vs.
Respondent.
) Case No. 03-0139
Upon due notice, a disputed-fact hearing was conducted in this case on April 7, 2003, in Tallahassee, Florida, before the Division of Administrative Hearings by its duly-assigned Administrative Law Judge, Ella Jane P. Davis.
For Respondent: Joseph B. Donnelly, Esquire, and
Whether Respondent is guilty of an unlawful employment practice by discrimination against Petitioner on the basis of age.
Petitioner's Charge of Discrimination was filed with the Florida Commission on Human Relations on August 1, 2001. "Age" was the only basis of discrimination alleged. The Charge states that the alleged discrimination relates back to Petitioner's termination, effective August 7, 2000.
On December 10, 2002, the Commission entered a Notice of Determination: No Cause, and on or about January 16, 2003, the Commission forwarded the Petition for Relief to the Division of Administrative Hearings. The Petition's filing date with the Commission cannot be determined from this record. The only basis of discrimination alleged in the Petition is "age."
The merits hearing was continued once for four days, due to emergency surgery of a member of Respondent's attorney's immediate family. The ultimate date selected was agreed-to by Petitioner.
At the commencement of hearing, Kathy Webster, Certified Legal Intern, was accepted as a Qualified Representative of Respondent for this case.
13 exhibits admitted in evidence. Respondent presented the oral testimony of Petitioner and Fran Harley, and had three exhibits admitted in evidence. Respondent filed, in open court, a "Hearing Brief," primarily directed to Respondent's oral motion
to dismiss the Charge of Discrimination as allegedly barred by the statutory filing period. (See Finding of Fact 32 and the Conclusions of Law.)
A Transcript was filed on May 9, 2003. The parties had stipulated to 30 days thereafter for the filing of proposed recommended orders. As of June 9, 2003, only Respondent had filed a Proposed Recommended Order. It has been considered.
Petitioner is a Caucasian male, who at all times material was over 50 years of age. His date of birth is February 27, 1946.
Petitioner was hired in 1995, to work for Respondent Florida State University (University) as "Coordinator, Environmental Health and Safety-Asbestos Control." During Petitioner's employment, the University classified this position as an Administrative and Professional position within the Industrial Hygiene Section of the University's Department of Environmental Health and Safety (DEHS). It was considered a "scientific" position.
Petitioner was hired by a contract, which was renewed annually, in August of each year, by Fran Harley, DEHS Department Head.
Prior to August 2000, the Industrial Hygiene Section consisted of three employees in three positions:
Position 54606: Coordinator, Environmental Health and Safety, Roy Brogan.
Position 54100: Coordinator, Environmental Health and Safety--Asbestos Control, Petitioner Kiesling.
Position 60787: Senior Environmental Health and Safety Specialist, Jamie Delissio.
Petitioner's position description required him to manage the University's asbestos and lead abatement programs. Due to the dangerous nature of asbestos removal, by Florida law, only persons licensed as Certified Safety Professionals (CSPs) or asbestos consultants can design and implement asbestos abatement projects.1/ Because Petitioner was not licensed for this function of ensuring public health, he served as the University's in-house representative to monitor outside licensed contractors/consultants and University employees involved in eliminating asbestos and lead problems.
At some point, Petitioner was also assigned to develop and implement a training program for University employees in asbestos and lead awareness.
Roy Brogan was Petitioner's immediate superior until Mr. Brogan quit in June 2000. Petitioner's August 1997 Annual Performance Review reflects Mr. Brogan's opinion that Petitioner had repeatedly failed to establish a University asbestos awareness training program. At hearing, Petitioner did not dispute that he had never developed such a program, but
testified to a number of reasons why he had not completed the assignment.
Mr. Brogan's 1996-1997 Review rated Petitioner "unsatisfactory" in the effectiveness category (P-12B). Testimony suggests that Petitioner received other critical reviews from Mr. Brogan. However, all Petitioner's reviews were at least rated overall "satisfactory," and he continued to receive annual pay increases. At no time did Petitioner complain to Ms. Harley about the score(s) given him by Mr. Brogan or seek to have it/them recalculated.
At hearing, Petitioner contended that Ms. Harley also rated Mr. Brogan "unsatisfactory" in one category, and that Mr. Brogan still had gotten an overall "above satisfactory" rating. Petitioner is correct in this assertion for Mr. Brogan's 1998- 1999 Annual Review (P-12A), except that on this review of Mr. Brogan, the category is labeled "needs improvement/unsatisfactory."
Petitioner also contended that in a single year, Division Director Harley had evaluated Mr. Brogan, then approximately 34 years old, as 2.4 on a scale of one to four, "two" being "satisfactory" and "three" being "above satisfactory," and that Ms. Harley had rounded 2.4 into an overall "above satisfactory" rating for Petitioner's younger supervisor, Mr. Brogan, whereas Mr. Brogan, himself, had rounded
the 2.5 score Mr. Brogan had given Petitioner down to merely an overall "satisfactory." The exhibits do not entirely support this construction by Petitioner of his and Mr. Brogan's respective evaluation ratings. Mr. Brogan's Annual Review of Petitioner (P-12B) is his 1996-1997 Review. Ms. Harley's Annual Review of Mr. Brogan (P-12A) is dated August 7, 1998-August 6, 1999. Therefore, they are not reviews covering the same year.
Also, the two men were rated "unsatisfactory" in different categories, and Mr. Brogan's "unsatisfactory" category also embraced the concept of "needs improvement." Nonetheless, Petitioner is correct that Ms. Harley's rounding-up of her 2.4 rating of Mr. Brogan to overall "above satisfactory," and Mr. Brogan's rounding-down of his 2.5 rating of Petitioner to overall "satisfactory," do not compute with the normal method of rounding numbers. Mr. Brogan's score of 2.4 might be more mathematically correct if it had been rounded-down to an overall "satisfactory," whereas Petitioner's score of 2.5 might be more mathematically correct if it had been rounded-up to an overall "above satisfactory."
Petitioner perceived Ms. Harley's rounding-up of Mr.
Brogan's lower score and Mr. Brogan's rounding-down of Petitioner's higher score as constituting an inequity based upon age. Obviously, if pure mathematics is applied, both Ms. Harley and Mr. Brogan erred in different ways with their rounding-off
of their subordinates' respective scores, but their erroneous "rounding" methods could just as easily be the result of bad mathematics as age discrimination, and there is no indication of age discrimination in the two reviews. Age discrimination cannot be presumed simply from the fact that Mr. Brogan was younger than Petitioner and outside the protected age group. It also is noted that Ms. Harley's Review of Mr. Brogan was originally calculated at "2.04" instead of "2.4", and this is more indicative of mathematical problems than of discrimination.
There is no evidence that Petitioner suffered any monetary disparity or disparity in job privileges as a result of his score.2/ There is no evidence he timely brought the perceived discrimination to either superior's attention. Moreover, the respective evaluation scores assigned to Petitioner and Mr. Brogan have no significance for purposes of this case, because Petitioner and Mr. Brogan were not similarly- situated employees; because Petitioner and Mr. Brogan were not (inequitably) rated by the same supervisor; and because Petitioner never raised the issue with their mutual superior, Ms. Harley. Accordingly, no nexus of Petitioner's and Mr. Brogan's scores, rounded or otherwise, to age discrimination has been demonstrated.
Beginning with the August 13, 1998, contract, Petitioner's contract with the University stated, in pertinent
part:
This employment contract creates no expectancy of employment beyond the terms stated herein. The University, at its option, may non-renew the contract by giving at least six (6) months' notice if the employee has more than one (1) year of service in the A&P plan with the
University . . .
DEHS Department Head, Fran Harley, made the unilateral decision not to renew Petitioner's contract. She was 51 years old at the time. Petitioner was 53 years old at the time. Ms. Harley testified credibly that her decision was not related in any way either to Petitioner's age or his performance ratings, as such. She believed, as Petitioner did, that they had a good working relationship. Ms. Harley made the decision to terminate Petitioner because she also had made the decision to reorganize her department for greater efficiency. If anything, her decision was based more on an intent to increase departmental efficiency than on any individual inefficiency she detected in Petitioner.
Ms. Harley's reorganization effort addressed several departmental issues, including the inability to manage asbestos and conduct asbestos training on campus; the benefit of hiring a licensed asbestos consultant or CSP to improve productivity and
save costs; and the desirability of updating and refining the Asbestos Awareness Training curriculum.
While Petitioner was employed, the University had been hiring a CSP or asbestos consultant for each of its asbestos jobs, in addition to hiring a contractor. Director Harley had decided to eliminate this expenditure by hiring a CSP to work "in-house."
Petitioner was informed of Ms. Harley's decision not to renew his employment contract in a meeting with her on January 21, 2000.
Petitioner was also sent a letter, dated January 21, 2000, which provided the following material information:
This letter serves to advise you that your appointment as Coordinator, Environmental Health and Safety in the Department of Environmental Health and Safety will not be renewed beyond August 7, 2000. . .
The action to non-reappoint you beyond the above stated date is without cause and will best serve the interests of Florida State University.
At hearing, Petitioner admitted he understood he would not continue to be employed if his contract were not renewed.
Jamie Delissio, Senior Environmental Health and Safety Specialist in the Industrial Hygiene Section, voluntarily resigned in April 2000. Ms. Delissio was approximately 45 years old at the time. This left Position 60787 vacant.
Petitioner had admitted in evidence a course certificate showing that Mr. Brogan completed, on March 9, 2000, the requisite training for "Asbestos Accreditation Under TSCA Title II for the 'Asbestos Abatement Project Designer Course.'" Petitioner contended that Mr. Brogan had received this training on the University's time and at the University's expense. He also contended that Mr. Brogan was being trained by the employer University to get his Florida CSP or asbestos consultant's license, but it was never shown that the course taken by Mr. Brogan was sufficient, by itself, to achieve a CSP or Florida asbestos consultant license.3/
Petitioner felt he had been discriminated against because the employer did not similarly educate/train him. Petitioner testified that he thought he had a college education equivalent to Mr. Brogan's college education and therefore believed himself eligible to take courses toward a CSP or asbestos consultant license. He felt he could complete the necessary course work in a year's time if his courses were financed by the University. Ms. Harley testified that the University had paid for various courses which it believed would enhance Mr. Brogan's performance in his existing University position, as that position existed while Mr. Brogan was employed up to June 2000, and that Mr. Brogan had told her he was also attempting to become CSP-licensed in Florida. She did not know
whether the University had paid for Mr. Brogan's March 2000 training or even if the exhibit in question (P-6) constituted all or part of the training necessary for licensure under Chapter 469.4/ It was not affirmatively demonstrated that Petitioner had ever requested training equivalent to Mr.
Brogan's training or any training paid for by the University prior to August 7, 2000.
Mr. Brogan, who had been Petitioner's immediate supervisor in the Industrial Hygiene Section, resigned in June 2000, to take another job. His resignation left Position 54606 vacant as of June 2000.
Petitioner's contract expired, by its own terms, on August 7, 2000. The University elected not to renew Petitioner's services when his contract expired. The University had already complied with the employment contract by providing notice of its decision on January 21, 2000. Petitioner was 54 years old as of his termination. Non-renewal/termination left Position 54100 vacant as of August 7, 2000.
Petitioner testified that he is not now, and at no material time was, a CSP.5/
To eliminate paying for both an "in house" monitor and a private consultant, Ms. Harley had added the same duties to an existing position, the position vacated voluntarily by Mr. Brogan, Position 54606: Coordinator, Environmental Health and
Safety, and reclassified that position. The new position description required that the person performing its duties be a
CSP.
The process of reclassifying Petitioner's Position
54100, became effective March 9, 2001, seven months after Petitioner's contract was terminated. In March 2001, Petitioner's former position 54100, which had been vacant since August 7, 2000, was effectively reclassified as Coordinator of Administrative Services, and moved out of the Industrial Hygiene Section and into the Administrative and Training Support Section of the Department. As such, it became an administrative, as opposed to a scientific, position.
The Industrial Hygiene Section was thereby reduced from three positions/three employees, to two positions/two employees. The remaining positions within the Industrial Hygiene Section were Position 54606: Coordinator, Environmental Health and Safety, with new requirements, including CSP status, and Position 60787: Senior Environmental Health and Safety Specialist.
The Department advertised for the Coordinator, Administrative Training and Support Services position (54100). Petitioner did not apply. Petitioner viewed this as an administrative instead of a scientific position, as reorganized, which it is. Approximately June 2001, Kelita Pete, female, age
not disclosed, was hired as Coordinator, Administrative and Training Support. Ms. Harley considered Ms. Pete's resume to indicate she was qualified for the position, as reorganized.
Mark Klawinski, male, age undisclosed but apparently younger than Petitioner, was hired in November 2000, in Mr. Brogan's old Position 54606: Coordinator, Environmental Health and Safety. Mr. Klawinski possesses a master's degree in public health and is both a CSP and a Florida-licensed asbestos consultant. As such, he can sign-off on the University's asbestos projects, thus eliminating the University's need for outside consultants and increasing the capabilities of the University's Industrial Hygiene Section and DEHS. He also has assumed responsibility for compliance with the Occupational Safety and Health Act (OSHA), including its asbestos and lead abatement regulations.
Mr. Klawinski now has one assistant in the Industrial Hygiene Section, filling Position 60787, Senior Environmental Health and Safety Specialist, Ms. Delissio's old position. When this position was filled is not clear from the record. It does not affirmatively appear that Petitioner applied for it.
Petitioner filed his Charge of Discrimination on the basis of age with the Florida Commission on Human Relations on August 1, 2001, which is within 365 days of August 7, 2000, but not within 365 days of January 21, 2000. The Commission
apparently entered its December 10, 2001 Determination: No Cause on the merits, not on the basis of any failure to timely file the Charge. The Petition for Relief was not proven to be untimely under the rules of the Commission.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1) and Chapter 760, Florida Statutes.
Respondent maintains that because Petitioner filed his claim of age discrimination within 365 days from his actual termination date of August 7, 2000, but not within 365 days of the January 21, 2000 notification of that termination date, his claim is barred by Section 760.11(1), Florida Statutes. Respondent relies upon St. Petersburg Motor Club v. Cook, 567 So. 2d 488, (Fla. 2d DCA 1990).
It is acknowledged that the Cook court ruled that,
We must focus upon the time of the discriminatory act, not upon the time at which the consequences of the act became most painful, and accordingly, the limitations period commenced to run no later than the date on which the board of directors clearly established its official position as it related to the appellee and notified her.
However, the Cook case is distinguishable from the one at bar and does not support a dismissal herein.
In Cook, the employer enacted a no-nepotism rule in 1984. On July 4, 1985, the appellee employee married another employee and by the terms of the no-nepotism rule was required to resign within six months of July 4, 1985, or by January 4, 1986. Instead, the employee continued in her employment and sought a waiver of the rule. On November 16, 1985, the employer's board of directors informed her that the rule would not be waived but would be enforced, thereby effectively forcing her resignation on or before the pre-established resignation date. The Second District Court of Appeal ruled that the employee's period for timely filing of her charge of discrimination ran from November 16, 1985, which was the date of the employer's decision to enforce its existing policy and the date of its notification to the employee of that decision.
Thus, the time for filing the charge of discrimination ran from the date of notification to the employee that the rule would not be waived. It did not run from the date the rule was enacted, the date of the marriage, or the date of the employee's resignation in compliance with the rule.
Herein, Respondent asserts that the time for the filing of Petitioner's Charge of Discrimination ran from January 21, 2000, the date of the letter notifying Petitioner that the University intended to let his contract run out on August 7, 2000, without renewal. Petitioner has argued that the
University could have changed its mind up until August 7, 2000. For most cases, Respondent's argument belongs in the human sphere of wishful thinking rather than within the rigid parameters of contract law. However, because there is clear evidence that Petitioner's position was not effectively reclassified until March 9, 2001; because there is no clear evidence of when Mr. Brogan's position was effectively reclassified; and because there is clear evidence that Mr.
Klawinski was not hired until November 2000, Petitioner's theory that nothing was certain with regard to his future, at least until August 7, 2000, becomes a viable theory in this case.
Here, the August 7, 2000, contract expiration date equates with the November 16, 1985, date of certainty that Cook's employer would not change its mind and grant a waiver of its rule. The thrust of the Cook opinion is that the time for filing a charge of discrimination begins to run on the date that the adverse employment decision becomes irrevocable. In the instant case, the date that the adverse employment decision became irrevocable was when Petitioner's position began to be metamorphosed by termination of his contract, effective August 7, 2000.
Petitioner's charge of discrimination was filed within 365 days of August 7, 2000, and that filing is timely under the unique circumstances of this case. The oral motion to dismiss for untimeliness is denied.
It is an unlawful employment practice for an employer to discriminate against any individual with respect to terms, conditions, or privileges of employment on the basis of age. See Section 760.10(1)(a), Florida Statutes.
In Florida, an employee at will may be terminated at any time for a good reason, a reason based on erroneous facts, a bad reason, or no reason at all, so long as it is not a statutorily proscribed discriminatory reason. Nix v. WLCY Radio Rahall Communications, 738 F.2d 1181 at 1182, (11th Cir. 1989). See also Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). Petitioner herein was not an employee at will. He was an employee by contract. As such, he had only the protections of the contract. The terms of the contract were that the University could terminate his contract on six months' written notice at any time for the good of the University. Bound by that contract, he has no recourse here unless it can be shown that age discrimination was the University's reason for non- renewal/termination of his contract.
The Florida Civil Rights Act, Section 760.01, et seq, is patterned after Title VII of the Federal Civil Rights Act, 42
Section 2000E, et seq. Federal case law interpreting Title VII and similar federal legislation is applicable to cases arising under the Florida Act. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA
1991), School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990).
Under Chapter 760, Florida Statutes, Petitioner meets the definition of "employee," and Respondent meets the definition of "employer." Petitioner also is a member of an age group protected against discrimination. Verbergraekin v.
Westinghouse Electric Corp., 881 F.2d 1041 (11th Cir. 1989).
Petitioner's charge of discrimination only addresses termination on the basis of age. His Petition for Relief only addresses termination on the basis of age. No inequitable treatment prior to August 7, 2000, was raised in either pleading.
At the disputed-fact hearing, Petitioner raised an issue of discrimination via his 1996-1997 Annual Review. Assuming arguendo, but not ruling, that Petitioner's charge of discrimination/petition for relief herein ever contemplated that issue, for all of the reasons set forth in Findings of Fact 7, and 11-12 supra., not even a prima facie case of age discrimination has been presented concerning any annual review. Petitioner's suggestion that the University was training Mr. Brogan to become a CSP was not proven. If the continuing professional education the University provided for his position also helped Mr. Brogan achieve certification or licensure, that effect was peripheral, but not intentional, from the
University's perspective. It was not established that Petitioner was also eligible for such funded continuing education in his position or that he ever requested it.
On the issue of termination, Petitioner has the burden of proof to show that he was discriminated against on the basis of age. To establish a prima facie case of age discrimination, Petitioner must show that he (1) was a member of a protected group, (2) was subjected to adverse employment action, (3) was qualified to do the job, and (4) lost the position to a younger individual. Williams v. Vitro Services Corp., 144 F.3d 1438, 1441 (11th Cir. 1998); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 668 (1973).
Petitioner has presented no direct evidence of age discrimination by Respondent. The record does not indicate any remark or action concerning age directed at Petitioner.
As to circumstantial evidence, Petitioner has not proven that he was qualified for a job for which a younger person was hired. Petitioner has not proven that he was qualified to fill either Position 54606: Coordinator, Environmental Health and Safety, as that position's duties existed in Mr. Brogan's tenure, which ended in June 2000, or as reconstituted and reclassified by the time Mr. Klawinski was hired in November 2000. Apparently, Respondent did not fill that position until it was reclassified and Petitioner did not
apply for it because he could not meet the new requirement of being a CSP.
Petitioner also did not apply for the reclassified job of Coordinator, Administrative Training and Support, which bore his old position number 54100, but which was no longer a "scientific position" for which he was qualified.
Since Petitioner presented no affirmative evidence that he applied for Position 60787, held now by the subordinate to Mr. Klawinski, it must be assumed he did not apply, and therefore, whether he was, or was not, qualified for that position is immaterial.
Further, Petitioner also cannot prove a prima facie case of age discrimination under the test assigned to cases involving reduction of an employer's work force or the elimination of a position. Williams v. Vitro Services Corporation, supra. To do so, Petitioner must establish (1) that he was in a protected age group and was adversely affected by an employment decision, (2) that he was qualified for his current position or to assume another position at the time of discharge, and (3) that there is evidence by which a fact-finder reasonably could conclude that the employer intended to discriminate on the basis of age in reaching that decision. Williams, 144 F.3d at 1441.
While Petitioner may have been qualified for Position 54100 as of his August 7, 2000, termination date, the job itself was reclassified and moved to Administrative Training and Support. Petitioner testified he was not qualified to assume this job as reclassified. Likewise, Petitioner has not shown that he was qualified to assume another position at the time of termination.
Most importantly, there is no evidence that the decision to downsize the Industrial Hygiene Section and eliminate Petitioner's job was based on an intentional decision to discriminate against Petitioner due to his age.
The newly reorganized position filled by Mr. Klawinski did include Petitioner's former duties, but it entailed other functions as well. Some of these functions required licenses and/or certificates which Petitioner did not, and does not, hold. Moreover, even if there was a similarity of function, a case has arguably been made that Mr. Klawinski was otherwise more highly qualified than Petitioner by virtue of his Master's degree.
Assuming, arguendo, that Petitioner has made a prima facie case of age discrimination with regard to his termination, the burden would then shift to Respondent to articulate a legitimate, non-discriminatory reason for its failure to hire him. Department of Corporation v. Chandler, 582 So. 2d 1183
(Fla. 1st DCA 1991); McDonnell Douglas Corporation v. Green, supra.
Respondent met its burden under the Chandler test by adequately articulating a legitimate non-discriminatory reason for reorganization and for hiring Mr. Klawinski instead of Petitioner.
When an employer produces evidence of a legitimate non-discriminatory reason for its actions, any prior presumption of discrimination is eliminated, and the employee must then prove by a preponderance of the evidence that the explanation given was not its true reason, but was in fact, a pretext for discrimination. "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Department of Corrections v. Chandler, supra. Petitioner did not meet this shifted burden.
"Conclusory allegations of [age] discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination where [the employer] has offered extensive evidence of legitimate, non-discriminatory reasons for its actions." Isenbergh v. Knight-Ridder Newspaper
Sales, Inc., 97 F.3d 436 (11th Cir. 1996).
An employee's feelings and perceptions of being discriminated against are not evidence of discrimination. Bickerstaff v. Vassar College, 196 F.3d 435 (2nd Cir. 1999).
Even if Petitioner had proven a prima facie case of age discrimination, reduction in force, or downsizing, is recognized as a legitimate, nondiscriminatory reason for dismissing an employee and acts as an effective defense against discrimination claims. Watkins v. Sverdrup Technology, Inc.,
153 F.3d 1308 (11th Cir. 1998); Tidwell v. Carter Products, 135 F.3d 1422 (11th Cir. 1998). See also Furr v. Seagate
Technology, Inc., 82 F.3d 980, 986 (10th Cir. 1996), holding that "the manner in which a company chooses to conduct a [reduction in force] is within the company's sound business discretion." Further, "in the absence of any evidence of an illegal ulterior motive, courts and juries cannot presume to question the business judgment of company managers." Id. at 987.
Herein, the major motivation in the University's reorganization was not primarily a reduction in force, but was efficiency-based on a similar principle: reducing the need for outside contractors or eliminating redundancy. The controlling concept is that the reorganization was a management decision, irrespective of Petitioner's age, and "Courts do not sit as a super-personnel department that reexamines an entity's business
decisions." Ghosh v. Indiana Department of Environmental Management, 197 F.3d 1087 (7th Cir. 1999)
Petitioner has not presented any evidence to refute Respondent's proffered reason for its employment decision. Respondent has only the burden of production, not of persuasion. However, the University's explanation also has been persuasive.
In making the foregoing assessment, Reeves v.
Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, (2000), the case orally cited by Petitioner at the disputed-fact hearing, has been considered. Greatly simplified, that case stands for the proposition that it is unnecessary for a Petitioner to put on specific evidence to refute the employer's proffered reasons for its employment decision if the evidence as a whole convinces the trier of fact that the employer's reasons are not credible or are pretextual. That case would not change the outcome here because Ms. Harley's testimony is concluded to be credible. 6/
RECOMMENDED: that the Florida Commission enter a final order dismissing the Charge of Discrimination and Petition for Relief.
DONE AND ENTERED this 20th day of June, 2003, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 20th day of June 2003.
1/ Section 469.003(1), Florida Statutes, provides, "No person may conduct an asbestos survey, develop an operation and maintenance plan, or monitor and evaluate asbestos abatement unless trained and licensed as an asbestos consultant as required by this Chapter."
Section 469.004(1), Florida Statutes, requires all asbestos consultants to be licensed by the Department of Business and Professional Regulation. Licenses can only be issued to a select group of people, one category of which is a Certified Safety Professional as designated/certified by the Board of Certified Safety Professionals.
2/ On the basis of this record, it would be pure conjecture to assume Petitioner would have received a greater pay increase if he had received an overall "above satisfactory" rating in 1997.
4/ See n. 3, above.
5/ It is noted that Petitioner's 1995 job application (P-1) shows him as possessing "Asbestos Abatement: Project Management and Supervision License No. 1203-4065; April 5, 1991." The effect of such a license is not explained in the record. It was not shown in this record that Petitioner still has this license. Petitioner did not assert any current eligibility for a CSP or for an asbestos consultant license based this license. It was not demonstrated how such a license might or might not be "grandfathered" into Chapter 469, Florida Statutes' licensing system. See Sections 469.003, 469.004, 469.005, and 469.013, Florida Statutes.
255 (C.A.1 1994). Age Discrimination in Employment Act of 1967, Section 4.(a)(1), 29 U.S.C.A. Section 623 (a)(1); Civil Rights Act of 1964, Section 703(a)(1), 42 U.S.C.A. Section 120 S. Ct. 2907.
Fact-finders' rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for employment discrimination plaintiff, as the ultimate question is whether the employer intentionally discriminated and proof that the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that plaintiff's proffered reason is correct; in other words, it is not enough to disbelieve employer, but, instead, the fact-finder must believe plaintiff's explanation of intentional discrimination. Age Discrimination in Employment Act of 1976, Sections 4(a)(1), 29 U.S.C.A. Section 623(a)(1); Civil Rights Act of 1964, Section 703(a)(1), 42 U.S.C.A. Section 2000e- 2(a)(1).
It is permissible for the trier of fact in employment discrimination case to infer the ultimate fact of discrimination from the falsity of the employer's explanation; proof that defendant's explanation is unworthy of credence is simply one
form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive, Age Discrimination in Employment Act of 1967, Section 4(a)(1), 29
U.S.C.A. Section 2000e-2(a)(1).
29 U.S.C.A. Section 623(a)(1); Civil Rights Act of 1964, Section 703(a)(1), 42 U.S.C.A. Section 2000e-2(a)(1).
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Joseph B. Donnelly, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
