STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD TEMPLES, )

)

Petitioner, )

)

vs. )

) LEVITON MANUFACTURING COMPANY, )

)

Respondent. )

Case No. 06-3534

)

RECOMMENDED ORDER

Pursuant to notice, this case was heard before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings, on May 30 and 31, 2007, in Tampa, Florida.

APPEARANCES

For Petitioner: Edward Temples, pro se

Post Office Box 150 Kathleen, Florida 33849

For Respondent: Rachel M. LaMontange, Esquire

Wilson, Elser, Moskowitz Edelman and Dicker LLP

3800 Bank of America Tower

100 Southeast Second Street Miami, Florida 33131

STATEMENT OF THE ISSUES

Whether Respondent unlawfully terminated the employment of Petitioner, because of his age in violation of the Florida Civil

Rights Act of 1992, as amended, Section 760.10, Florida Statutes.

Whether Respondent retaliated against Petitioner by terminating him on October 3, 2005, after Petitioner filed a complaint with human resources alleging a hostile work environment.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations ("FCHR"), on or about December 2, 2005, alleging Respondent discriminated against him because of his age and, further, that Petitioner's termination was the result of retaliation. On or about August 28, 2006, the FCHR issued a Determination: No Cause. Petitioner timely filed a Petition for Relief, alleging that he was subjected to a hostile work environment due to his age, and retaliation for filing a harassment complaint and requested a final hearing.

The FCHR subsequently referred this matter to the Division of Administrative Hearings ("DOAH") on September 19, 2006, for a de novo final hearing.

After discovery and two continuances in this matter, granted at the Petitioner's request, the final hearing commenced on May 30, 2007, and was concluded on May 31, 2007. Petitioner appeared pro se and testified on his own behalf. Additionally, Petitioner presented the live testimony of: his wife, Cindy

Temples; Leviton employees, Robert Reisdorph and Kevin Bouton; Graybar employee, Ron Tucker; and Terry Weldy of Dave Carter and Associates. Petitioner also presented the depositions of the following witnesses: Susan Dinolfo, Andrew Buchanan, Scott Robbins, Andrew Hunter, George Spruce, Dan Hicks, Jamie Majors, Ricky Jessup, Charles Hicks, Romulus Dante Scoglio, Dave Wilga, Ray Richards, Doug Reeves, and Gordon Walsh. Additionally, Petitioner offered a large volume of documentation for use as exhibits; however, only portions of Petitioner's documents were admitted into evidence as Petitioner's Exhibit 15 (composite) in the form of a three-ring binder – consisting of Petitioner's exhibits marked for identification A through Z, and 1

through 13.

Respondent presented the live testimony of two witnesses: Warren Goodman, Petitioner's former supervisor; and Teresa Varner, a branch manager of HD Supply. Respondent also presented the testimony of Kimberly Shephard, Respondent's Corporate Human Resources Manager, by deposition. In addition to the foregoing, Respondent presented exhibits that were admitted into evidence in the form of a three ring binder – consisting of Respondent's Exhibits A through X, and BB through JJ, and marked as Respondent's Exhibit 2 (composite).

Volume One of the final hearing Transcript was filed on June 18, 2007, and Volumes Two and Three of the Transcript were

filed on June 25, 2007. The parties were granted 20 days from the filing of the Transcript in which to file proposed findings of fact and conclusions of law. Petitioner filed his proposal on July 16, 2007. Respondent filed its proposal on July 12, 2007. The parties' proposals have been reviewed and carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Leviton Manufacturing Corporation manufactures electrical equipment and components. It is a New York corporation licensed to do business in the State of Florida. Inter allia, Respondent employs a sales force that covers the entire State of Florida.

2. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 ("FCRA").

3. Respondent has implemented an employee handbook aimed at fostering a work environment that is free from harassment, discrimination and retaliation. Respondent's policies contain reporting and investigation procedures that encourage employees to report any and all incidents of perceived discrimination or harassment, and ensure that all reported incidents are investigated.

4. Petitioner was employed with Respondent from June 1995 until November 2003, and from July 2004 through October 3, 2005. At the time of his termination, Petitioner was 49 years old.

5. Petitioner first began working for Leviton in 1995 as a Service Representative. He received merit pay raises and promotions until November 2003, when Respondent laid-off 150 people in the retail division, including Petitioner. Petitioner was rehired in July 2004, as a Sales Representative. Upon rehire, Petitioner was supervised by District Manager Scott Robbins ("Robbins").

6. Petitioner presented the testimony of three of Respondent's managers, one retired, who supervised Petitioner for various periods of Petitioner's nine and one-half year career with Respondent. Each of them testified that Petitioner was dedicated and professional in which ever position he was assigned, including two assignments as a manager. Scott Robbins, Petitioner's supervisor immediately prior to Goodman, recommended Petitioner for re-hire as a Sales Representative following a lay-off, and was satisfied with his work in that position.

7. Petitioner also presented the testimony of 12 customers of Respondent, in the territory that he covered between

   July 2004 and October 2005. Each of them expressed their opinion that Petitioner was an honest, diligent, and

   professional sales representative for his employer. Respondent presented the testimony of one customer who was not satisfied with Petitioner's performance as a sales representative.

8. In January 2005, District Manager Warren Goodman ("Goodman") replaced Robbins and assumed his territories as well as his role as Petitioner's supervisor. At the time Petitioner was terminated, Goodman was 48 years old.

9. Goodman supervised, and currently supervises, at least,

12 Sales Representatives, the majority of whom are over the age

readily apparent that Goodman's management style was distinctly different from Robbins. Goodman is demanding, blunt and aggressive, and closely manages his sales representatives. He expected prompt and accurate responses to his requests from his sales representatives.

1. Petitioner was required to fulfill the same job expectations that were demanded of all other Sales Representatives. It included, but was not limited to, the timely submission of complete and accurate paperwork, client follow up, and travel to specific areas within his designated territory. Petitioner's area extended from Lakeland, Florida, to Thomasville, Georgia. Goodman expected Petitioner to visit customers in his territory at least every three weeks, staying at least two to three days on each trip at each location.

2. Goodman's job as District Manager is to oversee his sales force and to enforce Leviton's guidelines, as he interprets them. Moreover, Goodman is charged with measuring his employees' compliance with Leviton's policies and procedures.

3. Over the course of his tenure, Petitioner failed to abide by company rules and policies, as well as the terms of his employment, as understood by Goodman. On more than one occasion, Petitioner failed to provide expense reimbursements in an appropriate and timely manner. He also failed to travel with the frequency required by his sales position. Additionally, on numerous occasions, Petitioner failed to verify the accuracy of orders he placed for customers.

4. On May 2, 2005, Goodman sent Petitioner an email addressing the importance of administrative responsibility and

   consistency. Goodman had just reviewed Petitioner's expense reports and noted that they covered a ten-week period, clearly in violation of the requirement that they be submitted within 30 days. Goodman also noted that the expense reports reflected no travel over a two-month period to the Thomasville/Tallahassee area, which composed a large portion of Petitioner's territory. Goodman requested that, thereafter, Petitioner forward his itinerary weekly, attaching as an example a copy of itineraries submitted by Petitioner's colleagues.

5. Petitioner responded, apologizing for the late expenses. He attributed his tardiness in part to a change in his cellular telephone carrier. Petitioner set forth all his travel dates within the northern portion of his territory since his re-hire. The dates provided demonstrated that he was not in compliance with the travel requirements established for all Sales Representatives. Goodman responded and reminded Petitioner of the importance of adhering to guidelines for travel and paperwork submission. He encouraged Petitioner to improve his performance and to do what was necessary to satisfy Goodman's expectations of the proper skills necessary to do his job effectively.

6. On May 9, 2005, Petitioner sent Goodman an email indicating his car was being repaired. The repair estimates attached to the email evidenced that Petitioner had been driving

   a 12-year-old vehicle, which was not within Respondent's car policy guidelines. Petitioner had reviewed and signed the car policy guidelines on January 12, 2005, and began receiving monthly payments (including retroactive payments), effective February 11, 2005.

7. On May 18, 2005, Petitioner received and signed an Employee Warning. Significantly, Petitioner signed the Employee Warning indicating that he read and understood it. The Employee Warning cited violations for substandard job performance and violations of company policies or procedures, with specific reprimands for: (1) failure to timely submit expense reports;

   (2) failure to travel as specified and agreed to; (3) sloppy submission of paperwork; (4) lack of involvement with customer; and (5) failure to maintain a proper company vehicle in accordance with company policy.

8. Shortly thereafter, Petitioner purchased a new truck for the purpose of meeting the company vehicle policy.

9. On May 31, 2005, Goodman reviewed numerous quotes submitted by Petitioner for review and renewal. Goodman informed Petitioner that upon review, the quotes prepared by Petitioner were inaccurate and required various revisions and corrections. Some quotes were priced higher than stock; different prices were entered for the same item in a different color (when there should have been no price difference); there

   were items on quotes that were never purchased; and there was no increase in items ordered/quoted.

10. In August 2005, Goodman advised Petitioner that his sales goals were not ambitious enough and that Petitioner needed to re-evaluate and re-consider his year-end goals. Petitioner indicated that he would do as instructed.

11. In mid-August 2005, Petitioner once again submitted an incomplete quote to Goodman for approval. When brought to Petitioner's attention, he added the items missing from the quote, offering no explanation for this oversight.

12. On August 30, 2005, Petitioner submitted order adjustments to Goodman's administrative assistant for completion. When the request was forwarded to Goodman, he immediately reminded Petitioner that all changes were required to be submitted to him, not his assistant. Moreover, the requested changes contained errors. Goodman requested that Petitioner review the complete order and re-submit it when it was accurate. Three days later, Petitioner still had not acknowledged or responded to Goodman's request.

13. Goodman completed and submitted Petitioner's performance review on July 25, 2005. Due to the fact that no prior goals or skills development were accomplished by Petitioner, his review was deferred until the end of 2005. Based upon his seven-month assessment of Petitioner, Goodman

    felt that Petitioner only partially met expectations. Rather than precluding a merit increase in salary, Goodman gave Petitioner an opportunity to improve his performance by deferring his review for several months. Petitioner signed this July review, indicating that Goodman discussed the review and appraisal with him.

14. On September 5, 2005, (Labor Day, a holiday) Goodman sent an email to all of his Sale Representatives, which required a response to specific inquiries no later than 5:00 p.m. Petitioner did not respond until September 7, 2005, at 4:15 p.m. This was clearly past the deadline. Goodman reprimanded Petitioner in his responsive email, specifically advising Petitioner that his continued employment was in jeopardy. He invited Petitioner to call Goodman the next day to discuss Petitioner's lack of diligence and timeliness.

15. Only after a telephone call on the morning of September 9, 2005, did Petitioner, for the first time raise the issue of unfair treatment, but he did not raise age as a factor. Petitioner requested, via email, that Goodman assist Petitioner in filing a complaint against Goodman with Leviton's Human Resource Department for creating a hostile work environment. In this same email, Petitioner informed Goodman that Petitioner had involved clients in his grievance by requesting that the clients

    evaluate Petitioner's performance and provide their input to Respondent.

16. Based upon the preceding client involvement, Goodman advised Petitioner on September 12, 2005, that he was suspended immediately, with pay, pending the outcome of Respondent's investigation regarding Petitioner's inappropriate conduct. Petitioner was therefore instructed to maintain contact with only the Human Resources Department (HR) until further notice.

17. Thereafter, Petitioner corresponded, via email, with Shephard. On September 13, 2005, Petitioner forwarded his

    May 5, 2005, email exchange with Goodman to Kimberly Shephard, Respondent's Corporate Human Resource Manager. On that same day, Petitioner sent another email to Shephard containing a list of items that were still incomplete and required follow up. In forwarding this lengthy "to do" list, Petitioner demonstrated his inattention to detail and inability to complete administrative tasks.

18. On September 16, 2005, Shephard drafted Petitioner's allegations in memorandum format, the accuracy of which Petitioner verified and signed on September 20, 2005.

19. Goodman was given a copy of the allegations and provided a written response on September 19, 2005, refuting each of Petitioner's allegations.

20. Meanwhile, HR conducted interviews with a random selection of Goodman's employees in the district and noted each employee's assessment of Goodman. Goodman was determined by each of the interviewed employees to provide equal treatment to all employees. The employees interviewed ranged in age from 35 to 58.

21. On or about September 20, 2005, Shephard completed her investigation of Petitioner's complaint and determined that there was no basis that Goodman created an unlawful hostile work environment. Rather, it was determined that Goodman set the same standards for all of his employees; treated them all the same; and that accordingly, there was no basis to conclude Petitioner was singled out.

22. Petitioner was ultimately terminated on October 3, 2005. The reasons cited by Respondent were based on Petitioner's unsatisfactory job performance. The specific reasons given for Petitioner's termination were: (1) his inability to perform the tasks associated with the Sales Representative position; (2) his failure to develop end-users sufficiently; (3) his administrative inadequacies; (4) his failure to meet deadlines and failure to follow instructions; and (5) his choosing to enlist customers in an internal company matter pertaining to Petitioner's poor job performance.

23. Although Respondent determined that Petitioner's involvement of customer's in an internal dispute was grounds for immediate termination, Respondent determined it would investigate Petitioner's complaint prior to taking other action, since it occurred at the same time as the allegations of improper conduct by Goodman.

24. At no time was Petitioner's age raised as a factor in any of the terms and conditions of his employment by Respondent. Nor was it a factor in any work related complaints regarding his deficiencies.

25. Petitioner never informed any member of Respondent's management that he believed he was treated differently during his employment because of his age, or that he had been terminated due to his age.

26. After Petitioner was terminated, Respondent did not hire anyone to replace him. Rather, Respondent re-assigned Petitioner's territory to existing salesmen. Paul Dube ("Dube"), aged 41, inherited the majority of Petitioner's territory. Goodman did not require that Dube travel to, or invest time in customers that only did a nominal amount of business with Respondent.

27. Petitioner attempted to establish that he was unable to respond to several of Goodman's inquiries in a timely manner, or at all, because Petitioner's computer was being repaired by

    Respondent's IT department. Nevertheless, Petitioner had access to his work email via Respondent's webmail program during this period.

28. Petitioner failed to prove by a preponderance of the evidence that he was terminated by Respondent because of his age.

29. Respondent failed to prove by a preponderance of the evidence that he was subject to retaliation after he filed a hostile work environment complaint with Respondent's HR department.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding, pursuant to Section 120.569 and Subsections 120.57(1) and 760.11(7), Florida Statutes (2005).1

31. The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended.

    42 U.S.C. § 2000e, et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discrimination against any individual with respect to compensation, terms, conditions, or

    privileges of employment because of, inter alia, such individual's age. § 760.10 (1)(a), Fla. Stat. The FCHR and the Florida Courts interpreting the provisions of the Florida Civil Rights Act of 1992 have determined that federal discrimination laws should be used as guidance when construing provisions of the Act. 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). However, in regard to the age discrimination alleged in the Petition for Relief, it is noted that the FCHR has stated, "While the federal Age Discrimination in Employment Act uses the age of 40 as the age at which the Act's protection begins (see 29 U.S.C. § 631), the age of 40 has no significance in interpreting the Florida Civil Rights Act of 1992, or its predecessor, the Human Rights Act of 1977, as amended. The FCHR has consistently held that Florida law prohibits discrimination in employment on the basis of any age, birth to death . . .". Green v. ATC/Vancom Management, Inc., 20 F.A.L.R. 314, at 315 (FCHR 1997). Accord, William v.

    Sailorman, Inc., d/b/a Popeye's Chicken and Biscuits, FCHR Order No. 04-03 (June 2, 2004); Roberts v. Argenbright Security, Inc., FCHR Order No. 05-019 (February 22, 2005).

32. Petitioner has the ultimate burden to prove discrimination either by direct or indirect evidence. Direct evidence is evidence, which, if believed, would prove the

    existence of discrimination without inference or presumption. See Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989). Only the most blatant remarks whose intent could only be to discriminate on the basis of age constitute direct evidence. See, e.g., Lindsey v. American Cast Iron Pipe Co., 772 F.2d 799, 801 (11th Cir. 1985) (supervisor's statement that plaintiff would not be considered because he wanted a younger person for a job opening, constituted direct evidence of age discrimination). Petitioner has not presented any evidence which would constitute direct evidence of discrimination.

33. Absent any direct evidence of discrimination, the Supreme Court established, and later clarified the burden of proof in disparate treatment cases in St. Mary's Honor Center v. Hicks, 509 U.S. 502, (1993); Texas Department of Community

    Affairs v. Burdine, 450 U.S. 248, (1981); and McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985). McDonnell Douglas places upon the Petitioner the initial burden of proving a prima facie case of age discrimination. See also Davis v. Humana of Florida, Inc.,

    15 FALR 231 (FCHR 1992); and Laroche v. Department of Labor and Employment Security, 13 FALR 4121 (FCHR 1991).

34. To establish a prima facie case of discriminatory treatment, Petitioner must show that:

    1. Petitioner is a member of a protected group;

    2. Petitioner is qualified for the position held;

    3. Petitioner was subject to an adverse employment decision (Petitioner was terminated); and

    4. His former position was filled by a person outside the protected class, or that Petitioner was treated less favorably than a similarly-situated person outside the protected class.

       Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002); Chapman v. A1 Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000).

35. Proving a prima facie case serves to eliminate the most common non-discriminatory reasons for Petitioner's disparate treatment. See Teamsters v. U.S., 431 U.S. 324, 358,

    n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred, because experience has proven that in the absence of any other explanation, it is more likely than not that those actions were based upon impermissible considerations. The presumption is

    that, more often than not, people do not act in a totally arbitrary manner without any underlying reason in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978).

36. Applying the standards for a prima facie case of age discriminate`ion as set forth in McDonnell Douglas, Petitioner satisfies the first element -- that he belongs to a protected class, as he was aged forty-nine, when he was terminated. Petitioner also satisfies the third element –- that he was subjected to an adverse employment action, i.e., he was terminated.

37. With reference to the second element of his prima facie case, Petitioner has presented sufficient evidence that establishes he was indeed qualified for the position he held as an Electrical Division Sales Representative. When Petitioner was re-hired as an Electrical Division Sale Representative, the evidence presented demonstrated that, prior to Goodman becoming Petitioner's supervisor, Petitioner had not been cited for having difficulty following company procedures, as well as completing his duties as a sales representative.

38. As for the fourth prong of his prima facie case, Petitioner has not established that he was replaced by an individual outside the protected class. Respondent did not replace Petitioner, but rather divided his territory among the

    existing sales force; and the individual that Petitioner alleges "took over" the majority of Petitioner's territories, Dube, is

    41 and can be considered a member of the same protected class.

    
    

    See Coutu v. Martin Board of County Commissioners, 47 F.3d 1068, 1075 (11th Cir. 1995); See also Hawkins v. Ceco Corp., 883 F.2d 977, 983-84 (11th Cir. 1989)(holding that plaintiff failed to establish a prima facie case, because he was replaced by a member of his own protected class).

39. Therefore, Petitioner must show that he was treated less favorably than other employees who were "similarly situated" in all relevant aspects. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). To make such a determination, consideration must be given to "whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Id. A claim of discriminatory discipline requires a showing that the misconduct for, which the petitioner was disciplined was "nearly identical" to that engaged in by an employee outside the Petitioner's protected class and that the Petitioner was treated in a less favorable manner. Jones v. Winn-Dixie Stores, Inc., 75 F. Supp. 2d 1357, 1367 (S.D. Fla. 1999).

40. At the final hearing, Petitioner failed to establish that other salesmen, under the supervision of Goodman, engaged

    in the same or similar conduct as Petitioner and were not disciplined for such behavior.

41. Petitioner presented no evidence that any other salesman failed to travel to their primary territories on a regular basis as demanded by Goodman; that any salesmen turned in sloppy paperwork that was unsatisfactory to Goodman; that any salesmen were in violation of Respondent's car policy; that any salesmen failed to respond to Goodman's inquiries in a timely manner; that any salesmen failed to develop end-user customers; or that any salesmen failed to timely submit expense reports.

42. Evidence was presented at final hearing that Dube was not required to call upon all distributors. However, Goodman explained that this was because the distributors Dube did not call upon were nominal customers of Respondent. This evidence was not rebutted by Petitioner.

43. No other evidence was provided to establish there was any other similar conduct by either Dube or the other Electrical Sales Representatives. Because of the differences in the number and nature of complaints, Petitioner and Dube – or any other salesmen under Goodman's supervision – have not been shown to be "similarly situated," and the alleged "misconduct" was not "identical." See Jones v. Winn-Dixie Store, Inc., supra at 1364-1365 (dismissing discrimination claim, because the plaintiff failed to demonstrate that similarly situated

    employees received more favorable treatment than he); Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989)(affirming dismissal of discrimination claim, because the plaintiff could not prove that employees outside of his protected class were treated more favorably).

44. Once an employee has met his initial burden, the employer must then articulate some legitimate, non- discriminatory reason for the challenged employment decision. The employer is required only to "produce admissible evidence, which would allow the trier of fact to rationally conclude that the employment decision had not been motivated by discriminatory animus." Burdine, 450 U.S. at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . [i]t is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at 254. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983). The burden to articulate a legitimate business reason for the action is one of production, not persuasion. The credibility of the non-discriminatory reasons need not be weighed at this stage of the burden-shifting analysis. Reeves v. Sanderson Plumbing

    Products, Inc., 530 U.S. 133, 142 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. at 509.

45. Assuming, arguendo, Petitioner has presented a prima facie case of discrimination, Respondent, next, must carry the burden of articulating some legitimate, non-discriminatory response for terminating Petitioner. The record evidence shows that Goodman ultimately decided to terminate Petitioner due to the fact that Petitioner had involved clients in an internal disciplinary matter. Moreover, Petitioner did not dispute that he informed Goodman that he sought to engage clients in this internal matter. He actually confirmed that he relayed this information to Goodman. During the final hearing, Petitioner also admitted he did not comply with Respondent's car policy and that he responded late to his supervisor's inquiries. Accordingly, Respondent has established legitimate, non- discriminatory reasons for its actions.

46. Once the Respondent articulates a legitimate reason for the action taken, the evidentiary burden shifts back to Petitioner, who must prove, by more than mere conjecture, that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. Texas Department of Community Affairs v. Burdine, 450 U.S. at 255-56. The Supreme Court emphasized that the ultimate burden of persuading the trier of fact that Respondent intentionally discriminated against Petitioner remains at all times with Petitioner. Id. at

253. The employer need not prove that it was actually motivated

by the articulated non-discriminatory reasons, or that the replacement was more qualified than Petitioner. Id. at 257-58. Even when the non-discriminatory reasons articulated by Respondent have been demonstrated by the Petitioner to be false, the Petitioner must still prove that the adverse action truly was based upon unlawful discrimination. St. Mary's Honor Center

v. Hicks, supra, 509 U.S. at 518-19.

1. In this matter, Respondent has articulated legitimate, non-discriminatory reasons to support Petitioner's termination. Moreover, all employees interviewed during the Human Resources investigation stated that they were treated the same by Goodman

   –- even two salesmen who are older than Petitioner by almost ten years. Even assuming that these statements are not fully credible, Petitioner retains the burden of persuasion. He must prove, by a preponderance of evidence, that the legitimate reasons offered by Respondent were not the true reasons, but rather, were pretext for intentional discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. at 253.

   Petitioner has failed to produce any evidence demonstrating that Respondent's legitimate reasons for his termination are actually a pretext for discrimination.

2. To the extent Petitioner has attempted to prove discrimination by presenting evidence that certain customers/distributors thought Petitioner was a good sales

   representative, these evaluations do not suffice to rebut the articulated reasons for Respondent's employment decision. The law is clear that "[t]he inquiry into pretext centers upon the employer's beliefs, [emphasis supplied] and not the employee's own perception of his performance." Holifield v. Reno, 115 F.3d at 1565; LeBlanc v. The TJX Companies, Inc., 214 F. Supp. 2d 1319, 1331 (S.D. Fla. 2002); Webb v. R & B Holding Co., 992

   F. Supp. 1382, 1387 (S.D. Fla. 1998) "[The employee's] perception of himself . . . is not relevant. It is the perception of the decision maker, which is relevant."

3. Respondent's articulated reasons that Petitioner was terminated for his inability to perform tasks associated with his position, constitutes a legitimate, non-discriminatory reason for Petitioner's termination. See LeBlanc, 214 F. Supp. 2d, at 1328. Petitioner admitted that he was late in submitting expense reports and in responding to several of Goodman's requests/assignments. Likewise, Petitioner admitted that he was not in compliance with Respondent's car policy, even after he signed the policy in January 2005 and received past, unpaid car allowance payments (covering the period from July 2004 through February 2005) in February 2005. Petitioner indicated in an email, dated September 9, 2005, and testified at the final hearing on May 30, 2007, that he informed Goodman that

   Petitioner sought to enlist customers in this internal matter, by asking the customers to evaluate Petitioner's performance.

4. Overall, Petitioner presented no direct or circumstantial evidence of age discrimination. It has been shown that Petitioner had a personality conflict with Goodman from the start, and that Petitioner profoundly disagrees with Goodman's management style, and felt harassed by his conduct toward him. However, this does not amount to unlawful hostile work environment discrimination.

5. Petitioner has made conclusory allegations of age discrimination, and based these allegations upon his subjective beliefs that discrimination occurred. The Eleventh Circuit has stated that, "[c]onclusory allegations of 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 action." Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1471 (11th Cir. 1991), quoting Carter v. City of Miami, 870 F.2d at 585. In the absence of intent to discriminate, courts have repeatedly recognized that it is not their role to second guess or scrutinize an employer's legitimate business decision. See Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000)(recognizing that courts "do not sit as a super-personnel department that re-examines an entity's

   business decisions"). Courts and administrative agencies are "not in the business of adjudging whether employment decisions are prudent or fair." Pashoian v. GTE Directories, 208 F.Supp. 2d 1293, 1309 (M.D. Fla. 2002); See also Chapman v. A1 Transport, 229 F.3d 1012, 1031 (11th Cir. 2000). Rather, courts are to be concerned only with the questions of whether discriminatory animus motivated a challenged employment decision. Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999).

6. Respondent has established that it had a good faith belief that Petitioner's performance was unacceptable and that Petitioner had involved customers in an internal dispute. See EEOC v. Total System Services, Inc., 221 F.3d 1171, 1176 (11th Cir. 2000)(in an employment context, a decision-maker's good faith belief is the relevant inquiry).

7. Petitioner's primary argument is that Respondent was wrong when it concluded his performance was deficient. However, it is well-settled that even if an employer wrongly believes that an employee's performance was unacceptable, acting upon that belief does not give rise to a discriminatory motive. See Jones v. Gerwens, 874 F.2d at 1540 ("[t]he law is clear that, even if a Title VII claimant did not in fact commit the violation with which he is charged, an employer successfully rebuts any prima facie case of disparate treatment by showing

   that it honestly believed the employee committed the violation"). Following this legal authority, Respondent was entitled to conclude that Petitioner's unacceptable handling of his administrative duties, as well as customer's concerns/needs, were valid grounds for termination, provided this practice is enforced in a non-discriminatory manner.

8. Even if Petitioner could cast doubt on the reasons for his discharge, his claim nevertheless would fail, because Petitioner has offered no proof that his age was the reason for his discharge. See Reeves v. Sanderson Plumbing Products, Inc.,

   530 U.S. at, 146-47 (noting that a plaintiff must do more than simply prove that the employer's proffered reason for discharge is false by presenting evidence of intentional discrimination). It is well-settled that an employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or no reason at all, as long as its action is not for a discriminatory reason. Damon, 196 F.3d. at 1361. Petitioner's conclusory allegations that Respondent discriminated against him is Petitioner's attempt to second-guess Respondent's business decisions in its efforts to manage Petitioner. See Elrod, supra at 1470.

9. Although an employee's claim of retaliation is a separate violation of the FCRA. Petitioner must nevertheless prove that he "ha[s] a reasonable, good faith belief that

   discrimination occurred." Meeks v. Computer Assocs. Int'l., 15 F.3d 1013, 1021 (11th Cir. 1994).

10. If Petitioner has direct evidence that he was subjected to retaliation due to his participation in activities sanctioned by law or due to his opposition to prohibited practices, he must prove, by a preponderance of that evidence, that his activities were a significant factor in the termination decision by the company. However, if the Petitioner does not have direct evidence, he must establish a prima facie case for retaliation under the shifting burden analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

11. An employee claiming retaliation must show: (1) He was engaged in a protected activity; (2) He was subjected to an adverse employment action, subsequent to or contemporaneous with the protected activity; and (3) There is a causal connection between the protected activity and the adverse employment action. The McDonnell Douglas test is designed for litigation based upon circumstantial evidence and places upon Respondent company only the obligation to articulate a valid, non- discriminatory reason for its decision to terminate Petitioner. Under the McDonnell Douglas analysis, the burden of proof would then shift back to Petitioner, not only to show that the articulated non-discriminatory reason is pretextual, but, also,

    to sustain his ultimate burden of persuasion of retaliatory intent by the Respondent.

12. In the case sub judice, Petitioner has satisfied the first element by establishing that he engaged in a protected activity by filing an internal complaint against Goodman with Respondent's Human Resources Department. Petitioner has also established that he was subjected to an adverse employment decision by his subsequent termination from employment. However, Petitioner has completely failed to establish or prove by credible, persuasive evidence that there is a causal connection between his protected activity and his ultimate discharge from employment. Petitioner did not present any direct or circumstantial evidence sufficient, in and of itself, to sustain his burden of proof. The mere sequence of events whereby termination follows a report of unlawful discrimination does not in and of itself prove retaliatory intent; nor absent

    more circumstantial evidence, do such circumstances establish an irrefutable presumption of retaliatory design or discriminatory purpose. Moreover, it is significant that Petitioner never complained about a hostile work environment until after he was specifically told by his supervisor that his job was in jeopardy.

13. Petitioner has failed to show that the adverse employment action taken against him (i.e., his termination) was

    done in a discriminatory manner. Additionally, Petitioner has failed to show any nexus between these acts and his charge. The only reason that the adverse employment action and the protected activity occurred in proximity, was that Petitioner only filed his grievance after he was told that his perceived poor performance could lead to his being fired. Accordingly, Petitioner has failed to meet his burden.

14. Respondent has demonstrated legitimate non- discriminatory reasons for the actions alleged to be retaliatory, to wit: Petitioner chose to enlist customers in an internal dispute. Moreover, Respondent's employment policies clearly prohibit discrimination and retaliation against its employees. As such, Petitioner has failed to present any credible evidence to support his claim that any of Respondent's actions were pretextual.

15. The record evidence established that Petitioner was exposed to nothing more than typical workplace issues. The court in Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1234 (11th Cir. 2006), held that the Civil Rights Act is "neither a 'general civility code,' nor a statute making actionable the 'ordinary tribulations of the workplace.'"

16. Respondent has done nothing more than proceed with a course of action that was justified by Petitioner's perceived inadequate job performance and inappropriate behavior. The U.S.

Supreme Court has specifically ruled that an employer may proceed along previously contemplated lines, even though a discrimination complaint is filed, and that the employer's actions would not become evidence of causality. See Clark County School District v. Breeden, 532 U.S. 268 (2001). In the present matter, it became clear to Petitioner that his job was in jeopardy. Even after a written warning and deferred merit evaluation, he did not improve his performance to Goodman's satisfaction. Goodman expressed to Petitioner that his shortcomings were detrimental to his position. Respondent could not be expected, and is not required, to retain an employee that could not meet company standards and follow employee guidelines simply because Petitioner filed a complaint with Human Resources. Rather, Respondent is entitled to take action upon Petitioner's poor performance evaluations in the same manner it would have, absent the complaint to Human Resources. As such, Petitioner has failed to show that Respondent's termination of his employment was done in a discriminatory manner and, thus, Petitioner's discrimination claims under Subsection 760.10(1), Florida Statutes, fail as a matter of law.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Petitioner's Petition for Relief and dismissing his charge with prejudice.

DONE AND ENTERED this 13th day of August, 2007, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 13th day of August, 2007.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes (2005), unless otherwise indicated.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Edward Temples

Post Office Box 150 Kathleen, Florida 33849

Rachel M. LaMontange Wilson, Elser, Moskowitz

Edelman and Dicker LLP 3800 Bank of America Tower

100 Southeast Second Street Miami, Florida 33131

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: 06-003534

Orders for Case No: 06-003534