STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELAMIR G. GHATTAS,

Petitioner,

vs.

DEPARTMENT OF INSURANCE,

Respondent.

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) Case No. 04-1017

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RECOMMENDED ORDER

A hearing was held pursuant to notice on July 15, 2004, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Elamir G. Ghattas, pro se

811 Chestwood Avenue

Tallahassee, Florida 32303

For Respondent: Dennis Silverman, Esquire

Division of Legal Services Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

ISSUE

Whether the Department of Insurance (DOI), now Department of Financial Services, discriminated against the Petitioner on the basis of national origin or age contrary to Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

This case arose when the DOI reassigned the Petitioner from maintaining the law library at the Division of Legal Services to the Service of Process Section, which processed legal papers related to litigation. Although the Petitioner accepted the reassignment of duties, he expressed his unhappiness with the transfer to his supervisors and eventually retired rather than continue to perform the duties. Subsequently, he filed a complaint with the Florida Commission on Human Relations (FCHR) alleging that the DOI had discriminated against him on the basis of age and national origin.

The FCHR investigated the allegations, and made a determination of no cause. The FCHR notified the Petitioner of his right to a hearing, and the Petitioner filed a Petition for Relief, which was transmitted by the FCHR to the Division of Administrative Hearings on March 19, 2004. An Initial Order was issued on March 22, 2004, and the matter was noticed for hearing after responses from both parties on March 31, 2004, for May 20, 2004. On that date a hearing was commenced; however, it appeared that there was a possibility that the matter could be resolved and hearing was recessed to permit the parties to discuss resolution. Thereafter, it was determined that the parties could not resolve the issues, and the case was re- noticed for hearing on July 15, 2004, and heard as noticed.

At the formal hearing, the Petitioner testified in his own behalf and introduced no exhibits. The Respondent presented the testimony of Stephanie Iliff, Don Dowdell, Beverley DiGirolamo, Pam Edenfield, and Julie Kail, who are all employees of the DOI. The Department introduced Respondent's Exhibits 1 through 8, which were received into the record.

At the conclusion of the hearing, a transcript was ordered which was filed on August 4, 2004. The parties both timely filed proposed findings, which were read and considered.

FINDINGS OF FACT

1. The Petitioner is Elamir G. Ghattas, a naturalized American of Egyptian birth, who is 71 years of age.

2. The Petitioner was employed by the DOI for 18 years.

   
   

   He was assigned to maintain the law library at the DOI in 1985, and performed those duties until 2002. His job title at that time was "Records Specialist," and his supervisor was Beverley DiGirolamo, who was the office manager of the Legal Division.

3. In 2002, he was transferred from his duties in the law library to duties in the Service of Process Division (SPD) of DOI. His new supervisor was initially Carolyn Ash, who was asked to sign Petitioner's timesheet, and who was at a lower pay grade (13) than the Petitioner's pay grade (16). After he brought this to management's attention, Pam Edenfield was assigned to sign his timesheet. His duties involved maintaining

   and filing documents received by the DOI relating to the service of process in the legal cases filed throughout the state. The work of the division has increased greatly due to a change in the statutes, and the SPD could not process the increased workload with its existing employees.

4. To resolve the workload issues, personnel from other portions of the legal department were transferred to the SPD. The Petitioner was one of approximately four individuals who were transferred from Legal Services Division to SPD.

5. The decision to move the Petitioner was made by Ms.

   
   

   DiGirolamo and Ms. Edenfield based upon his low workload in the library and the high workload in SPD. After the Petitioner was moved, his duties were assumed as an additional duty by one of the legal secretaries who spends between four and eight hours on the activity per month.

6. The basis for his move was explained to Petitioner by Ms. DiGirolamo and Ms. Edenfield, and by Mr. DowDell, who was their supervisor.

7. Following his transfer, the Petitioner's performance suffered, and when he was formally counseled about it, he ultimately resigned and retired.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the issues and parties in this case pursuant to Sections 120.57 and 760.11, Florida Statutes.

9. The Petitioner filed a Petition for Relief with the FCHR alleging that the Respondent has discriminated against him because of his age and national origin.

10. The Petitioner has the burden to show that he is a member of a protected class and that an adverse job action was taken against him.

11. In the Age Discrimination in Employment Act (ADEA) cases, there are three methods by which a Plaintiff can carry his burden at the prima facie stage. First, a prima facie case can be proven through the use of direct evidence of the defendant-employer's discriminatory intent. In direct evidence cases, the plaintiff introduces evidence that, if believed, establishes that an employer acted with discriminatory motive in making an employment decision. Early v. Champion Intern. Corp., 907 F.2d 1077 (11th Cir. 1990). Direct evidence is that quantity of evidence that tends to prove the existence of a fact without inference or presumption. Id. quoting Carter v. City of

    Miami, 870 F.2d 578, 582 (11th Cir. 1989). Only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, constitute direct evidence of

    discrimination. Id. at 582. No such evidence has been presented in this case.

12. A second method of drawing the nexus between age and adverse action by an employer is by statistical proof of a pattern or practice of discrimination. Pace v. Southern Ry.

    System, 701 F.2d 1383 (11th Cir. 1983). This method of establishing a prima facie case is necessary in those situations where the plaintiff is replaced by an individual who is himself or herself a member of the protected class. In this situation, "evidence of a pattern of terminating older workers . . . allow[s] the reasonable inference that age had played a role in [plaintiff's] discharge." Id. at 1388, quoting McCorstin v.

    U.S. Steel Corp., 621 F.2d 749, 754 (5th Cir. 1980). If a plaintiff relies solely on statistical evidence to prove discrimination, he has the burden of presenting sufficient proof that, in conjunction with other evidence, gives rise to an inference of discrimination. See Pace, 701 F.2d at 1388. No such evidence was presented in this case.

13. The final and most common method of proving an ADEA violation is through circumstantial evidence. In this instance, the plaintiff utilizes what is commonly referred to as "the McDonnell Douglas test." This test, adopted from the Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), requires a plaintiff to establish a

    prima facie case by proving that he or she (1) was a member of the protected class, (2) was subject to an adverse employment action, (3) was replaced with a person outside the protected group, and (4) was qualified to do the job. Verbraeken v.

    Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir 1989). The Eleventh Circuit has held that if the discharged employee is replaced by an individual who is also in the protected group, that such an occurrence will not, as a matter of law, preclude proof of a prima facie case. Pace v. Southern Ry. System, 701 F.2d 1383 (11th Cir. 1983).

14. The Petitioner proved that he is within two protected classes, national origin and age. The Petitioner alleges that he was moved and the move constitutes a constructive discharge. This was not proven. The facts show that he was reassigned duties, and that the duties were consistent with his job title. The Respondent argues that the change in job duties did not constitute an adverse job action; however, the evidence indicates that his line of supervision changed and, in fact, Petitioner's supervision was changed when he pointed out that he was being supervised by a person of a lower pay grade than he was. Even so, he ended he up in a different branch of the organizational chain with a different rater. This constitutes a "demotion." The Petitioner was not discharged, so his position could not be filled; however, this is not necessarily an element

of proof. He was qualified to perform the job. All of the parties involved in the decision-making process and the person who took over his library duties, all of whom testified and were observed, were younger than the Petitioner. Therefore, arguably, the Petitioner presents a prima facie case.

1. Once a prima facie case is established, the employer must rebut the inference by articulating a nondiscriminatory reason for the action taken. If this is done, the plaintiff then must prove by a preponderance of the evidence that the employer's asserted reason is merely a pretext for a discriminatory dismissal. Verbraeken, 881 F.2d at 1045.

2. In this case, the DOI presented competent, substantial, and credible evidence that it moved the Petitioner to SPD because of workload issues. The Petitioner did not rebut this testimony and did not show that it was pretextual. Therefore, the Petitioner failed to carry his burden of proof.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter its final order dismissing the Petition for Relief filed by the Petitioner.

DONE AND ENTERED this 26th day of August, 2004, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 26th day of August, 2004.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Elamir Ghattas

811 Chestwood Avenue

Tallahassee, Florida 32303

Dennis Silverman, Esquire Division of Legal Services Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

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: 04-001017

Orders for Case No: 04-001017