PRS discharged eighty-one employees. Of those, twenty-four were age forty or over. In 1995, respondent had one hundred fifty-seven employees, of which sixty-one were age forty or older.

    
    

17. At hearing, petitioner contended that Randy Cochran, his supervisor from May 1993 until his termination, made discriminatory comments regarding his age. Specifically, petitioner contended that, on more than one occasion, Cochran called him an "old man" and threatened to fire him on account of his age. These allegations, however, are not deemed to be credible and are hereby rejected.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

    
    

19. Section 760.10(1)(a), Florida Statutes, makes unlawful the following conduct:

    
    

    1. It is an unlawful employment practice for an employer:

       (a) To discharge . . . any individual

       . . . because of such individual's . . . age.

       
       

20. In this case, petitioner alleges that he is the victim of an unlawful employment practice based on age. To make out a prima facie case of age discrimination, petitioner must establish that (a) he was qualified for the position held; (b) he was replaced by another person of a different age; 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 Co., 503 So.2d 1269, 1270 (Fla. 2nd DCA 1986); Rogers v. Penney Retirement Community, 15 F.A.L.R 493, 494 (FCHR, April 14, 1992). Once a prima facie case is made, the burden shifts to the employer to demonstrate a legitimate, nondiscriminating reason for the discharge. If this burden is met, the presumption dissipates and in order to prevail, 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; Nat'l Industries, Inc. v. Comm. on Human Relations, 521 So.2d 1123, 1126 (Fla. 5th DCA 1988).

    
    

21. Assuming that the jurisdictional threshold under Section 760.02(7), Florida Statutes, can be met by inferential evidence, petitioner has nonetheless failed to present a prima facie case of age discrimination. While he has shown that he was fifty-four years of age when he was terminated, there is no evidence that he was replaced by any other person, much less one of a different age. Moreover, there is no credible evidence, circumstantial or direct, from which the undersigned can reasonably conclude that PRS intended to discriminate in reaching its employment decision.

    
    

22. Assuming arguendo that a prima facie case has been established, PRS has articulated a legitimate, nondiscriminatory reason for petitioner's discharge, that is, a failure by petitioner to satisfactorily perform his assigned job duties. This being so, the petition should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the the Commission on Human Relations enter a Final Order

denying the petition for relief.

DONE AND ENTERED this 1st day of October, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1996.

COPIES FURNISHED:

Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Arthur R. Jones Post Office Box 8

Satsuma, Florida 32189

Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593

Dana A. Baird, Esquire Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written 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: 96-002768

Orders for Case No: 96-002768