LAMAR T. MUNRO,
vs.
Respondent.
) Case No. 03-3591
Upon due notice, a disputed-fact hearing was conducted in this case on December 12, 2003, in Lake City, Florida, before the Division of Administrative Hearings, by its duly-assigned Administrative Law Judge, Ella Jane P. Davis.
For Petitioner: Lamar T. Munro, pro se
For Respondent: Melissa A. Dearing, Esquire
Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089
Whether Respondent employer is guilty of an unlawful employment practice, as defined by the Florida Civil Rights Act, Chapter 760, Part I, against Petitioner, on the basis of age.
On October 28, 2002, Petitioner filed with the Florida Commission on Human Relations a charge of discrimination against Respondent Winn-Dixie Stores, Inc. Therein, he alleged that he had been denied a promotion to a meat market manager position because of his age. The Commission entered a Determination: No Cause on August 26, 2003.
Petitioner timely filed a Petition for Relief, alleging age discrimination, which was referred to the Division of Administrative Hearings on or about October 1, 2003.
At the December 12, 2003, disputed-fact hearing, Petitioner testified on his own behalf and presented the oral testimony of Freddie Fleming, Kathy Daniels, William Kuebbeler, Tommy Jackson, Greg Kelly and Rob Richardson. Petitioner had Exhibit P-1 admitted into evidence. Exhibit P-2 was not admitted.
Respondent presented the oral testimony of Greg Kelly and had Exhibits R-1 through R-4 admitted in evidence.
A Transcript was filed on January 5, 2004.
The parties' respective timely-filed Proposed Recommended Orders have been considered in preparation of this Recommended Order.
Respondent Winn-Dixie is an "employer" as that term is defined in Section 760.02(7), Florida Statutes.
On or about February 8, 2003, Freddie Fleming was involuntarily terminated from his position as meat market manager at Winn-Dixie Store No. 81, "the Lake City store." Mr. Fleming was 36 years old at the time of his termination.
In or around the week of February 10, 2003, Respondent posted a vacancy for the meat market manager position.
During that same week, Petitioner applied for the meat market manager position by orally advising of his interest in the position.
Petitioner and four other employees were interviewed by Greg Kelly, Respondent's District Meat Supervisor, during the week of February 17, 2003. The same set of interview questions were used with each of the applicants.
At the time that he applied and was interviewed for the meat market manager position, Petitioner was 58 years old, and had gray or white hair.
One of the other applicants was John Hilton, who had dark hair and was 49 years old. He was 13 years older than the previous meat market manager, Freddie Fleming, and nine years younger than Petitioner. Mr. Hilton was ultimately selected for the position.
Petitioner has been a meat cutter since 1970. At the time of his application for promotion, he was working in Respondent's Lake City store. Most of his 33-year career has been with Respondent in several different stores. He had been working in the Lake City store for eight years at the time of his application for promotion. He had nine years of service as an assistant meat market manager with Winn-Dixie. He may have had an additional four years as an assistant meat market manager for other stores. He had worked with five different meat market managers, but he only had two months of experience as a meat market manager in another of Respondent's stores.
Mr. Hilton had been hired by Respondent just within the previous year. He was a meat cutter in the Lake City store at the time of his application. However, Mr. Hilton had a total of three and one-half to four years of meat market manager experience. Mr. Hilton was also a 20-year veteran of the United States Army, from which he had retired. The record is silent as to whether Mr. Hilton's job in the Army was as a meat cutter, but he represented to Respondent's management that he had 30 year's total meat market experience.
On the basis of his respective interviews of all the applicants, Mr. Kelly perceived Mr. Hilton as the most qualified candidate. This was because Mr. Kelly concluded that Mr. Hilton possessed the necessary people and leadership skills. Mr. Kelly
based his conclusion on, among other things, Mr. Hilton's responses to the interview questions as compared to Petitioner's responses to the same questions.
For example, in Question No. 5, Petitioner and
Mr. Hilton were each asked this opinion about the ideal amount of inventory to keep on hand at the Lake City store. Petitioner guessed or assumed that $20,000 of meat inventory was on hand at the time and responded that therefore, $20,000 would be an ideal amount of inventory. Mr. Hilton responded that he would have to look at the average weekly sales to determine the ideal amount of inventory. Mr. Kelly regarded Petitioner's response as inferior to Mr. Hilton's response because in Mr. Kelly's estimation, the Lake City store regularly required approximately triple the amount of inventory suggested by Petitioner.
Therefore, Mr. Kelly considered Mr. Hilton's response as more appropriate.
Similarly, when asked, in Question No. 10, how Petitioner would enforce proper workforce standards, Petitioner responded that, based on his observations and first-hand experience with the current assistant meat market manager, Petitioner would demote him. Mr. Kelly then asked if Petitioner felt the assistant meat market manager would continue to be productive, once he was demoted. When Petitioner answered affirmatively, Mr. Kelly believed Petitioner's response to be
problematic, because "if you go into a management position, you need to be able to work with people in--within that particular market and help them achieve their goals. . ." Mr. Kelly disapproved of Petitioner's proposed drastic action of terminating the assistant. He felt that the assistant's demotion would hurt his productivity and the morale of other workers.
In response to Question No. 11, Mr. Hilton was able to describe Respondent's Meat Standards Booklet and stated that he used it daily. Petitioner stated, during his interview, that he was not sure what the booklet was, and made a statement to the effect that, "I don't use [it] daily as I know how things should be done." Mr. Kelly found this response of Petitioner's "a little disturbing, considering that a [meat] market manager would need to use this standards booklet as an example to others, to his associates, and lead by example and enforce this every day."
In Question No. 20, Petitioner and Mr. Hilton were asked to explain what the "Y" on the meat cutting list stood for and its importance. Mr. Hilton responded correctly that "the 'Y' on the list is for items which we are to have in our meat case every day." Petitioner did not understand what the "Y" represented and indicated that he did not use the cutting list every day. Petitioner testified at hearing that he had not been
trained on the standard cutting list. Mr. Kelly regarded Petitioner's response in the interview as problematic because "Winn-Dixie asks all meat cutters, market managers [to] have [this] in place on an everyday basis," and because the list was very important to the meat market's operations. Petitioner's unfamiliarity with what the "Y" represented was particularly surprising to Mr. Kelly since Mr. Kelly believed he had explained the use of the cutting list to Petitioner, Melissa Turner, Mr. Hilton, and one other meat department associate.
Finally, in Question No. 21, Petitioner and Mr. Hilton were specifically asked if they used the cutting list daily. Petitioner responded "not every day," while Mr. Hilton indicated that he did use the cutting list daily. Mr. Kelly regarded Petitioner's response as inferior to Mr. Hilton's since "[i]f [Petitioner] is to take on the market manager position, he has to lead by example. And this is a standard, as I said earlier, that Winn-Dixie expects on an everyday basis."
Accordingly, based upon Mr. Hilton's greater meat market management experience; the answers Petitioner and Mr. Hilton gave during their respective interviews; and Mr. Kelly's understanding that Petitioner had received the
endorsement of the former meat market manager, Mr. Fleming, and the endorsement of Store Manager Tommy Jackson, Mr. Kelly concluded that Mr. Hilton was more qualified for the position of
meat market manager than Petitioner.1/ Based upon this assessment, Mr. Kelly recommended to District Manager Rob Richardson that John Hilton be promoted to the meat market manager position in the Lake City store.
Respondent has adopted in its Employee Handbook, and posts, a clear anti-discrimination policy.
At the time Mr. Kelly made his decision to recommend that Mr. Richardson promote Mr. Hilton, he did not know Petitioner's or Mr. Hilton's age, nor had he formed any opinion concerning Petitioner's age as compared to Mr. Hilton's age.
After reviewing the results of the interviews of the candidates with Mr. Kelly and seeking from both Mr. Kelly and Mr. Jackson, work performance information concerning the candidates, Mr. Richardson approved Mr. Kelly's recommendation of Mr. Hilton for promotion to the meat market manager position.
Mr. Richardson did not know Petitioner's or
Mr. Hilton's age prior to promoting Mr. Hilton. He assumed they were both in their fifties and similar in age.
Prior to his promotion, Mr. Hilton expressed considerable vocal anger to his immediate supervisor,
Mr. Fleming, because Mr. Hilton's promised raise upon successful completion of his probationary period had not appeared in his paycheck in a timely manner. Mr. Hilton may have been vocally angry in Mr. Jackson's presence or Mr. Hilton's anger may have
just been relayed to Mr. Jackson by Mr. Fleming. In either case, the problem was resolved prior to the application- interview process.
Only Petitioner related that after Mr. Hilton's promotion, Mr. Hilton had anger management problems, yelled at subordinates, and threw objects.
Respondent's Employee Handbook provides that the use of drugs or alcohol on the job is an offense subject to termination of employment. Since Mr. Hilton's promotion to meat market manager, two middle-management supervisors have reported to their supervisors that Mr. Hilton "might" have had beer or liquor on his breath while at work, but they "could not swear to it." Management looked into these allegations, but the result of that investigation is not of record. In other words, the use of alcohol on the job by Mr. Hilton at anytime has not been proven. Moreover, no one connected with the promotional process was aware of any such suspicions concerning alcohol use by Mr. Hilton prior to his actual promotion.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Chapter 760, and Section 120.57(1), Florida Statutes.
The Florida Civil Rights Act of 1992, as amended, Chapter 760, Florida Statutes, proscribes discrimination against any individual with respect to terms, conditions, or privileges of employment on the basis of, among other attributes, age.
See Section 760.10(1)(a), Florida Statutes.
Since the Florida Act was patterned after Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sections 2000e-2000e-17 (Title VII) and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sections 621-623 (ADEA), case law interpreting Title VII and the ADEA is applicable to cases arising under the Florida Act. Florida State University v. Sondel, 685 So. 2d 923, 925 (Fla. 1st DCA 1996).
Petitioner has the initial burden of establishing a prima facie case of discrimination. Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997), cert. denied, Combs v. Meadowcraft, 522 U.S. 1045 (1998). Disparate treatment claims require proof of discriminatory intent either through direct, statistical or circumstantial evidence. Denny v. City of Albany, 247 F.3d 1172 (11th Cir. 2001). Since Petitioner has failed to set forth any direct or statistical evidence, he must rely on circumstantial evidence to prove discriminatory intent, using the framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
To establish a prima facie case of promotion discrimination under the McDonnell Douglas framework, Petitioner must demonstrate that: 1) he was a member of a protected group;
(2) he was subject to adverse employment action; (3) a substantially younger person filled the position; and (4) he was qualified to do the job for which he was rejected. Bogle v.
Orange County Board of County Commissioners, 162 F.3d 653 (11th Cir. 1998).
Initially, no evidence in the record suggests that Respondent's decision-makers knew or considered Petitioner's age, Mr. Hilton's age, or their ages relative to each other. See Cordoba v. Dillard's, Inc., 2003 WL 21499011; at 17 Fla. L. Weekly Fed D 66 (M.D. Fla. 2003); not reported in F. Supp. 2d, (explaining that the "[p]recedent in this circuit and elsewhere have established that knowledge of an employee's . . . protected status is a precondition for the possibility of [discriminating against] that employee because of his or her membership in a protected category.") (emphasis in original).
If they considered age at all, Respondent's decision- makers herein surmised that Petitioner and Mr. Hilton were both in their fifties and similar in age. See Brennan v. Metropolitan Opera Association, Inc., 192 F.3d 310 (2nd Cir. 1999) (finding that the plaintiff failed to establish that she was discriminated against based on her age because, among other
things, the decision-maker thought the plaintiff and the successful candidate were both in their thirties).
Furthermore, courts have concluded that where, as here, the age difference between the successful candidate and the plaintiff/petitioner is less than ten years, that age difference is presumptively insubstantial for purposes of establishing a prima facie case of age discrimination without showing that the employer viewed the rejected employee's age to be significant. See, e.g., Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1997) (concluding that, unless substantial evidence is presented to the contrary, an age difference of ten years is presumptively insubstantial); Girten v. McRentals, 337 F.3d 979 (8th Cir. 2003) (finding that replacement of a 63-year-old by a 54-year-old is probably insufficient); Dunaway v. Int'l Bhd. Of Teamsters, 310 F.3d 758 (D.C. Cir. 2002) (replacement of employee by a candidate that was seven years younger, without more, was insufficient to establish "substantially younger" element of prima facie case). These seem to be the better reasoned decisions. However, in this circuit cf.-Carter v. City of Miami, 870 F.2d 578, 583 (11th Cir. 1989) (finding that the successful candidate, who was three years younger than the 47-year-old plaintiff but still over 40 as was plaintiff, was "sufficiently younger" than the plaintiff to make a prima facie case).
Herein, the presence of the employer's clear anti- discrimination policy and the hiring of a candidate older than the terminated Mr. Fleming weigh heavily in the employer's favor, even though Petitioner, the unsuccessful candidate, was even older than the successful candidate. Likewise, the fact that Petitioner was not equally qualified with the successful candidate for the position sought, means that Petitioner was not displaced or passed over in favor of a younger "similarly situated" candidate.
Petitioner has not established a prima facie case of age discrimination as a result of being denied the meat market manager position.
Assuming, arguendo, but not ruling, that Petitioner has established a prima facie case of discrimination, the burden then shifts to Respondent to articulate a legitimate, nondiscriminatory reason for the challenged employment action. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, (2000); Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997). The burden on the employer in this regard is "exceedingly light." Holifield v. Reno, supra. at 1564. The employer need only offer admissible evidence sufficient to raise a genuine issue of fact as to whether it had a legitimate reason for taking the contested employment action. Chapman v. A.I. Transport, 229 F.3d 1012 (11th Cir. 2000).
The Respondent herein articulated a legitimate, nondiscriminatory explanation for selecting Mr. Hilton for the meat market manager position. He was the most qualified candidate for the position. Mr. Hilton had three and one-half to four years' experience as a meat market manager elsewhere, versus Petitioner's two months in such a position with Respondent. Mr. Hilton displayed significant leadership and people skills as well as greater familiarity with Respondent's meat-cutting standardization requirements and inventory needs than did Petitioner during their respective interviews.
Mr. Kelly regarded Hilton as possessing highly desirable skills and knowledge for the meat market manager position.
Respondent having articulated a legitimate, non- discriminatory reason for its actions, the inference of discrimination disappears and the burden shifts back to Petitioner to prove, by the greater weight of the evidence, that the employer's proffered reason was merely a pretext for intentional discrimination. Reeves v. Sanderson Plumbing Prod.,
Inc., supra. Petitioner may 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. Dept. of Corrections v. Chandler, 582 So. 2d 1183 (Fla.
1st DCA 1991). Herein, Petitioner has not carried that extremely heavy 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).
Petitioner relied on his own testimony that he was more qualified than the selected candidate, and that the selected candidate had drawbacks (alcohol misuse; anger management problems; and violation(s) of the Employee Handbook) which were ignored by the hiring team. Such uncorroborated evidence is insufficient, by itself, to establish that the promotional process or result was discriminatory. See Lee v. GTE Florida, Inc., 226 F.3d 1249 (11th Cir. Fla. 2000), rehearing and suggestion for rehearing en banc denied, 239 F.3d 371 (11th Cir. 2000), and cert. denied, 532 U.S. 958 (2001). In any event, "[i]n a failure to promote case, a plaintiff cannot prove pretext by simply showing that [he] was better qualified than the individual who received the position that [he] wanted. [D]isparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those
disparities are so apparent as virtually to jump off the page and slap you in the face." Denny v. City of Albany, supra.
Petitioner asserted that Respondent's management knew, prior to the promotional interviews, that Mr. Hilton was using alcohol on the job as expressly forbidden by the Employee Handbook and that the higher managers should have terminated
Mr Hilton instead of promoting him. However, all the witnesses who were asked about these issues, except Petitioner, testified consistently that they were not aware of Mr. Hilton's alleged (and unproven) on-the-job drinking until after he had been promoted. The evidence further shows that upper management began an investigation upon receiving the allegations. Alleged anger management problems were not corroborated sufficiently either. Moreover, unless these drawbacks were both in existence and known to the employer, at the time of promotion, they cannot support Petitioner's discrimination theory.
Mr. Hilton may have turned out to be a great hire or a dreadful one but here the proof is not in the pudding. That is to say, the necessary proof is not in the successful candidate's ultimate performance in the promotional position. Proof of discrimination must relate to what the employer knew at the time of making its promotional decision and whether that decision somehow discriminated against Petitioner on the basis of his age.
Petitioner presented no evidence that would establish that Respondent's reasons for selecting Mr. Hilton, instead of Petitioner, to fill the position of meat market manager in the Lake City store were pretextual. Petitioner has, therefore, failed to carry his burden of proving that he was discriminated against on the basis of age.
RECOMMENDED: that the Florida Commission on Human Relations enter a final order finding that Petitioner has not proven age discrimination and dismissing the Petition for Relief and Charge of Discrimination.
DONE AND ENTERED this 23rd day of March, 2004, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2004.
1/ Mr. Kelly clearly testified that he believed Tommy Jackson had recommended Mr. Hilton for the meat market manager promotion.
Mr. Jackson testified just as clearly that he did not recommend Mr. Hilton for the meat market manager promotion; however, he noted that previous to the promotional application-interview period, Mr. Fleming had come to him, Mr. Jackson, and said that if an opportunity arose, Mr. Hilton would be a good candidate for meat market manager.
Mr. Kelly also testified that Mr. Fleming had previously mentioned Mr. Hilton for an assistant meat market manager position. Mr. Fleming testified very clearly that he did not recommend Mr. Hilton for the position of meat market manager or tell management that Mr. Hilton was a qualified candidate for his replacement, but he acknowledged that he may have given
Mr. Kelly a list of Mr. Hilton's qualifications at the time of the squabble over Mr. Hilton's post-probation pay adjustment, several months before he was terminated.
Upon all the foregoing evidence, I have accepted as credible Mr. Kelly's testimony that he believed Jackson and Fleming had endorsed promoting Mr. Hilton.
Lamar T. Munro Route 6, Box 365
Melissa A. Dearing, Esquire
Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089
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.
