02-003931 Durrice Garvin vs. International Paper, D/B/A Champion International Corporation Status: Closed Recommended Order on Tuesday, March 11, 2003.

Summary: Petitioner disciplined and subsequently terminated due to his poor work performance and failure to comply with last chance agreement; no age discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DURRICE GARVIN, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3931

)

INTERNATIONAL PAPER, d/b/a )

CHAMPION INTERNATIONAL )

CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on December 20,

2002, in Pensacola, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: R. John Westberry, Esq uire

Holt & Westberry

1108 - A North 12th Avenue

Pensacola, Florida 32501

For Respondent: Thomas R. Brice, Esquire

McGuireWoods LLP

50 North Laura Street, Suite 3300

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment act by discriminating against Petitioner based on his

a ge in violation of Section 760.10(1), Florida Statutes.

PRELIMINARY STATEMENT

On November 5, 1998, Petitioner Durrice Garvin (Petitioner)

filed a Charge of Discrimination against Respondent

International Paper d/b/a Champion International Corporation

(Res pondent). The charge alleged that Respondent had

discriminated against Petitioner based on his age.

On or about September 10, 2002, the Florida Commission on

Human Relations (FCHR) issued a Determination: No Cause.

On October 3, 2002, Petitioner file d a Petition for Relief

alleging age discrimination. Specifically, Petitioner alleged

that Respondent had treated him less favorably than employees

outside his protected class and had ultimately terminated his

employment.

FCHR referred the case to the Division of Administrative

Hearings on October 10, 2002.

The parties filed unilateral responses to the Initial Order

on October 17, 2002. Subsequently, the undersigned issued a

Notice of Hearing dated October 24, 2002, scheduling the hearing

for Decemb er 20, 2002.

During the hearing, Petitioner testified on his own behalf

and presented the testimony of one additional witness.

Petitioner presented eight exhibits that were accepted into

evidence.

Respondent presented the testimony of seven witnesses.

Respondent offered 11 exhibits, which were accepted into

evidence.

A Transcript of the proceeding was filed on January 22,

2003.

By order dated January 27, 2003, the undersigned granted

Petitioner's Motion for Extension of Time to file proposed

recommend ed orders.

By order dated February 4, 2003, the undersigned granted

Respondent's Motion for Extension of Time to file proposed

recommended orders.

Petitioner filed a Proposed Recommended Order on

February 18, 2003. Respondent filed its Proposed Reco mmended

Order on February 28, 2003.

FINDINGS OF FACT

1. Petitioner was born on December 7, 1944. At the time

of the hearing, Petitioner was 58 years old.

2. Petitioner began working for Respondent as a pipe

fitter in 1974. Respondent terminated Petit ioner on August 5,

1998. He was 53 years old at that time.

3. At all times relevant to this proceeding, Petitioner

was a member of the Paper, Allied - Industrial, Chemical and

Energy Workers International Union Local 1561 (the Union).

4. Based on hi s seniority, Petitioner became a

predictive/preventative lubrication mechanic (PPM mechanic) in

the late 1980s. A PPM mechanic is responsible for lubricating

equipment, monitoring oil pressure on induced draft (ID) fans,

changing oil filters, and repairin g equipment in the powerhouse.

A PPM mechanic's duties also include performing vibration

analysis on equipment in the powerhouse.

5. As a PPM mechanic, Petitioner was required to look at

several hundred pieces of equipment per day. These inspections

w ere essentially "walk - by" inspections. Petitioner was not

required to record his observations or to keep a maintenance

log.

6. If a piece of equipment needed repair and Petitioner

was able to perform the work, he would do so. If he was unable

to repai r the equipment, Petitioner would report the problem to

the powerhouse maintenance department to execute the repair.

7. A computer - generated list identified the equipment that

needed inspection. Some of the equipment needed to be

lubricated daily, some weekly, and some on a monthly basis.

8. Petitioner worked as a PPM mechanic for about three

years. In the early 1990s, his PPM mechanic position was

awarded to a more senior employee.

9. In March 1991, Respondent terminated Petitioner's

employment for falsifying his time card. The union's subsequent

grievance procedure resulted in Petitioner being suspended for

six months without pay.

10. In 1994, Petitioner once again became a PPM mechanic.

At that time, Petitioner worked the day shift from 7 :00 a.m.

until 3:30 p.m. He would attend a crew meeting at the beginning

of each shift. A crew consisted of pipe fitters and

millwrights. After the crew meeting, Respondent expected

Petitioner to walk his route to perform his inspections as

quickly as r easonably possible.

11. Joseph McCall began working for Respondent on May 8,

1989. He became Petitioner's immediate supervisor on

November 1, 1996. Mr. McCall was the supervisor of all PPM

mechanics. He supervised Petitioner until Petitioner's

termina tion on August 6, 1998. At the time of Petitioner's

termination, Mr. McCall was approximately 30 years old.

12. On or about January 29, 1997, Mr. McCall met with

Petitioner to discuss his work performance. Mr. McCall

counseled Petitioner to stop doin g "government jobs" (personal

jobs) during work hours and then requesting overtime to finish

his normal duties.

13. Mr. McCall had observed Petitioner doing personal work

on company time on at least six occasions. Mr. McCall did not

allow employees und er his supervision to do "government jobs" on

company time. There is no persuasive evidence that Mr. McCall

observed anyone other than Petitioner performing "government

jobs" during work hours prior to Petitioner's termination.

14. During the January 2 9, 1997, meeting, Mr. McCall

counseled Petitioner regarding his failure to consistently

perform his daily maintenance inspection route first thing in

the morning. The morning inspection was important because the

overnight swing shift did not have a PPM me chanic on duty.

15. After the January 1997 oral warning, Mr. McCall met

with Petitioner again in June 1997 to discuss Petitioner's

unacceptable job performance. After the meeting, Mr. McCall

issued a written reprimand to Petitioner on June 16, 1997. T he

reprimand stated that Petitioner's job performance needed to

improve immediately. The reprimand outlined Respondent's

expectations and Petitioner's performance deficiencies.

16. Specifically, Petitioner had not consistently

completed his inspection ro ute first thing in the morning.

Mr. McCall counseled Petitioner that this responsibility was the

highest priority.

17. Mr. McCall counseled Petitioner that he needed to

check equipment, such as the oil filter on the No. 3 power

boiler ID fan, more freq uently. Petitioner needed to take care

of housekeeping items, such as cleaning up oil leaks that

occurred on his shift. Additionally, Petitioner needed to

collect data more efficiently; pay closer attention to critical

equipment, such as the ID fans; coo perate with his relief; and

follow directions issued by his supervisor.

18. Petitioner's work did not improve in response to the

June 16, 1997, written reprimand. On September 24, 1997,

Mr. McCall witnessed Petitioner sleeping on the job in the

corner shop of the powerhouse. As a result of this incident and

Petitioner's failure to consistently meet expectations,

Petitioner was suspended from work for 17 days. Respondent

suspended Petitioner instead of firing him in recognition of his

long service with Respondent.

19. In a disciplinary letter dated October 3, 1997,

Respondent memorialized the reasons in support of Petitioner's

suspension. The letter also set forth the terms and conditions

of a "last chance agreement" containing the following conditi ons

of Petitioner's continued employment: (a) Petitioner would

remain in the PPM mechanic job; (b) Petitioner would not violate

any mill rules; (c) Petitioner would consistently meet the job

performance expectations as established; and (d) Petitioner

woul d work cooperatively with Mr. McCall, with co - workers, and

employees in the production areas. Petitioner and Mr. McCall

signed the letter, which clearly stated that failure to comply

with the conditions for continued employment would result in

Petitioner' s immediate discharge without recourse.

20. One of Petitioner's most important jobs was to monitor

the oil pressure differential on the No. 4 power boiler ID fan

because a high oil pressure differential on that fan can cause

the power boiler and turbine generator to trip, resulting in a

loss of production. This piece of equipment was so critical

that it could only be shut down during a "cold outage" in which

the whole mill shut down.

21. On March 25, 1998, the No. 4 power boiler tripped.

The trip wa s not so severe as to as to shut down the power -

generating turbine. After this incident, Mr. McCall counseled

Petitioner about his failure to adequately monitor the oil

pressure.

22. On June 11, 1998, Petitioner was working on a job when

a co - worker, K enny Waters, requested Petitioner to stop his work

in progress and add oil to a pump that Mr. Waters was working

on. Petitioner refused the request telling Mr. Waters that he

had the ability to add oil to the pump. Petitioner failed to

work cooperatively with his co - worker by refusing to add oil to

the pump.

23. On June 17, 1998, Mr. McCall was not at work.

Therefore, Kenny Caine (aged 47) was acting as "set - up foreman"

(temporary foreman) for Mr. McCall. That same day, Randy Dortch

(aged 48) was act ing as set - up foremen for the maintenance

department and Kip Norton (aged 58) was the powerhouse

supervisor.

24. On June 17, 1998, a powerhouse operator informed

Mr. Norton that there was a high oil pressure differential on

the No. 4 power boiler ID fan . Mr. Norton called Mr. Dortch at

7:10 a.m. to request the services of the PPM mechanic on duty to

check the filter on the fan. Mr. Norton was concerned that the

filter needed to be changed to alleviate the pressure

differential and avoid a possible turb ine trip.

25. Petitioner happened to be the PPM mechanic on duty for

that area of the mill. After talking to Mr. Dortch, Mr. Norton

paged Petitioner. However, Petitioner did not respond to the

page. Mr. Norton then called Mr. Caine in an attempt to l ocate

Petitioner.

26. Mr. Dortch located Petitioner in the break room.

Mr. Dortch specifically directed Petitioner to go check the oil

pressure on the No. 4 power boiler ID fan. Rather than

immediately responding to Mr. Dortch's request, Petitioner sa t

down at the break table, drinking coffee, and reading the paper.

27. Mr. Dortch then contacted Mr. Caine who went to the

break room to speak to Petitioner. Petitioner explained to

Mr. Caine that the filters on the fan were too small, that they

were s cheduled for change, and that new filters had been

ordered.

28. Mr. Caine went to the production staff to relay

Petitioner's explanation that there was no cause for concern

about the filters. Mr. Caine then returned to speak with

Petitioner, stating th at the production department wanted the

filters changed despite Petitioner's representation that the

equipment was performing normally.

29. Mr. Caine went with Petitioner to the No. 4 power

boiler ID fan. Petitioner then proceeded to change the filters .

30. Mr. Caine subsequently counseled Petitioner to respond

to every request from an operator for assistance. Mr. Caine

reminded Petitioner that he should not have to have a foreman of

any sort, production or maintenance, tell him what to do.

Mr. Cai ne mentioned the June 17, 1998, incident to Mr. McCall

but did not recommend that Petitioner be disciplined.

31. Petitioner stayed in the break room almost one hour

after Mr. Dortch instructed Petitioner to check the oil pressure

differential on the No. 4 power boiler ID fan. Petitioner's

delay in following directions was insubordinate and a violation

of his last chance agreement.

32. Don Wilson was Respondent's engineering and systems

manager. Based on Mr. McCall's recommendation, Mr. Wilson

(aged 60) made the decision to terminate Petitioner's

employment. Mr. Wilson's decision is memorialized in a letter

dated August 5, 1998, which states that Petitioner's behavior on

June 11, 1998, and June 17, 1998, violated the conditions of his

continued emplo yment.

33. Mr. Wilson's decision was reviewed and approved by

Doug Owenby (aged 56), Respondent's plant manager. Stan Shaw

(aged 49), Respondent's human resource manager, also reviewed

and approved of the decision to terminate Petitioner's

employment.

34. When Respondent terminated Petitioner, Respondent

replaced him with Doug Anderson, an individual who was

approximately in his mid - 30s. Roger Brown, also in his mid - 30s,

and Kenny Caine, aged 47, also performed the job formerly held

by Petitioner. In each instance, the PPM mechanic position was

awarded based on seniority in accordance with the terms of the

Union labor agreement. The labor agreement gave Respondent no

discretion in selecting Petitioner's replacement.

35. Petitioner grieved his te rmination through the Union.

Mr. Shaw denied the grievance. Subsequently, the Union voted

against taking Petitioner's grievance to arbitration.

36. While he was employed with Respondent or during the

grievance process following his termination, Petition er never

complained that he was being discriminated against because of

his age to any manager, supervisor or human resources

representative. However, at least two of Petitioner's

co - worker's harassed him occasionally by calling him names such

as "o ld mother fucker" and "old square - headed mother fucker."

37. Mr. McCall was aware that some of Petitioner's

co - workers were making jokes about his employment situation

relative to the last chance agreement. Even so, there is no

persuasive evidence that anyone called Petitioner names in front

of Mr. McCall or any other person in a position of authority.

The greater weight of the evidence indicates that the two

co - workers called Petitioner names because he took the PPM

mechanics job away from Bi lly Dortch, an individual that they

liked.

38. At some point before he was terminated, Petitioner

learned from the Union that Respondent intended to downsize its

workforce. Respondent planned to offer some employees early

retirement packages. Responde nt intended to eliminate other

positions through attrition.

39. Most PPM mechanics were close to Petitioner's

(aged 53). Some of the PPM mechanics accepted the retirement

package but Petitioner informed Mr. McCall that he needed to

continue working and would not be interested in a retirement

package if Respondent offered him one.

40. The reduction - in - force took place in October and

November 1998 due to market conditions during which 150

positions were eliminated. No employees were involuntarily

term inated. Respondent did not consider age as a factor during

the reduction - in - force or seek to eliminate older workers

through the voluntary retirement packages. Petitioner's

termination was unrelated to the downsizing process.

41. The voluntary retirem ent package offered by Respondent

gave each employee who accepted the package at least one week of

severance pay per year of service. Employees with more than

15 years of service got two weeks of severance pay per year of

service. Therefore, Respondent i ncurred greater expense

allowing employees to chose whether or not to accept the

voluntary retirement package based on seniority. The labor

agreement with the Union does not require Respondent to offer

any severance benefits during a reduction - in - force.

42. At the time of Petitioner's termination, there were

10 other PPM mechanics under Mr. McCall's supervision. All of

them were over the age of 40. Five were older than Petitioner.

Specifically, Earl Powell was aged 68, Larry Sloan was aged 62,

Edward Holland was aged 60, Howard Patrick was aged 57, and Lee

Stonewall was aged 54. Mr. McCall never had cause to discipline

these five men. None of the PPM mechanics other than Petitioner

were terminated.

43. After Petitioner's termination, Mr. McCall d id have to

issue a verbal warning to Phil Caddel (aged 50) and Clay Bonner

(late 30's). In both incidences, the discipline was for

performing "government jobs" on company time.

44. During the time that Mr. McCall supervised Petitioner,

he was never ask ed to serve in a set - up capacity. Instead,

Mr. McCall selected Mr. Caine, Mr. Dortch, and Bob Stewart, all

younger than Petitioner, to act as substitute foremen when

Mr. McCall was not at work.

45. Mr. McCall kept notes on Petitioner's performance. In

fact, Mr. McCall kept detailed notes on the performance of a

great majority but not all of the employees under his

supervision.

CONCLUSIONS OF LAW

46. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569, 120.57(1), and 760.11, Florida

Statutes.

47. Pursuant to Section 760.10(1), Florida Statutes, it is

unlawful for an employer to discharge employees or to otherwise

discriminate against them with respect to compensation , terms,

conditions, or privileges of employment because of their age.

48. Decisions construing Title VII, United States Civil

Rights Act of 1964, as amended, 42 U.S.C.A. Section 2000e

et. seq. , and the federal Age Discrimination in Employment Act

of 1 967, as amended, 29 U.S.C.A. Section 621 et. seq. , are

applicable when evaluating a claim brought under the Florida

Civil Rights Act of 1992, as amended, Sections 760.01 through

760.11, Florida Statutes. Harper v. Blockbuster Entertainment

Corporation , 13 0 F.3d 1385, 1387 (11th Cir. 1998)(citing Ranger

Insurance Company v. Bal Harbour Club, Inc. , 549 So. 2d 1005,

1009 (Fla. 1989)).

49. Petitioner has the initial burden of proving a prima

facie case of age discrimination based on theories of disparate

tre atment and/or unlawful discharge. Texas Department of

Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089

(1981); McDonnell Douglas v. Green , 411 U.S. 792, 93 S. Ct. 1817

(1973).

50. If Petitioner presents a prima facie case of age

discriminatio n, Respondent must articulate a legitimate,

nondiscriminatory reason for the challenged employment action.

Combs v. Plantation Patterns , 106 F.3d 1519, 1528 (11th Cir.

1997).

51. If Respondent presents one or more such reasons, the

presumption of disc rimination is eliminated and Petitioner must

prove by a preponderance of the evidence that Respondent's

reasons for the adverse actions were pretextural. Id.

52. Petitioner may establish a prima facie case of

disparate treatment by showing the following : (a) he is a

member of the protected age group; (b) he was qualified to do

the job; (c) he was subjected to an adverse employment action,

such as discipline for violation of workplace rules; and

(d) similarly situated employees, who were younger were tre ated

more favorably. Chapman v. AI Transport , 229 F.3d 1012, 1024

(11th Cir. 2000).

53. Petitioner may establish a prima facie case of

unlawful discharge by establishing the following: (a) he is a

member of the protected age group; (b) he was qualified to do

the job; (c) he was discharged; and (d) after he was discharged,

i) he was replaced by or otherwise lost a position to a younger

individual; ii) others who were similarly situated but younger

remained in similar positions; and iii) similarly situated

persons who were younger were treated more favorably. Id. ;

O'Connor v. Consolidated Coin Caterers Corporation , 517 U.S.

308, 311 (1996); Hazen Paper Company v. Biggins , 507 U.S. 604,

609 (1993).

54. Petitioner has met his prima facie burden in both

in stances. He was 53 years old and within the statutorily

protected age group when he was terminated. His long - term

employment and years of experience as a PPM mechanic indicate

that he was qualified for the job. He was disciplined for

violating workplace rules and eventually discharged. During

Petitioner's employment, Mr. McCall selected younger employees

to serve as set - up foremen. After Petitioner's termination, a

younger individual replaced Petitioner.

55. On the other hand, Respondent has present ed legitimate

nondiscriminatory reasons for each of the actions it took

against Respondent. First, Mr. McCall properly gave Petitioner

an oral reprimand in January 1997 for doing "government jobs" on

company time. There is no persuasive evidence that Mr. McCall

had observed any other employee under his supervision, older or

younger than Petitioner, performing such work before Petitioner

was terminated.

56. Second, Mr. McCall properly gave Petitioner a written

reprimand in June 1997. This reprimand was warranted, among

other reasons, because Petitioner was not completing his routine

daily route immediately upon reporting to work in the morning.

57. Third, Mr. McCall observed Petitioner sleeping on the

job in September 1997. Respondent properly suspe nded Petitioner

without pay for 17 days due to this incident.

58. Fourth, Petitioner violated the October 1997 last

chance agreement on two occasions. On June 11, 1998, Petitioner

refused the request of a co - worker for assistance in adding oil

to a pump. On June 17, 1998, Petitioner waited over an hour

before responding to a request to check the oil filters on the

No. 4 power boiler ID fan. The latter incident involved

insubordination, neglect of duty, and failure to cooperate with

other employees.

59 . Petitioner presented no persuasive evidence that

Respondent's reasons for Petitioner's discipline and subsequent

discharge were pretextural. Respondent used progressive

discipline in an effort to improve Petitioner's performance.

Petitioner lost his j ob only after it became apparent that he

refused to comply with the specific expectations spelled out in

the written reprimand dated June 16, 1997, and the last chance

agreement dated October 3, 1997.

60. The greater weight of the evidence indicates tha t

Respondent did not consider Petitioner's age or show preference

to younger employees in taking any of the above - referenced

discipline or in terminating his employment. Petitioner's

replacement was based on seniority pursuant to the agreement

with the la bor union. Additionally, Mr. McCall was not aware

that two co - workers made disparaging age - based comments to

Petitioner. There is no evidence that Respondent's

reduction - in - force was intended to discriminate against older

employees. Finally, Mr. McCa ll's decision not to select

Petitioner as a set - up foreman is understandable in light of his

poor performance record and his inability to cooperate with

other employees.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for

Relief.

DONE AND ENTERED this 11th day of March, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

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 11t h day of March, 2003.

COPIES FURNISHED :

Thomas R. Brice, Esquire

McGuireWoods LLP

50 North Laura Street, Suite 3300

Jacksonville, Florida 32202

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Talla hassee, Florida 32301

R. John Westberry, Esquire

Holt & Westberry

1108 - A North 12th Avenue

Pensacola, Florida 32501

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOT ICE 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.