JAMES W. JONES, )
vs. ) Case No. 97-0557
Respondent. )
In accordance with duly served notice, this cause came on for formal hearing before P. Michael Ruff, Administrative Law Judge, in DeLand, Volusia County, Florida.
Astrid DeParry, P.A.
For Respondent: Kelly S. Soud, Esquire
Thomas M. Gonzalez, Esquire Thompson, Sizemore and Gonzalez
The issue to be resolved in this proceeding concerns whether the Petitioner was not re-employed as a "mechanic-carpenter" by the Respondent school board based upon the Petitioner's age.
This cause arose upon the filing of a Petition for Relief by James W. Jones, a former employee of the school board of Volusia County. In his Petition, Mr. Jones in essence alleges that he was not re-employed by the school board in an open, advertised "mechanic-carpenter" position, in approximately July 1994, because of his age. In due course the dispute was transmitted to the Division of Administrative Hearings and the undersigned Administrative Law Judge. After discovery was conducted by the parties, the cause came on before the undersigned for formal hearing.
The cause came on for hearing as noticed, at which the Petitioner presented sixteen direct and rebuttal witnesses, and had seventeen exhibits admitted into evidence. The Respondent presented one witness and had eighteen exhibits admitted into evidence. Upon conclusion of the proceedings, the parties elected to order a transcript thereof and requested an extended briefing schedule, concomitantly waiving the customary time period for rendition of a Recommended Order. The transcript of the proceedings was inordinately delayed, as were the Proposed Recommended Orders filed by the parties, as a result of stipulated extensions requested by the parties which were granted. The Proposed Recommended Orders and Memoranda submitted have been considered in the rendition of this Recommended Order.
James W. Jones was employed from 1983 to 1993, as a mechanic-carpenter by the school board. In early 1993 he traveled to the Bicentennial Youth Park (BYP) to deliver supplies from his shop to Mr. Evans, the teacher assigned to the BYP. At that time Mr. Evans informed Jones of an upcoming opening at the BYP for a carpenters position and asked him if he would be interested in filling the position. The Petitioner replied that he would be interested.
The position in question was posted and advertised as two part-time carpenter positions. Mr. Jones did not wish a part-time position and eventually the administration of BYP gained authorization and funding for a temporary, full-time position at the BYP. Mr. Jones, had been trying to leave the facilities maintenance department because of personality
conflicts with his supervisor, Buel Lee. He consequently accepted the temporary, full-time position at the BYP on April 23, 1993.
Prior to accepting the temporary position at BYP, the Petitioner was informed by Mr. Al Evans, Billy Wiesneski, and Terry Ellis that the position was temporary and would only last as long as funding for the position was available. In fact, Mr. Jones signed a letter, dated May 3, 1993, confirming his understanding that the position at BYP was temporary and that its duration was dependent upon the duration of funding allocated by the school board. He
signed that letter in the presence of Mr. Ellis and Mr. Lee on May 4, 1993.1
Additionally, Mr. Jones admits that he signed a Notice of Personnel Action form on April 23, 1993, describing the job as temporary from April 23, 1993, to June 30, 1993, and stating that "annual re-appointment will be based on availability of project funds. . .".
Mr. Jones also told a co-worker, John Driggers, that he knew the position could end in a year but that he was going to take the position anyway because by that time he would have the 10 years of service required to be vested in the pension plan. Mr. Driggers was also aware that Mr. Jones wished to transfer out of the facilities maintenance department at that time.
In summary, although Mr. Jones denies that he knew the position was temporary, that is not the case, as shown by the preponderant evidence discussed in the Respondent's Proposed Findings of Fact on this subject matter. In any event, the only issue properly before the Division and the undersigned Judge, is whether Jones was not hired into a mechanic-carpenter position in the facilities maintenance department at a later date because of his age. His knowledge regarding the temporary nature of the position at the BYP is wholly irrelevant to a decision in this case because of the issues pled and noticed to the opposing party in the Petition.
In any event, after voluntarily accepting that position he
knew to be temporary, the funding finally ran out on March 31, 1994.2 Because funding no longer existed to support the carpenter position at BYP, the Petitioner was not re-appointed to that position and therefore his employment with the Volusia County School Board ended on March 31, 1994.
Subsequently, on May 20, 1994, a mechanic-carpenter position became available in a the facilities maintenance department under the supervision of Buel Lee, for whom Jones had worked prior to taking the position at BYP. The Petitioner applied for that position. He was interviewed by Mr. Lee and considered for employment as a new applicant who had never before worked for the Respondent, as opposed to a laid-off employee under the applicable collective bargaining agreement arrangement concerning re-hire of laid-off personnel.
The Petitioner was not entitled to preference in hiring normally given to laid-off employees because he had not been "laid-off." The lay-off provision in the collective bargaining
agreement defines "lay-off" as "the separation of employee for lack of work or funds without any fault or delinquency on the employee's part." The lay-off provision applies only to employees who have been given an appointment for a definite duration and the funding for the position is cut by the government before the appointment naturally expires by its own terms. Since Jones was simply not
re-appointed upon the natural expiration of his appointment, the lay-off provisions would not be applicable to his situation.
Jones was not entitled to nor was he given preference over other applicants for the 1994 mechanic-carpenter position based on seniority because he was not the most senior applicant for the position. In fact, under the terms of the collective bargaining agreement, he lost all seniority when he terminated from employment or was not re-appointed on March 31, 1994. Therefore, when he applied for the mechanic-carpenter position 1994, he as not entitled to any more consideration than is given to a new applicant. When he applied for that position in 1994, Mr. Lee, the hiring supervisor, interviewed all applicants and made the ultimate decision to hire Walter "Ed" Hayman for the position, instead of the Petitioner.
Mr. Lee interviewed every applicant for that position. He treated Jones as a new applicant rather than a laid-off or senior employee, consistent with the provisions of the collective bargaining agreement. On the other hand, Mr. Lee was required by the collective bargaining agreement to give Hayman preference over Jones since Hayman had worked for the Respondent on an uninterrupted basis since 1991.
Lee had received a letter of reference from a
Mr. Frye, an independent contractor and Hayman's previous employer, indicating that Hayman had worked as a journeyman for 5 years.
Mr. Lee thus believed that Hayman met the qualifications for the job. Lee felt that both Hayman and Jones were skilled in carpentry and did not make his decision based upon his judgment of their respective skills in their profession. Rather, Mr. Lee made a
determination that Hayman was the best qualified for the position based on his knowledge of how each of them got along with others in the work place.
Mr. Lee knew, and Jones admits, that during the time that he previously worked for Lee, Gary Gallencamp requested that he not have to work beside Jones any longer. Jones admits that in fact he had a lot to do with the reasons Gallencamp did not want to work with him anymore.
Lee also knew, and Jones admits, that during the time that he previously worked for Lee, another employee, Ed Owensby, requested that he not have to work with Jones any longer. In fact, he stated that he would be forced to quit if he were required to continue working with Jones.
Finally, Mr. Lee called Mr. Evans, Mr. Jones' most recent supervisor, to ask him for a reference regarding Jones' performance at the BYP. Mr. Evans told Mr. Lee that Jones had trouble getting along with the maintenance man, Earl Green, when working at the BYP. Even Jones admits that he had problems with Mr. Green's work.
Contrarily, Mr. Lee had observed Hayman getting along well with the co-workers during the time he performed work in conjunction with the facilities maintenance department when he was working for the Respondent as a "grounds man." Therefore, based upon personal experience and the information he received from others, Mr. Lee made the decision to hire Mr. Hayman instead of Mr. Jones. Lee never even considered the ages of Hayman or Jones when making that hiring
decision. In fact, Lee himself was approximately 48 or 50 years old when he hired Hayman.
Lee does not have a history of hiring younger workers. In fact, the very person Lee hired to replace Jones, when Jones transferred to the BYP, was Mr. Fred Jacobs, who was then aged 57. The only three applicants hired by Lee after Jones transferred to the BYP and before Hayman was hired, were approximately 40 years old. During that time frame, Lee hired Eric Hoffman, who was 43 or
44 years old. Jeff Straker was in his late thirties or forties, and Fred Jacobs was 57. Thus, in their totality, Mr. Lee's hiring practices do not reflect any-age related bias.
In addition, neither the Respondent's pay plan, nor its pension plan, set forth in the collective bargaining agreement, are related to age. The Respondent's pay ranges are based upon job classification (i.e., mechanic-carpenter) and years of service. Upon being separated from his employment, Jones was being paid at a level commensurate with 11 years of service. Had he begun his employment with the school board immediately upon completion of his vocational training, he would have been 34 or 35 years old and earned the same salary he was making in March 1994, when he was separated from employment. Likewise the pension plan provides that every employee, regardless of age, vests after having provided
10 years of service.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction
over the parties hereto and the subject matter hereof, pursuant to Section 120.57(1), Florida Statutes.
The issues to be determined concern whether the Petitioner was discriminated against when the school board failed to re-hire him as a mechanic-carpenter in July 1994, on the basis of his age, which is the reason asserted in his Petition.
A Petitioner may establish a prima facie case of age discrimination by three means:
if he presents direct evidence of discriminatory intent;
if he meets the tests set forth within the opinion in McDonnell-Douglas Corp v. Green, 411 U. S. 792 (1973);
or by demonstrating through statistical evidence a pattern of discrimination by the employer in question.
See Early v. Champion International Corp, 907 F. 2d 1077, 1081, (11th Cir. 1990). The Petitioner herein has not established a prima facie case of discrimination by reason of his age by any of these measures.
No direct evidence was offered of age discrimination. The Early court stated that ". . . only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, constitutes direct evidence of discrimination,. . " citing Carter v. City of Miami, 870 F, 2d 578, 585 (11th Cir. 1989), 907 F. 2d at 1081. In fact the Carter court stated that:
This Court has held that not every comment concerning a person's age presents direct evidence of discrimination . . . [R]emarks merely referring to characteristics
associated with increasing age, or facially neutral comments from which a plaintiff has inferred discriminatory intent, are not directly probative of discrimination . . . Rather, courts have found only the most blatant remarks, whose intent could be nothing more than to discriminate on the basis of age, to constitute direct evidence of discrimination.
Id. at 582 (citation omitted). One example of direct evidence of discrimination would be a management directive not to hire an employee because "he is too old." See Early supra. A statement which only suggests discrimination, leaving the trier of fact to infer discrimination from its context, cannot be direct evidence. See Young v. General Foods Corp., 840 F.2d 825, 829 (11th Cir.
1988), cert denied, 388 U.S. 1004, 109 S.C. 782 (1989). No
direct evidence of discrimination has been presented by the Petitioner in this case however.
In order to establish a prima facie case of age discrimination under the McDonnell Douglas standards because of a failure to re-hire, a Petitioner must demonstrate the following:
that he was in a protected age group and was adversely affected;
that he was qualified for the position when he applied for it; and
evidence by which a fact-finder might reasonably conclude that the employer intended to discriminate on the basis of age in reaching the decision at issue.
Early supra; Williams v. General Motors Corp., 655 F.2d 120, 129 (5th Cir. Unit B 1981); Verbraeken v. Westinghouse Electric
Corp., 881 F.2d 1041, 1045-46 (11th Cir. 1989).
In this case the Petitioner failed to put forth evidence by which a fact-finder could reasonably conclude that the board intended to discriminate on the basis of age in failing to re-hire him. At most he has put forth evidence that he believed that he was a good worker, that he received good evaluations, and that a younger employee was selected for the position and therefore he believes he was discriminated against on the basis of age. Such evidence, however, as a matter of law does not constitute evidence of age discrimination and is insufficient to support such a finding. Additionally, at most Mr. Jones has put forth evidence of some stray, age-related remarks or comments about employees who were not even involved in the employment action in question. Such stray remarks did not constitute evidence of age bias and are not probative as to the issue of discrimination. Since he has failed to put forth any evidence of intentional age-related bias on the part of the school board the Petitioner has failed to establish a prima facie case of age discrimination under the McDonnell Douglas test.
STATISTICAL EVIDENCE
The Petitioner did not produce statistical evidence probative of any pattern of age discrimination on the part of the school board or its decision making supervisory personnel. In fact, the evidence presented at hearing showed that the decision maker, Buel Lee, commonly hired employees over 40 years of age.
It cannot be inferred that there was any age discrimination based upon statistical evidence.
NON-DISCRIMINATORY REASON FOR THE HIRING DECISION
Even had the Petitioner made out a prima facie case of age discrimination the school board demonstrated, by Mr. Lee's testimony, as well as that of Al Evans and Richard Kizma, that Jones was not re-hired for the mechanic-carpenter position for reasons wholly unrelated to his age. He was not re-hired because the hiring supervisor made a determination, based upon his past experience with the Petitioner that he would have difficulty getting along with co-workers. That was not perceived by
Mr. Lee to be a problem attendant to hiring the successful applicant, Mr. Hayman.
The Petitioner does not dispute that two of his previous co-workers requested not to have to work in close association with him any longer. Neither is it disputed that based upon the information submitted to the board at the time the hiring decision was made, the successful applicant Mr. Hayman, apparently met the qualifications for the position. He was entitled to preference in hiring due to the fact that he was a
current school board employee at the time he made application for the position at issue.
Since the school board has articulated a legitimate, non-discriminatory reason for failing to re-hire Mr. Jones, Jones has the burden of showing that the articulated reason is a pretext for what actually was intentional age discrimination.
See Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248 (1981).
In fact under the holding in Jimenez v. Mary Washington College, 57 F.3d 369 (4th Cir. 1995), cert denied, 116 S. Ct 380 (1995), the inquiry under Title VII, 42 U.S.C. Section 200(e)(2) (and Section 760.10, Florida Statutes, (1995) which is patterned after the Federal Act), is not whether the factual basis for an employer's decision was correct or accurate, but rather whether such given reasons were a pretext for intentional discrimination. The Jimenez court held that the crucial issue in a Title VII action is an unlawfully discriminatory motive for the defendant's conduct, not the wisdom or folly of its business judgment in making the germane decision. Citing Furnco Constr. Corp v. Waters, 438 U.S. 567 577 (1978). Thus the Petitioner would have to show that the board did not genuinely believe the reason it gave for failing to re-hire him or that the articulated reason was simply a ruse to cover-up intentional age discrimination.
The Eleventh Circuit in Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1184 (11th Cir. 1984), explained the distinction
in this wise:
Title VII is not a shield against harsh treatment at the workplace . . . [n]or does the statute require the employer to have good cause for its decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason . . . [w]hile an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination. The employer's stated legitimate reason . . . does not have to be a reason that the judge or jurors would act on or approve.
The Petitioner simply did not meet this burden in the evidence he produced at hearing. He offered no evidence whatever to show that his failure to be re-hired, pursuant to Mr. Lee's opinion of his ability to get along with his co-workers, was a pretext to conceal intentional, age-related bias. See also Elrod v. Sears, Roebuck & Co., 939 F.2d 1466 (11th Cir. 1991).
Mr. Jones, at hearing, sought to present a type of evidence regarding pretext apparently designed to show that the Respondent board hired, in Mr. Hayman, an applicant who was not qualified for the position to the extent that he, Jones, purportedly was qualified. The Petitioner sought to show that Mr. Hayman had not worked for a building contractor
(Frye Builders) for 5 years and that therefore, was deficient in work experience versus the qualifications of the Petitioner himself, and that further Mr. Frye of Frye Builders had
erroneously represented to the board, by way of employment reference, the extent of Mr. Hayman's experience with his company. However, as the 11th Circuit explained in the Nix decision and in the Elrod opinion supra, it is irrelevant that the school board learned later that Mr. Hayman had indeed not worked for Frye Builders for a full 5 years. On the contrary, what was relevant and undisputed was that at the time Mr. Lee made his hiring decision he did not know that the information received from Mr. Frye regarding the duration of Mr. Hayman's employment experience was inaccurate. Moreover, the Petitioner conceded at hearing that at least two of his co-workers had indeed requested to be relieved of the responsibility of working in close contact with him, and that he had had problems with a third co-worker's work performance. The cause of those disagreements is irrelevant. The fact was that Mr. Lee genuinely believed that Mr. Jones had difficulties in working amicably with his co-workers and that is the relevant fact concerning this issue. In summary, the evidence adduced on these issues at hearing show that, at best, Mr. Lee's decision to hire Mr. Hayman instead of Mr. Jones was based upon erroneous facts but clearly was not based upon Mr. Jones' age.
Additionally, to the extent that the Petitioner is claiming that his termination from the Bicentennial Youth Park was based upon his age, he has offered no evidence to rebut the school board articulated, legitimate, non-discriminatory reason
for that action. Quite simply his discharge from that employment position and his resultant discharge from employment with the school board is based upon a lack of continued funding for that position. The only evidence presented by the Petitioner was that he believed that he was a good worker, that he had received good evaluations, that he believed that funding should have been authorized to allow for the continuation of his position at BYP, and that he was passed over for re-hire in the other position in question in favor of someone younger than he. Courts have consistently held that an employee was a good performer with good evaluations and was terminated or passed over for hire does not establish support of a claim under the above referenced statute.
In a case arising in the 8th Circuit, Hutson v. McDonnell Douglas Corp., 63 F.3d 771 (8th Cir. 1995), the court affirmed the district court summary judgment order in favor of the employer in an ADEA reduction-in-force case. In affirming the summary judgment order, the 8th Circuit noted:
Hutson's final piece of circumstantial evidence is his undisputed record of generally positive performance reviews. This evidence is particularly unpersuasive. As we have previously observed, even capable employees are released when an employer is down-sizing, and therefore evidence of competency is not particularly probative.
See, e.g., Holly v. Sanyo Manufacturing, Inc., 771 F. 2d 1161, 1166 (8th Cir. 1985)
(termination of competent employee during RIF does not raise inference of discrimination). This observation has particular force where, as in this case, the employer is engaging in a second round of layoffs, because any employee released during the second round has
already survived the first round of cuts and is therefore presumptively competent.
63 F.3d at 779. See also LeGrant v. Gulf Western Mfg. Co., 748 F.2d 1087, 1090 (6th Cir. 1984) ("The mere termination of a competent employee when a employer is making cutbacks due to economic necessity is insufficient to establish a prima facie case of age discrimination."). Similarly here, Jones was discharged simply because the school board found it economically necessary to halt funding for his position. The fact that he believed that he was a good worker, received good evaluations and disagreed with the decision to discontinue funding is not evidence of age discrimination.
The Petitioner has put forward evidence of purported comments made by Mr. Lee which he maintains support his claims of age discrimination. In essence he maintains that this infers some discriminatory animus on the part of the employer or supervisor making the employment decision at issue. Courts have held that stray comments of this sort do not constitute evidence of discriminatory animus. See Waggoner v. City of Garland, 987 F.2d 1160, 1161 (5th Cir. 1993). See also Hill v. St. Louis Univ., 123 F.3d 1114, 1119 (8th Cir. 1997)(comment by
Plaintiff's supervisor one week after plaintiff's termination that "he wanted to hire someone new to bring 'fresh blood' to the position" was an "obtuse comment simply not sufficient to give rise to an inference of discrimination . . ."); Stokes v. City of
Omaha, 23 F.3d 1362, 1367 (8th Cir. 1994)("Based on the facts of this case, an isolated question regarding Stokes' age, although improper, is not sufficient to support a finding that the City delayed Stokes' promotion because of age.").
Stray or isolated remarks concerning age are not proof of age discrimination. O'Connor v. Consolidated Coin Centers Corp., 56 F.3d 542, 549 (4th Cir. 1995)rev. On other grounds, 116 S. Ct. 1307 (1996) on remand, 84 F. 3d 718 (4th Cir. 1996). "Unless the remarks upon which plaintiff relies are related to the employment decision in question, they cannot be evidence of discriminatory intent." McCarthy v. Kemper Insurance Companies, 924 F.2d 683, 686-87 (7th Cir. 1991).
In O'Connor supra the court held that the three statements made by the plaintiff's direct supervisor did not demonstrate age discrimination. Two days before that plaintiff's discharge the supervisor said "it's about time we get some young blood in this company." Id. at 549. Two weeks before the discharge, the supervisor said to the plaintiff "O'Connor, you are too damn old for this kind of work." One or two months before the discharge, the supervisor said in connection with the plaintiff's ability to play golf, the plaintiff was just "too old" to play 18 holes a day for 5 days. Id. at 549-50. These statements were held to be insufficiently probative to raise a genuine issue of material fact that the plaintiff had been discriminated against on the basis of his age. The court
affirmed a grant of summary judgment in favor of the defendant. Id. at 550. Similarly in Wilde v. Florida Pneumatic Manufacturing Corp., 941 F. Supp 1203 (S.D. Fla. 1996), the court for the Southern District of Florida held, in an ADEA action, that a company president's statement that the company needed youth was insufficient evidence to overcome the defendant company's motion for summary judgment. The court in the opinion in the Wilde decision referenced generally decisions in seven of the federal circuits to the effect that only those comments made by decision-makers in the context of the negative employment decision itself are supportive of a prima facie case. Comments made wholly apart from the decision to dismiss or otherwise impose a negative employment action on an employee are not probative of any intent to discriminate on the basis of age.
In the instant case the Petitioner references isolated comments purportedly supportive of his claim of age discrimination. For instance, Mr. Jones testified that Buel Lee, his supervisor, made a comment about Ed Good, another mechanic- carpenter who was older than Petitioner Jones. Jones testified that there was some criticism about Mr. Good's ability and about his being too old and too slow and "they were never going to do that again." Even if it be assumed that Mr. Lee made that comment, it is insufficient to support a claim of age discrimination. There is no evidence presented as to the context in which the comment was made except that it is clear that the
comment was not made in the context of Mr. Lee's decision not to re-hire Mr. Jones the Petitioner. In fact the comment had been made several years before the time of the decision at issue, since Jones was still a mechanic-carpenter in his original job when that comment was allegedly made.
Courts have consistently held that innocuous statements such as "we need new blood in the company" do not even give rise to an inference of age discrimination. In Young v. General Foods Corp., 840 F.2d 825 (11th Cir. 1988), for example, the court held that statements made by a plaintiff's immediate supervisor that he "moved in slow motion, lacked the wherewithal to adequately perform his job" and that he "was neither aggressive nor proactive" were insufficient to support an inference of age discrimination. The court stated that "Congress made plain that the age statute was not meant to prohibit employment decisions based on factors that sometimes accompany advancing age, such as delining health or diminished vigor and competence. . ." Here the comment allegedly made regarding Ed Good was not even directed at the Petitioner Jones. Nor was it made in the context of Lee's hiring decision concerning Jones. Accordingly, consistent with the above-referenced decisional law, and in light of the undisputed fact that Lee had hired Fred Jacobs at age 57, after he allegedly made that comment, a stray comment cannot form a basis for finding any age bias as the motivating factor behind Lee's decision not to re-hire Jones.
Finally, the Petitioner testified that he believes the main reason that the board failed to re-hire him was its desire to save money by hiring a younger applicant. He believes that Lee's failure to re-hire him was linked to his age because he was closer to retirement and made a higher salary than the successful applicant. In the first instance, Jones offered no proof at hearing to support this contention that he would have retained his seniority had he been re-hired or that he would have been hired at a higher pay level. However, even assuming that the Petitioner's contention on this point is accurate it does not provide a basis for finding age discrimination. As the Supreme Court noted in Hazen Paper Co. V. Biggins, 113 S. Ct. 1701, 1707 (1993), it is not unlawful age discrimination for an employer to terminate (or here, fail to re-hire) an employee in an effort to save money, if that decision is made independent of the employee's age.
In the Hazen decision, a plaintiff had been terminated because he was close to vesting under the employer's pension plan. The employer sought to save money by termination of the plaintiff prior to his vesting in the plan. In upholding the employer's motivation on that case, the Supreme Court explained:
The instant case is illustrative. Under the Hazen Paper pension plan, as construed by the Court of Appeals, an employee's pension benefits vest after the employee completes 10 years of service with the company. Perhaps it is true that older employees of Hazen Paper are more likely to be "close to vesting" than younger employees. Yet a
decision by the company to fire an older employee solely because he has nine-plus years of service and therefore is "close to vesting" would not constitute discriminatory treatment on the basis of age. The prohibited stereotype ("Older employees are likely to be ") would not have figured in this decision, and the attendant stigma would not ensue. The decision would not e the result of an inaccurate and denigrating generalization about age, but would rather represent an accurate judgment about the employee--that he indeed is "close to vesting."
113 S. Ct. at 1707 (emphasis in original).
The Petitioner's argument that the fact that he was not re-hired because he was closer to vesting in the school board's pension plan and would have earned a higher salary means that he was not re-hired on the basis of age is precisely the argument invalidated by the Hazen decision. The Petitioner here did not present any evidence that would establish that age played any part in the decision not to re-hire him. In contrast, the school board presented ample evidence that the sole reason that Jones was not re-hired as a mechanic-carpenter was that his supervisor believed that he had difficulty getting along with co-workers. Jones presented no evidence to rebut that fact. Accordingly, for all of the foregoing reasons, the Petitioner has not established by preponderant, persuasive evidence that the school board discriminated against him on account of his age in making the re- hiring decision at issue.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That for all of the foregoing reasons, the Petitioner has not established that the school board discriminated against him because of his age in making the subject re-hiring decision.
DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998.
1/ Although Jones claims not to have signed this letter and in fact, to have just seen the letter for the first time the weekend prior to hearing, his testimony on this point is not credible.
Two witnesses, Mr. Ellis and Mr. Lee, testified that they were both present when he signed the letter. Another witness, Richard Kiszma, testified that the letter was introduced as evidence during Jones' grievance hearing and in fact it is described in the transcript of that hearing as joint exhibit 7. Finally, Jones' own attorney introduced a copy of a facsimile cover sheet showing that she received a copy of the signed letter at least by 1995, which the Respondent has represented to the undersigned, was long after the very first time the Petitioner's counsel was provided with that document by it. Moreover, whether Jones did or did not sign the letter is immaterial to the issue of his knowledge of the nature of the position, since at least 5 independent witnesses referenced above all testified that they discussed the fact that the position was temporary in nature with Mr. Jones prior to his accepting that position.
Notwithstanding the above, whether Jones knew that the position at the BYP (which was not actually the subject of this Petition for Relief) was temporary or not, has no bearing on the issues before the undersigned. The only issue before the Division of Administrative Hearings is whether Jones was discriminated against on the basis of his age when he was passed over for the mechanic- carpenter position in the facilities maintenance department in July 1994, because that was what was pled in his Petition for Relief.
2/ The fact that the BYP position was abolished due to lack of funding is not the adverse employment action properly at issue in this case. It was never raised in the Petition for Relief and no evidence was presented to rebut the school board's articulated, legitimate, non-discriminatory reason for the lack of funding, that is, that the Budget Committee reviewed the request for more money for that position and denied it as a matter of priorities versus needs for a new school, buildings, and maintenance.
Kelly L. Soud, Esquire Thomas M. Gonzalez, Esquire
Astrid DeParry, Esquire Astrid DeParry, P.A.
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
