vs.
Respondent.
) Case No. 06-3314
Pursuant to notice, a formal hearing was held in this case on November 14, 2006, in New Port Richey, Florida, before Carolyn S. Holifield, the designated Administrative Law Judge of the Division of Administrative Hearings.
The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of her age.
On March 1, 2006, Petitioner, Cyd Johnston Stewart (Petitioner), filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (Commission), alleging that Respondent, the Pasco County Board of County Commissioners, d/b/a the Pasco County Library System (Respondent or the Pasco County Library System), discriminated against her based on her age, by terminating her employment, in violation of the Florida Civil Rights Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination in Employment Act. The Commission issued a "No Cause" Determination on
July 31, 2006. Petitioner filed a Petition for Relief on September 1, 2006, in which she alleged that Respondent engaged in an unlawful employment practice.
In addition to Petitioner's initial allegation, that she was terminated because of her age, in the Petition for Relief, Petitioner alleged that she was denied promotional opportunities because of her age. Because Petitioner did not include the issue related to promotions in her initial complaint and
presented no evidence at the final hearing regarding that issue, it has not been addressed in this Recommended Order.
On or about September 4, 2006, the Commission transmitted the Petition for Relief to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a formal hearing. The final hearing in the matter was held as noted above.
At hearing, Petitioner testified on her own behalf and had one exhibit admitted into evidence. Respondent called four witnesses and had one exhibit admitted into evidence. At the conclusion of the hearing, the parties agreed to submit proposed recommended orders on November 27, 2006, and no transcript of the final hearing was filed. Petitioner and Respondent filed proposed recommended orders, both of which have been considered in preparation of this Recommended Order.
Respondent, the Pasco County Board of County Commissioners, is a governmental entity, and the Pasco County Library System is one of its departments.
Petitioner, a female, was born on July 2, 1955.
Respondent first employed Petitioner on or about September 8, 1997, as a Library Assistant II, a paraprofessional position. When Respondent hired Petitioner to this position, she was 42.
On April 9, 2001, Petitioner was promoted to a Librarian I trainee position, at the age of 45.
On February 4, 2002, Petitioner was promoted to a Librarian I position, at the age of 46, after she earned a Master's Degree in Library Science. The position of Librarian I is an at-will position, meaning that the person serving in such position can be terminated for no cause.
Petitioner continued to work in the position of Librarian I until Respondent terminated her on or about March 24, 2005.
Prior to 2002-2003, Petitioner's annual evaluations were favorable. Even after Petitioner was promoted to the Librarian I position, her annual evaluations rated her job performance in several categories, as well as her overall job performance, as "meets standards." The rating of "meets standards" indicates that the employee's performance "generally meets the supervisor's expectations on most performance criteria."
Notwithstanding Petitioner's overall ratings of "meets standards," in the annual evaluations for 2002-2003 and 2003- 2004, her performance in some categories was rated as "needs improvement."
Petitioner's annual evaluation for the period from April 2, 2002, to April 9, 2003 (the 2002-2003 evaluation),
rated Petitioner's performance as "needs improvement" in several sub-categories under the following three categories: (1) Application of Professional Skills; (2) Performance of Routine and Special Assignments; and (3) Working Relationship, Communication, and Coordination with Other Personnel. Under each broad category, there were four sub-categories as well as a sub-category for the total rating in that particular category.
On Petitioner's 2002-2003 evaluation, under the category, "Application of Professional Skills," Petitioner was rated as "needs improvement" in one sub-category. That sub- category was, "no unnecessary delays are encountered in performing assignments or resolving problems."
On the 2002-2003 evaluation, under the category, "Performance of Routine and Special Assignments," Petitioner's performance in all sub-categories was rated as "needs improvement." These sub-categories were as follows: (1) conformance with schedules, standards, and plans does not require close supervision; (2) deviations in instructions, work schedules, and standards are approved by supervisor or corrected; (3) new and additional assignments are readily accepted and performed; and (4) work is of sufficient quality and quantity to meet supervisor's expectations.
With regard to the category, "Performance of Routine and Special Assignments," the supervisor's written comments on
the evaluation indicated notes that Petitioner should be at her assigned work location at scheduled times, and should obtain approval in advance from her supervisor prior to changing her work location and/or assigned work times. The written comments on the evaluation also stated that Petitioner had difficulty accepting a new supervisor, but indicated that Petitioner was responsible for readily accepting and implementing instructions from her supervisor.
The 2002-2003 evaluation rated Petitioner's performance in all the sub-categories under the category, "Working Relationship, Communication, and Coordination with Other Personnel," as needs improvement. The sub-categories were as follows: (1) conflicts or problems in working relationships are usually resolved without intercession of higher authority;
(2) needs, problems, and procedures are communicated to affected parties; (3) desired results are accomplished through subordinate and other personnel; and (4) few and only minor problems occur because of inadequate communication and coordination of activities.
With reference to the category, "Working Relationship, Communication, and Coordination with Other Personnel," on the 2002-2003 evaluation, Petitioner's supervisor wrote, Petitioner has the propensity for starting projects at the last minute which negatively affects other team members. Furthermore, in
the written comments on that evaluation, the supervisor directed Petitioner to communicate regularly with other team members when collaborating on projects and to communicate needs and problems to her supervisor before deadlines.
On the 2002-2003 evaluation, under the category, "Other Factors Important to Supervisor," Petitioner's supervisor noted that Petitioner "is encouraged to learn and adapt to change."
Petitioner's second annual evaluation (the 2003-2004 evaluation), while employed as a Librarian I, covered the period of April 9, 2003, to April 9, 2004. Petitioner's 2003-2004 evaluation, like her 2002-2003 evaluation, rated her overall performance as "meets standards." However, on the 2003-2004 evaluation, Petitioner's supervisor rated her performance in three sub-categories as "needs improvement."
In the 2003-2004 evaluation, the first category in which Petitioner was rated as "needs improvement" was "Application of Professional Skills." The specific sub-category in which Petitioner was rated as "needs improvement" was "no unnecessary delays are encountered in performing assignments or resolving problems."
With regard to the category, "Application of Professional Skills," on the 2003-2004 evaluation, Petitioner's supervisor wrote that Petitioner has excellent reference skills,
is resourceful and determined to provide good customer service, has highly developed problem solving skills, and has made many helpful and logical suggestions that have benefited the library. However, the supervisor's written comments also noted that, "the strength of some of [Petitioner's] ideas may occasionally make it difficult for [her] to adjust quickly when a decision is made to proceed in a fashion that differs from the way she believes is correct."
On the 2003-2004 evaluation, in one of the four sub- categories under the category, "Performance of Routine and Special Assignments," Petitioner's performance was rated as "needs improvement." That sub-category was "new and additional assignments are readily accepted and performed."
With regard to the category, "Performance of Routine and Special Assignments," the supervisor's written comments on the 2003-2004 evaluation indicate that Petitioner served as reference support for many branches throughout the county, that her efforts are appreciated by staff and supervisors at those branches, and that her willingness to travel to the various locations on an ever-changing basis is commendable. The supervisor further noted that in addition to her other assignments, Petitioner developed a series of on-line tutorials. However, in addition to the foregoing commendations about Petitioner's work, the supervisor wrote that "there has been
occasional reluctance to initiate some assignments in a timely fashion on [Petitioner's] part."
The third area in which Petitioner was rated as "needs to improve" was a sub-category under the category, "Working Relationship, Communication, and Coordination With Other Personnel." The specific sub-category under that category in which Petitioner's performance was rated "needs to improve" was "conflicts or problems in working relationships are usually resolved without the intercession of higher authority." With regard to this category, the evaluation notes that Petitioner is a respected member of the Pasco County Library System. However, the evaluation states that Petitioner "is reminded that she should strive to complete her assigned duties in a timely fashion so as not to affect her co-workers in a negative way."
Petitioner's 2003-2004 evaluation also made detailed comments in an area designated "Other Areas Important to Supervisor." While acknowledging that Petitioner is an intelligent and thoughtful employee, and that her suggestions are consistently logical and well thought out, the supervisor's written comments on the evaluation stated, "[Petitioner] has been told . . . that she needs to develop her ability to accept and implement decisions that she may not agree with. She has also been told to focus more of her efforts on being a team
player rather than defending her own position (no matter how defensible that position may appear)."
Petitioner received and signed the 2002-2003 and the 2003-2004 annual evaluations, and was verbally counseled by two of her supervisors.
There is no dispute that Petitioner was a competent librarian and well trained for the position. Moreover, Petitioner did a good job on her work-related assignments if they were assignments that she liked, but she tended to ignore assignments that she did not want to do. Such conduct created problems on the job by requiring other employees to do some work-related tasks assigned to Petitioner.
Following Petitioner's 2002-2003 and 2003-2004 evaluations, there was an work-related assignment which ultimately culminated in Respondent terminating Petitioner's employment. The assignment was an important, extensive, and comprehensive project that required team work. That assignment, referred to as "weeding," was given to all librarians in or about October 2003. The project required the librarians to "weed" assigned sections in the library by removing outdated and damaged books and materials. New books and materials were to be ordered to replace those outdated and damaged books and materials.
Petitioner believed the "weeding" project was a 15- month project with a projected completion date of December 2004. In April 2004, Petitioner's supervisor asked her when she would complete her portion of the weeding project. Petitioner did not respond to her supervisor's question. Instead, Petitioner asked her supervisor if the deadline for completing the project had changed. In August 2004, Petitioner's supervisor again asked her when she would have her assigned weeding project complete. As she had in April 2004, Petitioner responded to this inquiry by asking her supervisor if the "deadline" had changed. Petitioner never gave her supervisor a specific or approximate time when she would complete the project, but only said she would complete the project "soon." This response was non- responsive and gave the supervisor no information regarding how much of the Petitioner's weeding assignment was complete, how much of the assignment remained to be done, or when she would complete the assignment.
After Petitioner failed to respond to her supervisor's inquiry about when she would complete the weeding assignment, the supervisor pulled Petitioner off the weeding assignment. He then assigned another librarian to complete Petitioner's weeding assignment that she had not yet completed. That librarian completed Petitioner's assigned weeding in about a day and a half.
Based on Petitioner's failing to complete her assignment described in paragraph 25, Petitioner's supervisor conferred with appropriate human resources personnel about terminating Petitioner's employment. Upon completion of the review process, Petitioner's employment was terminated.
In a letter dated March 24, 2005, Respondent notified Petitioner that, effective immediately, her services at the Pasco County Library Services were no longer required. The letter did not give a reason for Respondent's termination.
Petitioner's employment as a Librarian I was an at- will position. Accordingly, Respondent was under no duty to give Petitioner a reason for her termination and could, in fact, terminate her for no cause.
Petitioner alleged that she was terminated in retaliation for following a supervisor's directive that Petitioner terminate the services of a library volunteer.
Petitioner also alleged that Respondent terminated her employment, based on her age, in order to bring in younger librarians and to move out the older librarians.
Petitioner's allegation that she was terminated based on her age is not supported by the evidence. First, the allegation that her employment was terminated because she followed a supervisor's directive to terminate the services of a library volunteer does not in any way establish that Petitioner
was terminated because of her age. Second, although Petitioner alleges that there was an effort to bring in young librarians and to move out the older librarians, the evidence established that there was no interest in or effort to hire only young librarians and fire the older librarians. Rather, there was an effort to promote persons currently in Librarian I positions with the Pasco County Library System, regardless of their age, and to bring in new librarians into the entry level positions.
The average age of professional and management staff in the Pasco County Library System is 46, even though the Librarian I is an entry level professional position and may attract younger candidates.
The reason Petitioner was terminated as a librarian, with the Pasco County Library System, was because of her job performance and not because of her age.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. See §§ 120.569 and 120.57(1), Fla. Stat. (2006).
The Florida Civil Rights Act of 1992 makes it an unfair employment practice for any employer “to discharge . . . any individual . . . because of . . . age.” § 760.10(1)(a), Fla. Stat. (2004). Respondent is an “employer” as defined in the Act. See § 760.02(7), Fla. Stat.
Federal case law interpreting the Age Discrimination in Employment Act (“ADEA”) is generally applicable to age discrimination claims arising under the Florida Civil Rights Act. See Florida State Univ. v. Sondel, 685 So. 2d 923, (Fla. 1st DCA 1996). Accordingly, the United States Supreme Court’s McDonnell-Douglas burden-shifting paradigm is applied to cases arising under the Florida Civil Rights Act. See Florida Dept. of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991), citing McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell-Douglas model, an individual claiming that he/she was discharged because of his/her age cannot establish even a prima facie case unless he can prove that he/she was: (1) a member of the protected age group; (2) discharged; (3) qualified to do the job; and (4) replaced by a younger individual. Moreover, even if the claimant was replaced by a younger person, he cannot establish a prima facie case if the replacement was “insignificantly younger.” See O’Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996).
If the claimant establishes a prima facie case of age discrimination, the employer must at least articulate a legitimate reason for the discharge. Once that has occurred, however, the ultimate burden shifts back to the claimant to prove, by a preponderance of the evidence, that this articulated
reason is merely a pretext for an age-based decision. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
The Commission has held that the Florida Civil Rights Act unlike the ADEA, which protects only individuals over age 40 prohibits discrimination based on any age, from “birth to death.” See, e.g., Marchinko v. Wittemann Co., Case No. 05-2062 (DOAH November 1, 2005), FCHR Order No. 06-005 (January 6, 2006); Coffy v. Porky’s Barbecue Restaurant, Case No. 04-4316 (DOAH March 18, 2005), FCHR Order No. 05-053 (May 18, 2005). In addition, unlike the federal statute, the Florida Civil Rights Act prohibits favoring the old over the young, as well as the young over the old. See Id. As a result, the Commission has held that an individual seeking to establish a prima facie case of age discrimination need establish only that he was replaced by someone of a “different” age rather than someone younger. See Id.
This conclusion does nothing to detract from the common sense holding in O’Connor that the “difference” in age between the person claiming age discrimination and his replacement must be “significant.”
Here, Petitioner did not establish even a prima facie case of age discrimination because she did not establish who her replacement was and that person's age.
Petitioner met only three of the four elements required under Chapter 760, Florida Statutes (2006): (1) she is a member of a protected class in that she is over 40 years of age; (2) she was subject to adverse employment action in that she was terminated from her job as a Librarian I; and (3) she was qualified to do the job in that she was able to complete the necessary tasks associated with being a Librarian I. However, Petitioner failed to establish the fourth element that she was replaced by a younger person or a person of a different age.
Having failed to establish all four elements required under Chapter 760, Florida Statutes (2006), Petitioner has not proved a prima facie case.
Assuming arguendo that Petitioner proved a prima facie case, Respondent has articulated and substantiated its legitimate reason for Petitioner’s dismissal. The evidence adduced at the hearing clearly established that Petitioner was discharged because of her job performance, as reflected by her failure to perform an assigned job task.
Petitioner has not proved, by a preponderance of the evidence, that Respondent’s reliance on her inadequate job performance was a mere pretext for age discrimination. In fact, the evidence established that when Petitioner was terminated from her job as a librarian, she was 50, and the average age for
professional and managing librarian staff employed by the Pasco County Library System was 46.
In sum, Petitioner failed to prove, by a preponderance of the evidence, that she was discharged from her job as a Librarian I because of her age.
That the Florida Commission on Human Relations issue a final order finding that Respondent committed no unlawful employment practice and dismissing the Petition for Relief.
DONE AND ENTERED this 31st day of January, 2007, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2007.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Cecil Howard, General Counsel 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.
