STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS HARLAN C. HAMER, ) ) Petitioner, ) ) vs. ) Case Nos. 08-4550 ) 08-4574 SHORELINE TRANSPORTATION, INC., ) ) Respondent. ) ) RECOMMENDED ORDER Pursuant to appropriate notice this cause came on for final hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, on April 16, 2009, in Pensacola, Florida. The appearances were as follows: APPEARANCES For Petitioner: Heather F. Lindsay, Esquire Lindsay & Andrews, P.A. 5218 Willing Street Milton, Florida 32570 For Respondent: Michael W. Kehoe, Esquire Fuller, Johnson Kehoe, Horky and Rettig, LLC 3298 Summit Boulevard, Suite 11 Pensacola, Florida 32503 STATEMENT OF THE ISSUES The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against based upon his age when he was not selected for promotion by the Respondent Corporation, and when he was ultimately terminated. PRELIMINARY STATEMENT This cause arose from the filing of charges of discrimination based upon age. See §§ 760.01 through 760.11, Fla. Stat. (2007). The Petitioner alleged, in two complaints filed with the Florida Commission on Human Relations (Commission), that the Respondent, Shoreline Transportation, Inc. (Respondent, Shoreline), committed an unlawful employment practice by discriminating against the Petitioner based upon his age. It is charged that the Respondent failed to promote the Petitioner, in January 2008, which claim culminated in Case 08-4574, and that the Petitioner was wrongfully terminated in February 2008, which resulted in Case 08-4550. The allegations in the Petitioner's charges were investigated by the Commission as separate claims and each was determined to be based upon "no reasonable cause." Timely petitions for relief were thereafter filed by the Petitioner and were transmitted to the Division of Administrative Hearings and to the undersigned Administrative Law Judge for conduct of a formal proceeding and hearing. In the absence of a motion, the cases were not formally consolidated, but were heard together on a consolidated record in the interest of economy. They are hereby consolidated sua sponte for purposes of adjudication in this single Recommended Order. The cause came on for hearing, as noticed on the above date. The Petitioner called four witnesses, including himself; Greg Bruce, Lloyd Randell, and Cheryl Allender. The Petitioner offered 31 exhibits, which were admitted into evidence, with the exception of Exhibit 5. The Respondent presented the testimony of witnesses Cheryl Allender, Jerry Adkins, Leland "Chip" Wasdin, Clayton Gremillion and Don Gremillion. The Respondent presented Exhibits 1, 5, 7 and 8, which were admitted into evidence. Upon conclusion of the proceeding, the parties elected to submit proposed recommended orders, although they ultimately declined to order a transcript of the proceeding. The proposed recommended orders have been considered in the rendition of this Recommended Order. FINDINGS OF FACT 1. The Petitioner, Harlan Hamer, has many years of experience working in the trucking industry, particularly in management capacities. He has been engaged in managing safety, finance and administrative operations of large motor carriers, as well as operational aspects of a 350- truck unit motor carrier corporation. He has an extensive knowledge of the various aspects of regulation and operations pertaining to the trucking industry. He is also a licensed commercial, Class A driver, qualifying him to operate commercial vehicles such as large, over-the-road trucks. 2. The Respondent is a dry-freight trucking company which, at the height of its operations in 2006-2007, operated 260 to 300 trucks. Apparently most of these were owned by the Respondent Shoreline. It employed the requisite number of drivers to keep this approximate number of trucks operating, as well as a significant number of office and terminal administrative, operations, management, and maintenance personnel. 3. In early 2007, the Petitioner interviewed with Shoreline concerning an employment position. He interviewed with Randa Shipp, who was a recruiter for Shoreline at that time. Ultimately, Mr. Hamer was not selected for that job and secured alternative employment as a driver for Mineola Water Company. Soon thereafter, however, he received a call from Shoreline offering him a position as a "night dispatcher." He accepted that position and began working for Shoreline on May 14, 2007, at a weekly salary of $750. He completed an application at that time in which he revealed his age. The Respondent thus became well aware of his age at the time it hired him. His resume also describes his birth year as being 1947. The Shoreline form which documents his hiring, signed by the safety director at that time, Cheryl Allender, also reflects that birth date. His age of 60 or 61 years, at times pertinent to this case, was well known by the Respondent and had been since he was hired. 4. The Petitioner had been a truck driver early in his career and later managed drivers. He was a manager for Pucket Oil Company; Santee Carriers, Inc; and Transwood, Inc. In some of these capacities he had been responsible for U.S. Department of Transportation mandated compliance with government regulations applicable to the trucking industry, as well as Equal Opportunity (EEO) compliance. 5. When the Petitioner was hired as a night dispatcher he was given approximately three nights of training. Greg Bruce, testifying for the Petitioner, was also a night dispatcher and the Petitioner's counterpart. For the first three months of his employment in 2006, however, Greg Bruce had worked with the dayshift team as a Fleet Manager, in which he performed dispatching duties, while managing a group of drivers. Beginning in October 2006, Bruce had worked as a night dispatcher. He testified that the Petitioner responded well to training and, as far as he knew, performed his duties well after commencing his employment. Bruce however, did not observe the Petitioner performing his duties after the training period ended because they worked at different times. He did establish that the Petitioner consistently arrived early for his shift and communicated regularly with the day shift team, before they departed at the end of their shift. He established that the Petitioner had a good attendance record, and was seldom or never absent, because he never had to "cover" the Petitioner's duties, which he would have done if the Petitioner had missed work. 6. The night dispatcher for Shoreline functioned alone while on shift, had to answer four telephone lines and respond to text messages from drivers, concerning any issues arising during the night. The night dispatcher was also required to communicate with customers and to generate new loads. The night dispatcher had responsibility for resolving equipment break-down issues for Shoreline as well as Shoreline Transportation of Alabama, a related trucking company under the same ownership. 7. The night dispatcher's duties were essentially the same as those performed during the day by fleet managers, as well as load data entry personnel and customer service personnel. The testimony of the Petitioner and Bruce, together, establishes that the Petitioner was generally adequately qualified to perform the duties of Night Dispatcher. 8. Mistakes were made by the night dispatchers, including the Petitioner, as well as by day-shift personnel. Day-shift personnel would sometimes omit a correct "pick-up number" so that the night dispatchers would have to search the office to locate a particular bill of lading to determine load/delivery information. Because of the large number of trucks on the road at any given time, resolving such issues could take a considerable period of time. Both the night dispatchers, including the Petitioner as well as the day-shift personnel, made mistakes such as entering incorrect numbers in the company record system concerning trucks, drivers and loads. The totality of the testimony and evidence shows, however, that, after training, and after gradually improving on the job the Petitioner was adequately qualified for the night dispatcher job at the time of his termination. 9. Sometime in August 2007, the Petitioner learned that the company would be hiring an Operations Manager to assist Clayton Gremillion in his operations management duties. The Petitioner therefore approached Clayton Gremillion (his supervisor) about his interest in being considered for that new position. Clayton Gremillion acknowledged in his testimony that the Petitioner had informed him of his interest in moving into a management position, and had informed him about his qualifications. Clayton Gremillion further acknowledged that the company was creating such a management position and that he told the Petitioner that he would "keep him in mind" for that position. 10. The position was not posted or advertised and there was no actual opportunity to make a formal application. In any event, the Petitioner was never interviewed for that position nor was it ever discussed with him, after the initial conversation he had with Clayton Gremillion. 11. Clayton Gremillion, and his father, Don Gremillion, the owner, interviewed and then hired Justin Allen for the new position, on January 21, 2008. He was hired as an Operations Manager, at a weekly salary of $1,346.15. Allen was much younger than the Petitioner, being born in 1979. 12. Mr. Bruce testified that he had more than 20 years experience in trucking management and he would have been qualified and wished to have been considered for the job. He testified that he considered the Petitioner even more qualified because of his longer experience in management with trucking companies with similar operations. 13. Justin Allen had much less experience in the trucking business than either the Petitioner or Greg Bruce. He did have a few years of experience working for J.B. Hunt Trucking Company, but he lacked significant management experience. Justin Allen was hired, however, because it was believed that he had business connections which would be of significant assistance in generating new revenue and accounts for the company, chiefly accounts with Lowe's and Wal-Mart. This was the primary reason for Shoreline to hire Allen, as well as the fact that it was considered important to obtain help for Clayton Gremillion in managing the company's operations. The evidence is not clear as to how much new revenue Allen may have generated for Shoreline. Allen also performed some human resource duties, as well as helping Clayton Gremillion in operations management. 14. In 2007, as well as into 2008, Shoreline was adversely impacted by an economy entering a severe recession, with a particularly severe financial strain caused by escalating diesel fuel prices. Indeed, Shoreline lost $1.7 million in 2007 and lost over $2 million in the first six months of 2008, which resulted in its closure, effective July 1, 2008. On that date, the company operations ceased and all assets and equipment were leased to Evergreen Transportation Corporation. 15. During the period leading up to this company closure, economic adversity caused Shoreline to take some 40 trucks out of service, in approximately early February of 2008. This resulted in the layoff of numerous drivers and some office personnel. 16. In early 2008, the New Orleans office of Shoreline was closed, due largely to economic conditions. An employee, Mike Hill, who had been staffing the New Orleans office, was transferred to the main office in Cantonment, Florida. 17. Mike Hill had been initially hired by Shoreline on August 30, 2004. He had worked in the trucking industry prior to that time as a driver and also had approximately ten months experience in dispatching before being hired by Shoreline. In 2007 and early 2008, Hill was being paid a $1,000 weekly salary plus a $300 car allowance. While working for Shoreline in the New Orleans area he serviced the Gulf States Coca-Cola Company account, at its facility in New Orleans, as one of Shoreline's most important customers. Hill is a substantially younger person than the petitioner, being born in 1971. 18. Apparently, Mr. Hill had communication difficulties, or disputes, with Coca-Cola's representative, Shawn Blazer. While that may have affected the decision to remove him from the Louisiana office and return him to the Florida office, the evidence shows that Shoreline kept the Coca-Cola account and had it serviced by Hill, and later Norman Macintosh and ultimately by Greg Bruce. Bruce testified that because of his efforts Shoreline regained business that Hill had lost with Coca-Cola. Be that as it may, the evidence shows that the primary reason that Mike Hill was transferred back to the Cantonment office was due to the economic downturn and the Respondent's closure of the New Orleans area office or terminal. 19. Mike Hill had worked for Shoreline since 2004 and had worked in the night dispatching and breakdown clerk position before Mr. Hamer ever joined the company. Consequently, due to his seniority and due to his relevant experience, Hill was moved back from New Orleans and given the position held by the Petitioner. 20. The Petitioner was therefore informed by Cheryl Allender, on or about February 6, 2008, that Clayton Gremillion had decided to terminate the Petitioner's employment because the position would be filled by Mike Hill. The Petitioner was told it was necessary to lay him off due to the need to reduce forces as a result of economic conditions. The financially-driven reduction of Shoreline's forces in New Orleans and the decision to retain Mike Hill who was an employee with seniority, according to the Respondent, led to the Petitioner's layoff. 21. In addition to the Petitioner, six other office personnel were laid off within thirty days of the Petitioner's layoff. Clayton Gremillion testified that there were certain performance deficiencies displayed in the Petitioner's work as a night dispatcher. These involved tardy or incorrect input of data into the computerized load/truck/customer tracking and records system, and some delays in arranging for the repair of truck break-downs and for alternative means of delivery or pick-up of the relevant loads. The primary reason for the layoff, however, was as a result of the reduction of forces in the New Orleans operation and the decision to transfer employee, Mike Hill, with his seniority, and experience in dispatch work, to replace the Petitioner in his position. 22. It is true that Shoreline hired some other personnel after the Petitioner's layoff, and in the face of the economic downturn. However, none of these personnel were hired to fill the Night Dispatch/Break-Down Clerk position that the Petitioner had occupied. Lloyd Randall was hired after the Petitioner was laid off. Lloyd Randall, born in 1954, was approximately seven years younger than the Petitioner. He was hired to work as a fleet manager on the recommendation of a mutual acquaintance to Clayton Gremillion. In fact, as Clayton Gremillion conceded, he hired him "as a favor to a friend." He hired him at a salary rate of approximately $475 per week. On the day of his hire, Mr. Randall decided he would not stay, whereupon Clayton Gremillion offered him $565 per week for the position. Mr. Randall, however, determined that it was not the type of work he desired and left after being employed for approximately one day. 23. Mike Hill, who had been hired in the position from which the Petitioner was terminated, left the company fairly soon, on March 31, 2008. The position which had been occupied by the Petitioner, and then Mike Hill, was next filled by Norman Macintosh, who is over 50 years of age and had worked with Shoreline since the 1980's. 24. Shoreline employed people in all age ranges. This included several over the age of 40, some over the age of 50, and some over the age of 60. In February 2008, for example, when the Petitioner was laid off, numerous drivers were employed over the age of 50 and Norman Macintosh and Jerry Adkins, longtime company employees, respectively in the dispatcher positions and maintenance supervisor positions, were over the age of 50. Mr. Adkins was over 60 years of age at the time. 25. Shoreline continued to run ads seeking to fill certain positions, including office positions, after the Petitioner's layoff. These were not ads seeking employees for the night dispatcher/break-down clerk position that the Petitioner had held, however. Although Shoreline hired some additional personnel after the Petitioner's layoff, none of them were hired to fill his position. 26. In any event, the Petitioner noticed the ads and called Jerry Adkins to find out "what was going on." The fact is, however, that in response to the ads the Petitioner never contacted anyone else at Shoreline in an effort to either get his former job back, or to seek some other position with the company, such as those referenced in the ads. 27. Mr. Adkins, the Maintenance Supervisor for Shoreline, was over 60 years of age. The Petitioner contends that he is a biased witness because he was a long- time company employee and, even after the cessation of company operations, still had a company-supplied vehicle. It is not found that this fact, together with any facts elicited on cross-examination of Mr. Adkins, or otherwise, has established him to be lacking in credibility, however. Mr. Adkins did not believe that the Petitioner's layoff was associated with his age. Instead, he stated that it was to accommodate bringing the more senior employee, Mike Hill, back to the company headquarters location from the closed New Orleans location and operation. His testimony is accepted as credible. 28. When the Petitioner learned that his former position with Shoreline was being advertised, in March 2008, he did not apply for it. He had an application pending with another trucking company at the time which he anticipated would be a better employment opportunity. Moreover, he did not apply for other employment positions which he maintains were filled with younger people. There is no evidence to show that in instances when substantially younger people were hired for positions with the company, before and after the Petitioner's layoff, that it was at the expense of persons more in the Petitioner's age range, who sought the positions also and were rejected. That was simply not shown, in addition to the fact that the Petitioner did not apply for other positions. In fact, these positions have fairly low pay levels. It thus may be that these positions, or some of them, were filled by significantly younger people because older, more experienced applicants would not be attracted by the relatively low pay levels. 29. In any event, had the Petitioner made an inquiry concerning being re-hired by the Respondent for any position, it would not likely have occurred. This is because of performance problems described by the testimony of daytime dispatcher Chip Wasdin, as well as by Clayton Gremillion. The Petitioner made mistakes and had difficulty ensuring that data was entered correctly into the company's computer system. The Petitioner acknowledged making mistakes in this regard, even after his first few months in his position. 30. In summary, it has not been demonstrated that the Petitioner was terminated, nor that he failed to receive the promotion to the management position, because of his age. The Respondent has established the above-referenced legitimate business reasons for the hiring of Justin Allen and Mike Hill. Other substantially younger people hired for positions, even if their tenure was very short in those positions in late 2007, or the spring of 2008, were not shown to be hired at the expense of the Petitioner or any other applicants in the Petitioner's age range. In fact, the Petitioner applied for no such positions. Given the overall tenor of Clayton Gremillion's testimony, it may even be the case that, in one or more of the hiring situations, the hiring related at least somewhat to cronyism. Clayton Gremillion admitted hiring Lloyd Randell as a favor to a friend, and the same may be true in terms of a friend's recommendation with regard to Justin Allen. 31. In any event, however, there was no showing of any intent to discriminate, based upon age, by the hiring of significantly younger people than the Petitioner, or in the failure to promote or the termination of the Petitioner. Finally, the lack of intent to discriminate based upon age is borne out by the fact that the Respondent was fully aware of the Petitioner's age in the spring of 2007, when it chose to hire him. CONCLUSIONS OF LAW 32. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008). 33. Section 760.10, Florida Statutes (2007), prohibits employment discrimination on the basis of age. 34. The burden of proof in this proceeding is on the Petitioner to establish by preponderant evidence that his termination from employment, and the failure to promote him to the position he sought, constituted unlawful discrimination based upon his age. See Florida Department of Transportation v. J.W.C. Company Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981). In a proceeding where the Petitioner asserts an unlawful employment practice, such as age discrimination, the burden of going forward with evidence may shift, but the ultimate burden of persuasion to establish proof of an unlawful employment practice remains with the Petitioner. St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993). 35. Because the Florida Civil Rights Act, Chapter 760 Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, federal case law interpreting the federal civil rights statutes applies to interpreting the provisions of Chapter 760. See Green v. Burger King Corp. , 728 So. 2d 369, 370-71 (Fla. 3rd DCA 1999); Green v. Seminole Electric Cooperative, Inc. , 701 So. 2d 646, 647 (Fla. 5th DCA 1997). 36. Intentional discrimination can be proven in two ways, either by direct evidence of discriminatory intent or through circumstantial evidence. See McDonnell-Douglas Corporation v. Green , 411 U.S. 792, 804 (1973); Burrell v. Board of Trustees of Georgia Military College , 1205 F.3d 1390, 1393-94 (11th Cir. 1997)("[D]irect evidence is 'evidence, which if believed, proves the existence of a fact in issue without inference or presumption'"). (Citation omitted by the court). 37. In the absence of direct evidence the Petitioner must attempt to prove his case through circumstantial evidence. The Petitioner must first establish a prima facie case of discrimination based upon age. Once the prima facie case is established, then the burden to go forward with evidence shifts to the Respondent to show a legitimate, non-discriminatory reason for the employment action in question. If the Respondent articulates such a reason, the burden to go forward shifts back to the Petitioner to show by a preponderance of the evidence that the reason offered by the Respondent is pre-textual and that its true reason is indeed discrimination. McDonnell- Douglas Corporation v. Green , 411 U.S. 790, 801 (1973); Lee v. GTE Florida , 223 F.3d 1249, 1253 (11th Cir. 2000). 38. Under the above-referenced burden-shifting analysis, The Petitioner must initially prove a prima facie case of age discrimination. In order to do this, the Petitioner must show that (1) he was a member of a protected age class; (2) that he was subjected to an adverse employment action; (3) that he was qualified for the job; (4) that he was replaced by a younger individual or that he was treated differently and less favorably than similarly-situated individuals of "different" age (as opposed to only those of a "younger" age). See Morris v. Emory Clinic , 402 F.3d 1076, 1082 (11th Cir. 2005). In terms of the demonstration the Petitioner must make in response to any showing of a legitimate, non-discriminatory reason for an adverse employment action, the Petitioner must demonstrate that the age of the Petitioner actually played a role in the employer's decision-making process and had a determinative influence on the outcome. See Chapman v. AI Transport , 229 F.3d 1012, 1024 (11th Cir. 2000), citing Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S 133 (2000). 39. The Petitioner has established that he is within a protected age class. He was clearly 59 or 60 years of age when he was hired and the Respondent was aware of this at the time. He was subjected to an adverse employment action in that he was not chosen for a management employment position, which he sought, and was later terminated from his employment position as Night Dispatcher/Break-Down Clerk. The Petitioner has also demonstrated that he was at least adequately qualified for his position from which he was terminated, as well as the position which he failed to win as a promotion, aside from the issues with the Petitioner's performance, in his night dispatcher/break-down clerk duties, shown by the Respondent. 40. The Petitioner has also established that he was replaced in his position, from which he was terminated, by a person substantially younger. That person, as to his age, complies with the five-year age difference threshold referenced in the opinion in Damon v. Fleming Supermarkets of Fla. Inc. , 196 F.3d 1354, 1360 (11th Cir. 1999) (substantially younger requirement satisfied where there was a five-year gap between employee ages). The same is true of the age of Justin Allen who received the position in operations management/sales to which the Petitioner aspired. Mr. Allen is substantially younger than the Petitioner. Thus, as to these factors, and these two petitions, the Petitioner has established a prima facie case concerning age discrimination. 41. Concerning hiring for other positions, aside from that which the Petitioner had occupied or one to which he aspired, it is true that, in a number of instances, the Respondent hired people younger than the Petitioner's age class, but it also retained people within the Petitioner's age class, or even slightly older, in the company's employ. This consideration is made without taking into account the ages of company drivers hired before or after the Petitioner's adverse employment action. The evidence shows generally that they represented all age ranges up to at least the late fifties. 42. It is also true that many of the people laid off in the Respondent's economic crisis were significantly younger than the Petitioner. Some of the terminations were voluntary and some were forced layoffs, due either to performance issues or to reductions in force due to poor economic conditions. The salient fact remains, however, that the Petitioner was not an applicant for any of those positions and did not compete for any of them. 43. Moreover, the job descriptions, duties, training, qualifications and experience required for those other positions were not shown to be substantially similar to the duties, qualifications, experience and training that the Petitioner possesses, or that were required, for the job he occupied or the job he sought, which Mr. Allen won. Thus, the preponderant evidence does not demonstrate that those employees, who were of a different age class from the Petitioner, who were hired before and after the Petitioner was terminated, or not promoted, were similarly-situated, in these particulars, to the Petitioner, so that they could be appropriate comparator employees. 44. Thus as to those other positions which the Petitioner references in his evidence and argument, the fourth element of a prima facie case of age discrimination has not been demonstrated. He has not demonstrated that similarly-situated employees, outside his age class, were treated differently and more favorably, because he has not shown them to be similarly-situated. 45. Even though the Petitioner has demonstrated a prima facie case as to the two specific job positions in question, the Respondent has articulated legitimate, non- discriminatory reasons for the termination, as well as for failing to place Mr. Hamer in the position he sought, which was ultimately given to Justin Allen. The Respondent's evidence establishes, in a preponderant, persuasive way, that due to the economic adversity the Respondent was experiencing, it could not keep both Mike Hill and the Petitioner employed in the position of Night Dispatcher/Break-Down Clerk. 46. Moreover, the Respondent established that not only was Mike Hill of a higher priority for placement in that position, because of his seniority with the company, he also had more experience with Shoreline working satisfactorily in that same position. Therefore, for these reasons, as well as the performance reasons shown by the testimony of Clayton Gremillion and Chip Wasden, the Respondent demonstrated a legitimate, non-discriminatory reason for terminating the Petitioner and hiring Mr. Hill, even though Mr. Hill was much younger. There is no persuasive proof that the termination of the Petitioner had anything to do with his age. 47. The above findings of fact show that Justin Allen had some experience with Hunt Trucking Company, but there is no question that he did not have the experience in the trucking industry that the Petitioner had. The Respondent, however, articulated a legitimate, non-discriminatory reason for his hire, and the rejection of the Petitioner, for the job opening at issue. It was believed by both Clayton and Don Gremillion that, based on his past experience and business connections, Justin Allen had a significant ability to bring in new business from such large customers as Lowe's and Wal-Mart. 48. Mr. Allen did not stay with the company very long and the operations management duties he had assumed were transferred back to Clayton Gremillion, who had served as operations manager throughout the Petitioner's tenure with the company. Whether Mr. Allen brought in significant new business for the company is not truly the pivotal issue here. The point in determining that a legitimate, non- discriminatory reason for Allen's hire, over the Petitioner, was shown by the belief, when they hired him, by both Don and Clayton Gremillion, that he had the ability to bring in significant business. That is the reason he was hired rather than because of his youth or because of any substantial trucking company management experience, which he clearly did not have. 49. In any event, the reason shown by the Respondent was a legitimate, non-discriminatory reason because it had nothing to do with age, even if one might easily criticize the basis for the decision to hire Justin Allen. The reason he was hired is of little or no consequence, so long as it was not for reasons of age discrimination, which it was not. As stated in Chapman v. Aansport , supra , at 1031, "courts do not sit as a super personnel department that re-examines an entity's business decisions. No matter how mistaken firm's managers, the (Civil Rights Act) does not interfere. Rather, our inquiry is limited as to whether the employer gave an honest explanation of its behavior (citations omitted). An employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for discriminatory reason ." (Emphasis added). 50. Thus, although the Petitioner demonstrated a prima facie case for age discrimination, the evidence brought forward by the Respondent of legitimate non- discriminatory reasons for the hiring of Mike Hill and Justin Allen in the Petitioner's stead has not been overcome by persuasive evidence showing that those reasons were a pretext for what really amounted to age discrimination. Even though both Hill and Allen were much younger than the Petitioner, it was not shown they were hired for any reasons based upon their youth or based upon the Petitioner's substantially greater age. 51. Moreover, to the extent the Petitioner decries the hiring of younger people for other positions which the Petitioner believes he was qualified to occupy and perform, as concluded above, the evidence does not persuasively show that those persons were actually similarly-situated as to their work experience, qualifications and as to the job descriptions of the jobs for which they were hired, as compared to the Petitioner. Thus, even though a number of those hired persons were much younger than the Petitioner, and some were hired before, and some after he was terminated and denied the promotion, it was not shown that their qualifications and their job requirements were substantially similar to that which the Petitioner had occupied, or the job which he sought. It thus cannot be found that, as to all those other job positions, that the persons who might have been hired for them were treated more favorably than the Petitioner, while also being similarly-situated to the Petitioner as comparator employees. Therefore, it has not been established that the hiring of those people amounted to evidence of age- discrimination against the Petitioner, as to the above- referenced element of a prima facie case, or as being hires done for pre-textual reasons which really were instances of age discrimination. 52. Finally, in addition to the fact that the Petitioner did not seek any of those other positions which may have been hired by the company before and after the adverse employment actions against him, it is also true that the Petitioner was hired less than one year before his termination by the same supervisory personnel. He was hired with their full knowledge that he was approximately 60 years of age when they hired him. This fact also militates against there being any discriminatory animus based upon age. The Petitioner presented no persuasive evidence that the discharge reasons given by the Respondent were pre-textual and did not present evidence that any similarly-situated individuals of any other age older or younger were treated differently and more favorably by the Respondent. 53. There is no question that the Respondent was experiencing severe financial difficulties due to the economic recession and had to lay off many drivers, in addition to the office personnel treated in this case and Recommended Order. In early February 2008, it had to park some 40 trucks which it could not afford to operate. During this severe financial adversity, both before and after the Petitioner was terminated, the Respondent was still hiring some people to fill some positions, while laying off others. There was no evidence to show that this activity was other than the Respondent maintaining its attempt to render its business profitable once again, by making business decisions as to which employees or which positions could be filled in order to maintain its present level of business, and possibly generate new business and to efficiently operate its trucks. It is quite possible that new hires could be made as close as a month or two before the company ceased operations, in furtherance of the effort to stay in business, and hopefully become profitable again, before finally making the decision to close the doors. RECOMMENDATION Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that no discriminatory employment actions based upon the Petitioner's age occurred and dismissing the Petition in its entirety. DONE AND ENTERED this 16th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2009. COPIES FURNISHED : Heather F. Lindsay, Esquire Lindsay & Andrews, P.A. 5218 Willing Street Milton, Florida 32570 Michael W. Kehoe, Esquire Fuller, Johnson, Kehoe, Horky and Rettig, LLC 3298 Summit Boulevard, Suite 11 Pensacola Florida 32503 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, 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: 08-004574

Orders for Case No: 08-004574