01-003866 Jose A. Diaz vs. Ohio Disposal Systems, Inc. Status: Closed Recommended Order on Thursday, March 28, 2002.

Summary: Respondent did not discriminate against Petitioner on the basis of age or ethnicity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE A. DIAZ, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3866

)

OHIO DISPOSAL SYSTEMS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and a formal hearing was held on

February 7, 2002, in Pensacola, Florida, and conducted by

Harry L. Hooper, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Bruce Committe, Esquire

17 South Palafox Place, Suite 322

Pensacola, Florida 32501

For Respondent: H. William Wasden, Esquire

Pierce, Ledyard, Latta,

Wasden & Bowron, P.C.

Post Offi ce Box 16046

Mobile, Alabama 36616

STATEMENT OF THE ISSUE

Whether Respondent unlawfully discriminated against

Petitioner.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the

Florida Commission on Human Rel ations (FCHR) on September 5,

1996. On September 17, 2001, FCHR entered a Determination of No

Cause. On September 21, 2001, Petitioner filed a Petition for

Relief which was forwarded to the Division of Administrative

Hearings where it was filed on Octobe r 4, 2001.

The matter was set for hearing on December 18, 2001. On

December 14, Petitioner requested a continuance. Pursuant to

that request the hearing was set for January 15, 2002.

Petitioner requested another continuance on January 8, 2002.

Pursuan t to that request, the case was set for hearing on

February 7, 2002, in Pensacola, Florida, and was heard as

scheduled.

Petitioner and one other witness testified on behalf of

Petitioner. Respondent presented no testimony and offered two

group exhibits w hich were received into evidence.

A Transcript was filed on March 7, 2002. Pursuant to a

Joint Motion to Extend the Time to Submit Proposed Orders and a

subsequent Motion for Extension of Time filed by the Petitioner,

proposed recommended orders b ecame due on March 18, 2002. Both

parties timely filed Proposed Recommended Orders which were

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. For many years Mark Dunning Industries, Inc. (MDI),

held the contract for trash r emoval and processing for Naval Air

Station, Pensacola, Florida (NAS Pensacola). In the summer of

1995, the contract for these services, for a period beginning

January 1996, were the subject of a bid solicitation.

2. The apparent winner of the bid was Ohio Disposal

Systems, Inc (ODSI). This bid was contested by MDI.

Ultimately, ODSI prevailed in the bid contest and was selected

to perform the contract. Performance was to begin on January 1,

1996, however, ODSI was not informed that it was to be the

contractor until early December 1995.

3. Petitioner was born on July 12, 1922. He is a U.S.

citizen from Puerto Rico, and of Hispanic origin.

Petitioner first came to be employed by MDI in the summer of

1994.

4. Petitioner worked on the "hill," whi ch is an elevated

portion of the trash dump on board NAS Pensacola. It was his

job to weld broken equipment. He also operated two kinds of

equipment: a Bobcat, which is a small front - end loader, and a

backhoe with a dozer blade mounted on the front.

5. Petitioner was paid about $16.00 per hour as a welder.

6. Victor Cantrel, Petitioner's friend, commenced

employment with MDI in July 1995. He worked on the "hill" and

also drove the Bobcat and the back - hoe. He would utilize this

equipment to push trash into a compactor. In trash - handling

parlance, he was known as a "hill man." He was not a welder.

He worked closely with Petitioner.

7. Mr. Cantrel was born on June 25, 1972, and is Anglo -

American. He was paid about $9.00 per hour.

8. Th e supervisor of Petitioner and Mr. Cantrel, during

the latter months of 1995 while they were working for MDI, was

Thomas Lucky.

9. The principal of ODSI was Vince Crawford.

10. On or about December 28, 1995, at the end of the

workday, Mr. Lucky inf ormed the employees, including Petitioner,

Mr. Cantrel, and a number of trash truck drivers, that there was

to be a meeting in the company office near the "hill."

11. Present at the meeting in the office, which commenced

around 6:30 p.m., was Petitioner, Mr. Cantrel, Mr. Lucky,

several truck drivers, Mr. Crawford, and his wife Cathy.

12. Mr. Crawford informed the assembled employees that he

was bringing in all new equipment; that because there would be

new equipment, the new employees of ODSI would be abl e to work

40 hours per week; and that due to the requirement to get his

company in shape in time to meet the January 1, 1996, deadline,

many of the employees of MDI would be offered jobs with ODSI.

13. After revealing these preliminary matters,

M r. Crawford asked a man named Lee what he did at MDI; this man

said that he was a truck driver. Mr. Crawford told him that he

was hired with the new company. Then he asked Mr. Cantrel what

he did; he said he drove the Bobcat. Mr. Crawford said,

"Recycle , huh. You are hired." Mr. Cantrel subsequently filed

an employment application. However, he knew that after the

announcement at the meeting, he was going to work for ODSI.

14. When Mr. Crawford inquired of two more people, they

both responded, "truck driver," and Mr. Crawford informed them

that they were hired. When he asked Petitioner, Petitioner

said, "Welder." Mr. Crawford then said, "We don't need no

welders here." This was the first and last encounter Petitioner

had with Mr. Crawford.

15. The next day Petitioner arrived at work at the usual

time and was informed that he no longer was employed at that

facility.

16. On January 2, 1996, Petitioner presented an employment

application to the office at ODSI seeking employment as a

"Welder and/or He avy Equip. Opr." He never received a response.

No evidence was adduced that at that time there were job

openings for a "welder and/or heavy equipment operator."

Additionally, according to Petitioner, no one from ODSI informed

Petitioner that he was not qualified.

17. No evidence was adduced at the hearing which indicated

that Mr. Crawford noticed that Petitioner was 73 years of age,

or that he was a Puerto Rican, or that he was of Hispanic

origin. The unrebutted evidence demonstrated that Petitioner

w as not hired, at the time jobs were available, because Mr.

Crawford was bringing in new equipment. New equipment does not

require frequent welding and, therefore, Mr. Crawford did not

need a welder.

CONCLUSIONS OF LAW

18. The Division of Administrative H earings has

jurisdiction over parties and the subject matter in this

proceeding. Section 120.57(1), Florida Statutes.

19. The Florida law prohibiting unlawful employment

practices is found in Section 760.10, Florida Statutes. This

section prohibits disc harge or other discriminatory acts against

any individual with respect to compensation, terms, conditions,

or privileges of employment because of such individual's age or

ethnicity, among other things. Section 760.10(1)(a), Florida

Statutes.

20. Th e Florida Civil Rights Act of 1992, as amended, was

patterned after Title VII of the Civil Rights Acts of 1964 and

1991, Title 42 U.S. Code, Section 2000, et seq ., as well as the

Age Discrimination in Employment Act of 1967 (ADEA), Title 29

U.S. Code, Sect ion 623. Federal case law interpreting Title VII

and the ADEA is applicable to cases arising under the Florida

Act. See Florida Department of Community Affairs v. Brant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

21. Title 29 U.S. Code, Section 631(a), pr ovides that

persons who are at least over the age of 40 are protected by the

ADEA.

22. In a case of alleged discrimination, the employee

carries the burden of establishing that an unlawful employment

practice has occurred. In this regard the instructive language

found in Texas Department of Community Affairs v. Burdine , 450

U.S. 248, 101 S. Ct. 1089 (1981), bears repeating. There the

Court held that the employee carries the burden of proving by a

preponderance of the evidence a prima facie case of

discri mination. Demonstrating a prima facie case is not

onerous; it requires only that the plaintiff establish facts

adequate to permit an inference of discrimination. Holifield v.

Reno , 115 F.3d 1555 (11th Cir. 1997). If the employee succeeds,

the burden the n shifts to the employer to articulate a

legitimate, nondiscriminatory reason for the failure to hire the

potential employee. Should the employer meet this burden, the

employee must then prove by a preponderance of evidence that the

legitimate reasons off ered by the employer were not its true

reasons, but were instead a pretext for discrimination.

Burdine , supra . See also Jones v. Bessemer Carraway Medical

Center , 137 F.3d 1306 (11th Cir. 1998).

23. To make a prima facie case under the ADEA, Petitioner

must show that he was over 40 years of age at time he was

refused employment; that adverse employment action was taken

against him; that the position he desired was given to a person

outside the protected group; and that he was qualified for the

position f or which he was rejected. Pace v. Southern Railway

System , 701 F.2d. 1383 (11th. Cir. 1983).

24. To make a prima facie case based upon discrimination

because of ethnicity, Petitioner must show that he was in a

protected class at the time he was not offere d employment; that

adverse employment action was taken against him; that employment

was offered to a person outside the protected group; and that he

was qualified for the position for which he was rejected. Pace ,

supra .

25. Petitioner failed to make out a prima facie case. He

was in two protected classes because he was 73 years old at the

time of the alleged failure to hire, and he was of a national

origin different from the person to whom the job was allegedly

offered. Adverse employment action was not taken against

Petitioner because he was not competing for any job that was

available. No one was offered the position of welder because no

welder was needed. Therefore, no one was hired for a position

he sought who was outside of the protected class. P etitioner

was qualified for the job of "hill man," but that is not the

position for which he announced his availability.

26. Even if one assumes that a prima facie case has been

established, Respondent met its burden of articulating a

legitimate, nondiscr iminatory reason for the failure to hire the

applicant. Petitioner applied for a job as a welder. There was

no employment available for a welder because Respondent brought

in all - new equipment for the job. Perhaps, on the evening when

Respondent conduct ed its hurried hiring action, if Petitioner

had said, "Welder or hill man," or simply "hill man," he would

have obtained employment. But that circumstance would be

speculation. What is not speculation is that Respondent had no

discriminatory intent.

27. Respondent demonstrated a legitimate,

nondiscriminatory reason for the failure to hire the applicant.

Petitioner produced no evidence at all which would indicate that

the failure to hire was pretextual.

RECOMMENDATION

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

is

RECOMMENDED:

That a final order be entered finding Respondent committed

no unlawful employment practice.

DONE AND ENTERED this 28th day of March, 2002, in

Tallahassee, Leon County, Florida.

______________________________ _____

HARRY L. HOOPER

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 C lerk of the

Division of Administrative Hearings

this 28th day of March, 2002.

COPIES FURNISHED :

Bruce Committe, Esquire

17 South Palafox Place, Suite 322

Pensacola, Florida 32501

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

H. William Wasden, Esquire

Pierce, Ledyard, Latta,

Wasden & Bowron, P.C.

Post Office Box 16046

Mobile, Alabama 36616

Cecil Howard, General Counsel

Florida Commission on Human Relati ons

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

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.