STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT JOHNSON,

Petitioner,

vs.

TREE OF LIFE, INC.,

Respondent.

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) Case No. 04-2659

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RECOMMEND ORDER

Pursuant to notice, a formal hearing was held in this case on February 22, 2005, in Saint Augustine, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Robert C. Johnson, pro se

560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32086

For Respondent: Glynda Copeland

Qualified Representative Tree of Life, Inc.

Post Office Box 410

St. Augustine, Florida 32095-0410 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.

PRELIMINARY STATEMENT

On March 31, 2003, Petitioner, Robert C. Johnson, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The Charge of Discrimination alleged that Respondent had discriminated against him based on his age and disability when it failed to pay and litigated his worker’s compensation claim and when it failed to accommodate his work schedule due to an injury.

On July 15, 2004, FCHR entered a Determination of No Cause on Petitioner's Charge of Discrimination. Petitioner was advised of his right to contest FCHR's determination, by filing a Petition for Relief. On July 25, 2004, Petitioner filed a Petition for Relief with FCHR. Petitioner's petition was forwarded to the Division of Administrative Hearings for final hearing.

At the hearing, Petitioner advised that he was not pursuing his claim of discrimination based on his disability. Therefore, Petitioner’s claims of discrimination related to his disability are dismissed.

Petitioner testified in his own behalf and presented the testimony of one other witness. Petitioner did not introduce any exhibits into evidence. Respondent did not offer any testimony or exhibits into evidence.

After the hearing, Petitioner filed a Proposed Recommended Order on February 28, 2005. Respondent did not file a proposed

recommended order.

FINDINGS OF FACT

1. Currently, Petitioner is a retired, 68-year-old male.

   
   

   He retired from Respondent at the age of 66.

   
   

2. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent.

3. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to

   40 hours a week.

4. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available.

   In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent.

5. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action

   was taken against Petitioner and Petitioner continued to work for Respondent.

6. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age

   related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date.

7. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat.

9. Under the provisions of Section 760.10, Florida Statutes, it is an unlawful employment practice for an employer:

   (1)(a) To discharge or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

10. The Florida Civil Rights Act of 1992, Section 760.11, Florida Statutes, provides that a charge of discrimination must be filed within 365 days of the alleged violation, "naming the employer, employment agency, labor organization, or joint

    labor-management committee responsible for the violation."

    
    

11. FCHR and the Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland Regional Medical Center, 16 FALR 567 (FCHR 1993).

12. The Supreme Court of the United States established in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging discrimination under Title VII such as the one at bar. This analysis was reiterated and refined in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

13. Pursuant to this analysis, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, Respondent must articulate some legitimate,

    non-discriminatory reason for its employment action. If the

    employer articulates such a reason, the burden of proof then shifts back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination. As the Supreme Court stated in Hicks, before finding discrimination, "[t]he fact- finder must believe the Plaintiff's explanation of intentional discrimination." 509 U.S. at 519.

14. In Hicks, the Court stressed that even if the fact- finder does not believe the proffered reason given by the employer, the burden at all times remains with Petitioner to demonstrate intentional discrimination. Id.

15. In order to establish a prima facie case, Petitioner must establish that:

    1. He is a member of a protected group;

    2. He is qualified for the position;

    3. He was subject to an adverse employment decision;

    4. He was treated less favorably than similarly-situated persons outside the protected class; and

       
       

       Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983);

       
       

       Smith v. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769,

       29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.

       
       

       2d 768, 36 FEP Cases 22 (11th Cir. 1984).

       
       

16. If Petitioner fails to establish a prima facie case of race discrimination, judgment must be entered in favor of

    Respondent. Bell v. Desoto Memorial Hospital, Inc., 842 F. Supp. 494 (M.D. Fla. 1994).

17. As indicated earlier, if a prima facie case is established, a presumption of discrimination arises and the burden shifts to Respondent to advance a legitimate, non- discriminatory reason for the action taken against Petitioner. However, Respondent does not have the ultimate burden of persuasion but merely an intermediate burden of production. Once this non-discriminatory reason is offered by Respondent, the burden shifts back to Petitioner. Petitioner must then demonstrate that the offered reason was merely a pretext for discrimination.

18. In the instant case, Petitioner alleges that he was treated differently in terms of his working conditions and payment of a worker’s compensation claim because of age discrimination. Thus, Petitioner must prove, by a preponderance of the evidence, that Respondent acted with discriminatory intent. Case law recognizes two ways in which Petitioner can establish intentional discrimination. First, discriminatory intent can be established through the presentation of direct evidence. See Early v. Champion International Corporation, 907 F.2d 1081 (11th Cir. 1990). Second, in the absence of direct evidence of discriminatory intent, intentional discrimination

    can be proven through the introduction of circumstantial evidence.

19. In this case, Petitioner is over the age of 40, and as such, he belongs to a protected class. However, the evidence did not show that any adverse employment action occurred. Indeed, there was no evidence of any discrimination by Respondent against Petitioner. The isolated and unrelated statements alleged to show discrimination simply do not rise to the level of evidence necessary to make such a demonstration. Finally, there was no evidence that the employer was responsible for defenses raised and statement’s made in Petitioner's workers compensation litigation. Therefore, the Petition for Relief should be dismissed.

RECOMMENDATION

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

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 14th day of April, 2005.

COPIES FURNISHED:

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

Tallahassee, Florida 32303-4149

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

Tallahassee, Florida 32303-4149

Glynda Copeland Qualified Representative Tree of Life, Inc.

Post Office Box 410

St. Augustine, Florida 32095-0410

Robert C. Johnson

560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084

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: 04-002659

Orders for Case No: 04-002659