STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCES ANN RATLIFF, )

)

Petitioner, )

)

vs. )

) PARCEL DIRECT LOGISTICS, INC., )

)

Respondent. )

Case No. 03-3636

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on December 5, 2003, in Orlando, Florida.

APPEARANCES

For Petitioner: Frances Ann Ratliff, pro se

1101B North Hoagland Boulevard Kissimmee, Florida 34741

For Respondent: Jeffrey L. Thompson, Esquire

Constangy, Brooks & Smith, LLC

577 Mulberry Street, Suite 710 Macon, Georgia 31201

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner on the basis of her age, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2002).

PRELIMINARY STATEMENT

On December 12, 2002, Petitioner, Frances Ann Ratliff, filed an Amended Charge of Employment Discrimination against Respondent, Parcel Direct Logistics, Inc. On August 18, 2003, the Florida Commission on Human Relations filed a Notice of Determination: No Cause. On September 22, 2003, Petitioner filed a Petition for Relief wherein she alleged that: “She was removed from training on a forklift. The statements made by Jason Titra, a supervisor, comparing me to a grandmother and a young girl. Who would learn quicker? I took it to mean that I was to old to be trained for this position.”

On October 3, 2003, the Florida Commission on Human Relations transmitted the Petition for Relief and other pertinent documents to the Division of Administrative Hearings for a formal hearing. On October 6, 2003, an Initial Order was directed to both parties. On October 20, 2003, the case was scheduled for final hearing on December 5, 2003, in Orlando, Florida.

The hearing took place as scheduled. Petitioner testified on her own behalf; she offered no documentary evidence or other witnesses. At the close of Petitioner’s case, Respondent moved for dismissal based on Petitioner’s failure to present a prima

facie case. The undersigned reserved ruling on Respondent’s motion. Respondent presented one witness, Tim Staab, and

offered one exhibit, which was admitted into evidence as Respondent’s Exhibit 1. Respondent formally requested an award of attorney’s fees.

The Transcript of Proceedings was filed on December 17, 2003. On January 9, 2004, Petitioner offered her letter, “proposal to end this case.” On January 16, 2004, Respondent filed a Proposed Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made:

1. Petitioner is a Caucasian, female who, at the time of the alleged employment discrimination, was 42 years old.

2. Petitioner was an employee of Kelly Services, an agency that supplied temporary employees to Respondent. At the time of the alleged incident, Petitioner was filling the position of material handler in Respondent’s warehouse. Her job title, pay, and hours worked did not change during her period of employment with Kelly Services at Respondent's warehouse. She received her pay from Kelly Services. When she decided to terminate her employment at Respondent's warehouse, she advised Kelly Services that she was quitting, not Respondent.

3. There were three or four employees at the warehouse who were employees of Respondent. In addition, there were several temporary employees at the warehouse. No evidence was presented

   as to the total number of employees employed on either a permanent or temporary basis by Respondent.

4. Petitioner began her employment with Kelly Services at Respondent's warehouse in late August 2002. For approximately two weeks prior to October 23, 2002, Petitioner was being trained to operate a forklift. She was the only temporary employee being so trained.

5. On October 23, 2002, Jason Titra (Titra), a warehouse employee of Respondent, commented to Petitioner that it was easier to train a young person to operate a forklift than an older person. He analogized that "if you were training his niece and his grandmother to operate a forklift, who do you think would learn more quickly?" Petitioner was offended by this comment, thinking it derogatorily referred to her age.

6. Titra was not authorized to make employment decisions by Respondent although he exercised supervisory authority over temporary employees, including Petitioner.

7. Following the October 23, 2002, comment made by Titra, Petitioner refused to train to operate the forklift even though encouraged to train on the forklift and given the opportunity to do so by Respondent’s management representative.

8. On November 18, 2002, Tim Staab (Staab), Respondent’s operations plant manager, sought out Petitioner and asked why

   she wasn’t training to operate the forklift. She told Staab about the comment made by Titra.

9. Respondent immediately investigated the incident; as a result of Respondent’s investigation, Titra was disciplined for making inappropriate comments.

10. Titra attempted to apologize to Petitioner; however, Petitioner refused to accept his apology.

11. The October 23, 2002, comment by Titra is the only basis for Petitioner’s claim of age discrimination. There is no evidence that Titra repeated the comment or any similar comment, nor did any other employee. Nor is there any suggestion that the work environment became hostile. Petitioner acknowledged that Staab “tried to make it right”; Petitioner was repeatedly given the opportunity to train to operate the forklift, but she refused. Neither Petitioner’s pay or hours changed after the incident was reported.

12. Late in January 2003, Petitioner voluntarily left the employment of Kelly Services and her assignment with Respondent.

    CONCLUSIONS OF LAW

    
    

13. Whether the Division of Administrative Hearings has jurisdiction over the parties and the subject matter is problematic. In order for the Florida Commission on Human Relations to have jurisdiction, Chapter 760, Florida Statutes (2002), must apply. Petitioner failed to demonstrate that

    Respondent was an "employer" as defined in Subsection 760.02(7), Florida Statutes (2002):

    "Employer" means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.

    
    

    The evidence presented suggests that Respondent employed less that 15 employees, and, therefore, the Florida Commission on Human Relations lacks jurisdiction to consider this matter.

    Mousa v. Lauda Air Luftfahrt, A.G., 258 F. Supp. 2d 1329, 1340 (S.D.Fla. 2003); Regency Tower Owners Association, Inc. v.

    Pettigrew, 436 So. 2d 266 (Fla. 1st DCA 1983).

    
    

14. Assuming, however, that Respondent is subject to the jurisdiction of the Florida Commission on Human Relations, the Petitioner failed to present a "prima facie" case, as set forth hereinafter, and Respondent's Motion to Dismiss made at the close of Petitioner's case, upon which the undersigned reserved ruling, must be granted.

15. A matter of initial consideration is whether or not Petitioner is an "employee" of Respondent. There is no specific definition of "employee" in Chapter 760, Florida Statutes (2002). It is appropriate to consider Federal Civil Rights law when seeking a definition of "employee." An "employee" is defined in 42 U.S.C. Section 2000e(f) as "an individual employed

    by an employer . . ." Unfortunately, that definition is little help. However, case law is helpful.

16. "The definition of the term employee is not restrictive and must turn on the facts of that particular case." E.E.O.C. v. Pettegrove Truck Service, Inc., 716 F. Supp. 1430, 1433 (S.D.Fla. 1989). In Pettegrove, the court explained that an "economic realities" test is used to determine employee status. Under the test, one important factor for the court to consider is the amount of control the worker has over his or her job. Other relevant considerations include the kind of occupation, whether the work is usually done under a supervisor or is done by a specialist without supervision; the skill required; who furnished the equipment used in the place of work; method of payment; and benefits accumulated. Pettegrove at 1433.

17. In Barnes v. Colonial Life and Acc. Ins. Co., 818 F. Supp. 978 (N.D.Tex. 1993), the court ruled that the evidence did not establish that an insurance agent was an employee of the company, thereby barring an employment discrimination claim. In Barnes, the court considered the following factors when deciding whether Plaintiff was an "employee":

    1. kind of occupation, with reference to whether the work is done under the direction of a supervisor or is done by a specialist without supervision;

    2. skill required in the particular occupation;

       
       

    3. source of payment for the office and equipment;

       
       

    4. length of time the claimant has worked;

       
       

    5. method of payment, whether by time or by the job;

       
       

    6. manner in which the work relationship is terminated, whether by one or both parties; with or without notice and explanation;

       
       

    7. availability of annual leave;

       
       

    8. nature of the work, whether an integral part of the defendant's business;

       
       

    9. accumulation of retirement benefits;

       
       

    10. payment of social security taxes; and

        
        

    11. intention of the parties.

        
        

        Barnes at 980. Florida case law is compatible. Magarian v. Southern Fruit Distributors, 1 So. 2d 858 (Fla. 1941).

18. In the instant case, Petitioner was a temporary contract employee and not a regular employee of Respondent. Therefore, in order for Petitioner to maintain an action for discrimination against Respondent, she must show that an employment relationship with Respondent existed, based on the above-listed factors.

19. The scant evidence presented on the subject establishes that Petitioner was a temporary contract employee, who worked as

    a material handler in Respondent's warehouse. When Petitioner began working at Respondent's warehouse she was placed there by her employer, Kelly Services. In addition, Petitioner's wages were not paid by Respondent; she was paid by Kelly Services.

20. Nevertheless, in looking at the work actually performed by Petitioner, it is apparent that the work performed by Petitioner was performed only at Respondent's facility, using equipment furnished by it, and supervised exclusively by employees of Respondent; and Petitioner worked in the same basic job category for the entire time she worked for Kelly Services. Her position was not simply a temporary fill-in position; on a daily basis for approximately six months, she performed the same employment services for Respondent.

21. Based on the above factors, Petitioner is an "employee" and, therefore, has standing to maintain a discrimination charge against Respondent assuming that the Florida Commission on Human Relations had jurisdiction.

22. Section 760.10(1), Florida Statutes (2002), in relevant part, makes it an unlawful employment practice for Respondent to discriminate against Petitioner because of Petitioner's age. Chapter 760, Florida Statutes (2002), entitled the Florida Civil Rights Act, adopts the legal principles and judicial precedent set forth under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

    Section 2000 et seq. King v. Auto, Truck, Indus. Parts and Supply, Inc., 21 F. Supp. 2d 1370 (N.D.Fla. 1998); Carlson v.

    WPLG/TV-10, Post-Newsweek Stations of Florida, 956 F. Supp. 994 (S.D.Fla. 1996).

23. The United States Supreme Court has established an analytical framework within which courts should examine claims of discrimination, including claims of age discrimination. In cases alleging discriminatory treatment, Petitioner has the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. St. Mary's

    Honor Center v. Hicks, 509 U.S. 502 (1993); Combs v. Plantation Patterns, 106 F.3d. 1519 (11th Cir. 1997).

24. Petitioner can establish a prima facie case of age discrimination in one of three ways: (1) by producing direct evidence of discriminatory intent; (2) by circumstantial evidence under the McDonnell Douglas framework; or (3) by establishing statistical proof of a pattern of discriminatory conduct. Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1989). If Petitioner cannot establish all of the elements necessary to prove a prima facie case, Respondent is entitled to entry of judgment in its favor. Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990).

25. To establish a prima facie case of age-based discrimination, Petitioner must show that: she is a member of a

    protected class; she suffered an adverse employment action; she received disparate treatment from other similarly situated individuals in a non-protected class; and there is sufficient evidence of bias to infer a causal connection between her age and the disparate treatment. Andrade v. Morse Operations, Inc., 946 F. Supp. 979 (M.D.Fla. 1996). Petitioner is a member of a protected class due to her age, 42 years old. She has failed to present sufficient evidence regarding the remaining elements necessary to establish a prima facie case.

26. With the exception of an equivocal comment by an employee of Respondent, Petitioner submitted no evidence, direct, circumstantial, or statistical, of the alleged discrimination. Evidence was received that, in the context of a conversation regarding training on a forklift, Jason Titra, made a remark to the effect that it was easier to train a young person to operate a forklift than an older person. He analogized that "if he was training his niece and his grandmother to operate a forklift, who do you think would learn more quickly?" Comments alleged to have been made by persons unrelated to the actual decision-making process do not constitute direct evidence that Petitioner's age was a factor in the decision to terminate her employment. Mitchell v. USBI Co.,

    186 F.3d 1352 (11th Cir. 1999) (alleged comments by managers who were not decision makers with respect to the decision to lay off

    the plaintiff did not raise an inference of age discrimination); Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1329 (11th Cir.1998) (comment that "older people have more go wrong" was not relevant or probative of the discriminatory intent because the management individual who made the comment was not involved in the decision to terminate the plaintiff); Mauter v. Hardy

    Corp., 825 F.2d 1554, 1558 (11th Cir. 1987) (holding that the vice president's comment that the company was "going to weed out the old ones" was not evidence of discriminatory intent as the vice president played no part in the decision to terminate the plaintiff).

27. The isolated incident cited by Petitioner does not raise the inference of discriminatory intent. Titra was not a management employee; he was disciplined for his comment; Petitioner was not discharged, she left several months later of her own volition; there was no repeat of the purported discriminatory comments, nor was the workplace "hostile”; and management made every attempt to "make things right," in the

words of Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order granting Respondent's Motion to Dismiss and finding that Petitioner failed to present a "prima facie" case.

DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2004.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Frances Ann Ratliff

1101B North Hoagland Boulevard Kissimmee, Florida 34741

Jeffrey L. Thompson, Esquire Constangy, Brooks & Smith, LLC

577 Mulberry Street, Suite 710 Macon, Georgia 31201

Robin Sheridan Parcel Direct, LP

N63W23075 Main Street Sussex, Wisconsin 53089

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.

Docket for Case No: 03-003636

Orders for Case No: 03-003636