vs. )
Respondent. )
Case No. 03-3144
Pursuant to notice this cause came on for formal proceeding and hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted January 23, 2004, in Tavares, Florida. The appearances were as follows:
For Respondent: Steven W. Johnson, Esquire
McLin & Burnsed, P.A. Post Office Box 491357
The issue to be resolved in this proceeding concerns whether the Petitioner was discriminated against based upon his
age, in the manner addressed by Section 760.10, Florida Statutes.
This cause arose upon the filing of a Charge of Discrimination with the Florida Commission on Human Relations (Commission) on June 10, 2002. The Petitioner is Michael George, at times pertinent hereto a employee of the City of Leesburg, Florida. On December 9, 2002, the Petitioner filed an Amended Charge of Discrimination with the Commission. That amended charge alleged that the City of Leesburg (City, Respondent) had discriminated against the Petitioner based upon his age, by discharging him from employment and replacing him with someone much younger.
An investigation was performed by the Commission which ultimately issued a determination of "no cause" on July 28, 2003. The Petitioner filed the subject Petition for Relief on August 27, 2003. On September 22, 2003, the Respondent filed an Answer to the Petition for Relief and a Motion to Dismiss, ruling on which was reserved until the hearing on the merits.
After one continuance, at the request of the Respondent, for good cause shown, the cause was ultimately heard on January 23, 2004. Upon the cause coming on for hearing as noticed, the Petitioner testified on his own behalf and presented the testimony of five witnesses. The Respondent cross-examined the
witnesses presented by the Petitioner and called one witness in its own case. The Petitioner offered two exhibits which were admitted into evidence and the Respondent offered eleven exhibits which were admitted into evidence.
Upon conclusion of the proceeding a transcript thereof was ordered. Proposed findings of fact and conclusions of law in the form of proposed recommended orders were scheduled to be submitted by the parties and a Proposed Recommended Order was submitted by the Respondent. It has been considered in the rendition of this Recommended Order.
The Petitioner was an employee of the City of Leesburg at times pertinent hereto. He was employed as a waste water operator trainee, commencing employment on or about June 5, 2000. The Respondent is a city government and unit of local government which operates two waste water plants. At times material to this proceeding the Respondent was employed and assigned to the "Canal Street Plant." The Petitioner was required to perform several job functions in his capacity as a waste water operator (trainee). Respondent's Exhibit Nine, in evidence, provides a job description for the Petitioner's employment positions which include the following: Record all flows; constantly survey charts and meter readings; repair leaking waste water pipes; perform building maintenance chores;
maintain vigilance over all the department facilities and log or report any unusual situations; take oral and written instructions and carry them out in a quick and responsible manner; load and unload lawn cutting equipment, and cut and trim grass at utility plant sites; make repairs and/or replace parts on plant equipment; and repair leaks and other operations as directed.
That job description also required a trainee to have knowledge of the functions and mechanics of pumps and other waste water plant equipment, knowledge of the occupational hazards and safety measures required in plant operations; to have an ability to detect faulty operating characteristics in equipment and to institute remedial action. The trainee is also required to be able to read meters, chart accurately and to adjust procedures to meet plant volume requirements. He must have an ability to understand and follow oral and written instructions.
The Respondent's personnel policies and procedures manual (manual), in evidence as Respondent's Exhibit Eight, states at Policy No. 600.2(13) that "poor performance" is a violation of policy sufficient to initiate discipline. Poor performance is described in that section as a failure to perform assigned duties according to prescribed dimensions and standards on the individualized performance plan. Policy No. 600.2
provides for progressive discipline ranging from a verbal warning, to a written warning, a one-to-three day suspension, a four-to-five day suspension, or termination. Thus the discipline for violation of that policy is a range of appropriate actions from verbal warning to termination.
On or about July 11, 2001, the Petitioner was the subject of a corrective action performance evaluation by his supervisor, Bob Mirabella. Mr. Mirabella, the Respondent's Operations Supervisor, accorded the Petitioner a grade of zero in several categories of work performance. Those are deficiencies indicating the Petitioner's lack of understanding of basic concepts related to his job position, including failure to following instructions, difficulty making simple decisions, difficulty or failure in following standard procedures, and a poor attitude. Overall his evaluation shows a rating of the Petitioner's performance as "unacceptable."
That corrective action evaluation also contains a section that the Petitioner and his supervisor must initial, indicating that the Petitioner had reviewed the evaluation and that the performance deficiencies had been communicated to him. Mr. Mirabella advised the Petitioner of corrective measures to take and that any continued failure to meet expectations might result in termination. Mr. Mirabella created a type-written plan of improvement for the Petitioner with remedial activities,
objectives, and developmental activities. Under the Respondent's consistent policy, the action plan would have been reviewed in 60 days, September 11, 2001, in order to determine that the Petitioner was meeting those expectations.
On August 13, 2001, the Petitioner received a written reprimand for failure to perform duties assigned to him on
July 23, 25, and August 9, 2001. These were duties that were in accordance with the prescribed dimensions and standards of the individual performance plan for the Petitioner. The written reprimand, in evidence as Respondent's Exhibit Two, included a description of the Petitioner's failure to perform duties including lawn maintenance, and again cited his argumentative attitude.
On August 29, 2001, the Petitioner received a three-day suspension from duties for failure to perform assigned duties according to prescribed dimensions and standards as set forth in the individual performance plan. The disciplinary action form, in evidence as Respondent's Exhibit Three, specifically referred to the Petitioner's failure to perform lawn maintenance duties, failure to follow established rules and policies, and failure to take appropriate action to correct a leaking pump. It was also noted that the Petitioner was making coffee and watching television instead of performing assigned duties.
Mr. Mirabella created a performance evaluation summary in preparation for the Petitioner's September 11, 2001, 60-day review of the initial, unsatisfactory evaluation of July 11, 2001. The summary showed a continuation of the Petitioner's difficulties and problems both in understanding his job and in dealing with other people in the course of his duties. The summary cited an incident where the Petitioner was abrasive, including swearing, toward other employees. It was
Mr. Mirabella's intention to give the Petitioner a written reprimand regarding the swearing incident. However, due to the emergency nature of the events occurring on September 12, 2001, at the waste water plant, the written reprimand was not completed prior to the beginning of the investigation that ultimately led to the Petitioner's termination. The Petitioner made no major progress in correcting any of the problems outlined in the action plan that constituted part of the
July 11, 2001, evaluation.
On or about September 12, 2001, it was determined that there was a near overflow of sewage at the Canal Street Plant. Scott Moss, the employee who worked on the morning shift on September 13, 2001, discovered the problem and took corrective action immediately. Mr. Mirabella learned of the problem and reported it to the Respondent's Director of Environmental Services, Susanna Littell.
Upon learning of the potential overflow occurrence, Ms. Littell began an investigation to determine when the overflow problem occurred. She gathered plant flow information and took measurements of the tanks. Employing engineering calculations, based upon the flow rates at the plant,
Ms. Littell was able to determine that the problem had occurred on the Petitioner's shift. The Petitioner was the only employee on duty at the time the problem occurred.
Ms. Littell consulted two outside engineers (non-city employees) to review her calculations. Those engineers found that her calculations were accurate. According to Ms. Littell, the waste water employees on duty at the plant should have observed the valve positions or otherwise noticed a problem in the plant that needed remediation. This was a regular part of their assigned duties, including the Petitioner.
Mr. Mirabella determined a number of valves had been changed, which had caused the "aereation bay" to begin to fill with waste water. The aereation bay almost overflowed, which would have caused a serious environmental hazard and damage. It would have caused irreparable harm to the credibility of the waste water department, and could have engendered a minimum of
$10,000.00 dollars in fines imposed by the Department of Environmental Protection. The importance of preventing these
types of situations has been emphasized to employees who worked at the waste water plant, including the Petitioner.
Because of the Petitioner's failure to notice the obvious serious problem occurring at the plant on his shift, and his failure to take corrective action, he was cited for negligence in performing his assigned duties in violation of the Respondent's policy. The employee who worked as his counter- part on the shift immediately after the Petitioner's, Elmer Wagner, was also cited for negligence in performing his duties because of his failure to notice the problem and to take corrective action. Mr. Wagner at the time in question was 67 years of age.
The information obtained during Ms. Littell's investigation was forwarded to Ms. Jakki Cunningham-Perry, the Respondent's Director of Human Resources, in order for her to determine the appropriate disciplinary action to take.
Ms. Cunningham-Perry performed an investigation of the September 12, 2001, incident. She spoke to several individuals, including, but not limited to, Mr. Mirabella, Ms. Littell,
Jim Richards, who was one of the engineers consulted by Ms. Littell, as well as the Petitioner. She thereafter
deliberated and prepared a written memorandum setting forth her investigative findings. Ms. Cunningham-Perry concluded that the closing of the valves occurred during the Petitioner's
shift. She also concluded that Mr. Wagner should have noticed the change in the pump flow and valves during his shift.
Both the Petitioner and Mr. Wagner were cited for failure to perform assigned duties in violation of city policy 600.0(13), as a result of the investigation performed by
Ms. Cummingham-Perry. She reviewed the personnel history of both the Petitioner and Mr. Wagner in order to determine the appropriate levels of discipline. The Petitioner's prior history included the special corrective action evaluation of July 11, 2001, indicating unacceptable performance; the August 13, 2001, written reprimand for violation of policy
600.2(13); and the suspension for violation of that same policy. In light of the past performance of the Petitioner, as well as the September 12, 2001, incident, Ms. Cunningham-Perry recommended that he be terminated.
On November 30, 2001, the Petitioner was terminated from his employment with the Respondent. The Petitioner's last day on the payroll with the Respondent was December 6, 2001.
Mr. Wagner is older than the Petitioner and has had an exemplary performance record with the Respondent City. He never had any disciplinary problems on his record for 15 years of his employment with the Respondent. Because of his theretofore spotless employment disciplinary record, he was given a written
reprimand as a result of his negligent performance of job duties on September 12, 2001.
No evidence was adduced indicating that the Respondent treated any employees over the age of 40, including the Petitioner, any differently than employees under the age of 40. During the relevant time period the Respondent had approximately
22 employees in the waste water department. Fifteen of those 22 employees were over the age of 40.
The Petitioner actually produced no evidence in his case establishing his date of birth or age. There is no evidence that the Petitioner's age was considered or was a factor in his termination decision. The decision to terminate him was based solely on his failure to perform assigned duties and his prior performance record.
Moreover, the Petitioner adduced no evidence to show that he was replaced or otherwise lost his position to a younger individual. The individual who became a waste water trainee after the Petitioner's termination was Scott Moss. Mr. Moss is currently employed as Waste Water Operator with the Respondent. There is no doubt that Mr. Moss is a significantly younger individual, purported to have been in his late 20's when the incident in question occurred. The Petitioner, however, produced no evidence regarding Mr. Moss' date of birth or his age in relationship to the Petitioner's. He also produced no
evidence to show that he was actually replaced by Mr. Moss. Mr. Moss had been hired on or about January 29, 2001, nearly one year prior to the date of the Petitioner's termination. Both the Petitioner and Mr. Moss were working at the Canal Street Plant in similar capacities and duties, at the time the Petitioner was terminated. Mr. Moss, therefore, just continued to work there and ultimately was elevated, through his adequate performance, to the position of Waste Water Operator. It was not established that he was hired simply to replace the Petitioner when the Petitioner was terminated. Further, the Petitioner did not adduce sufficient, persuasive evidence to show that he was actually qualified to perform the job. His prior performance had been unacceptable since at least July 11, 2001, and likely before that time. The Petitioner repeatedly failed to comprehend and perform assigned duties of a Waste Water Operator Trainee on multiple occasions. This was despite efforts by the Respondent to help the Petitioner correct his deficiencies. Accordingly, it has not been established that the Petitioner was "qualified" for the position of Waste Water Operator Trainee.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter hereof and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2003).
It is prohibited under Chapter 760, Florida Statutes, for an employer to discriminate against employees on the basis of age, specifically Section 760.10(1)(a), Florida Statutes (2003). Federal decisional law regarding age discrimination in employment, specifically the Age Discrimination in Employment Act (ADEA) 29 U.S.C. Section 623, and cases interpreting the provisions of that act are used to analyze cases arising under the Florida Civil Rights Act, Chapter 760, Florida Statutes. The ADEA renders it "unlawful for an employer to fail or refuse to hire or discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. Section 623.
When a Petitioner alleges disparate treatment, liability then depends on whether the protected trait actually motivated the employer's decision. See Chapman v. A.I. Transport, 229 F.3d 1012, 1024 (11th Cir. 2000). That is to say that the Petitioner's age must have actually played a role in the employer's decision-making process. Id. Citing Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
A Petitioner in an age discrimination case has the burden of proving a prima facie case of age discrimination. Id. Where, as here, there is not direct evidence of age discrimination, the McDonnell-Douglas burden shifting analysis will govern such a case. Bogle v. Orange County Board of
Commissioners, 162 F.3d 653, 656-57 (11th Cir. 1998). Chapman v. A.I. Transport, supra. (citing McDonnell-Douglas Corp., v.
Green, 411 U.S. 792 (1973); Combs v. Plantation Patterns, 106
F.3d 1519, 1527-28 (11th Cir. 1997).
In order to establish a prima facie case for an age discrimination violation, the Petitioner must show that: (1) he was a member of a protected age class; (2) that he was subjected to an adverse employment action; (3) that he was qualified to do his job; and (4) that he was replaced or otherwise lost his position to a younger individual. See Chapman, 229 F.3d at 1024. Protected person or age groups or persons between the ages of 40 and 70. See Bogle supra.
If the Petitioner establishes a prima facie case, the Respondent must articulate a legitimate, non-discriminatory reason for the challenged employment action. Chapman, at 1124-
intentionally discriminated against him. Consequently, the Petitioner has not carried his burden of ultimate persuasion. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety.
DONE AND ENTERED this 3rd day of May, 2004, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Division of Administrative Hearings this 3rd day of May, 2004.
Steven W. Johnson, Esquire McLin & Burnsed, P.A.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk 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.
