02-004809 Perry Heslep vs. Payroll Management, Inc. Status: Closed Recommended Order on Thursday, April 3, 2003.

Summary: Petitioner did not appear. Respondent showed legitimate reason for moving Petitioner to a more supervised position; Petitioner refused, resulting in termination. Petitioner showed no evidence to rebut fact that termination was for poor performance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PERRY HESLEP, )

)

Petitioner, )

)

vs. )

) Case No. 02 - 4809

PAYROLL MANAGEMENT, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, thi s cause came on for Administrative

Hearing before P. Michael Ruff, duly - designated Administrative

Law Judge of the Division of Administrative Hearings, in

Shalimar, Florida, on February 25, 2003. The appearances were

as follows:

APPEARANCES

For Pe titioner: No appearance

For Respondent: Michael William Mead, Jr., Esquire

Post Office Box 1329

Fort Walton Beach, Florida 32549

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Petitioner , Perry Heslep, has suffered

discrimination in his employment by being terminated because of

his age.

PRELIMINARY STATEMENT

This cause arose on May 13, 2002, when the Petitioner filed

a complaint of employment discrimination with the Florida

Commission on Human Relations (Commission). The complaint

alleged that the Petitioner had been discriminated against by

the Respondent in violation of Sections 760.01 through 760.11,

Florida Statutes (2002).

In essence, the Petitioner has alleged that the Respondent

c ommitted an unlawful employment practice by terminating him

allegedly because of his age. The allegations in the complaint

were investigated and on November 5, 2002, the Commission issued

a determination of "cause" to believe that a discriminatory act

occ urred. The Petitioner then filed a Petition for Relief and

was granted a formal proceeding and evidentiary hearing. The

hearing was held at the Okaloosa County Courthouse Annex in

Shalimar, Florida, pursuant to notice, before the undersigned

administrati ve law judge, on February 25, 2003.

The cause came on for hearing as noticed. Upon convening

the hearing it was determined that the Petitioner had failed to

appear. A substantial period of time, in excess of one - half an

hour elapsed and the Petitioner fa iled to make any appearance.

The Petitioner has the burden of proof and a Recommended Order

of Dismissal could be entered based upon the Petitioner's

failure to appear without justification, of which there has been

none filed or communicated to the judge. Nevertheless, the

Respondent elected and requested to put on its case - in - chief in

order to preserve its evidentiary position on the record and to

advocate dismissal predicated on evidence. Accordingly, the

Respondent was permitted to put on its case. T he hearing was

duly noticed, the notice was transmitted to the Petitioner's

last known address of record and the Respondent had all its

witnesses in attendance.

Upon concluding the taking of evidence, the Respondent

requested that a transcript of the heari ng be made and filed

with the Division of Administrative Hearings and requested a

period of 30 days in which to submit a Proposed Recommended

Order. Those requests were granted and a Proposed Recommended

Order by the Respondent was timely filed and has be en considered

in the rendition of this recommended order. 1/

FINDINGS OF FACT

1. The Petitioner, Perry Heslep, was two weeks away from

his 38th birthday when he was hired by the Respondent, Payroll

Management, Inc. (PMI) as an investigator. He was hire d on

January 27, 2001. When he was removed from his job as

investigator he was only 39 years of age, less than two years

older than his age when hired.

2. The duties of an investigator consist of sitting in a

vehicle and attempting to observe and film i ndividuals who might

be defrauding the workers' compensation fund. Such an

investigator, as Mr. Heslep, filmed such individuals on video -

tape so that it can be ascertained whether they truly have

physical impairments justifying worker's compensation awar ds.

3. The only physical attributes an investigator must have

to work for PMI are the ability to drive a car and the ability

to hold a small, light - weight video camera.

4. A PMI investigator, who is 64 years of age, 25 years

older than the Petition er was when he was terminated as an

investigator, and who had the same duties as Mr. Heslep, plus

additional duties, had no trouble with the physical requirements

of being an investigator. The physical demands on a PMI

investigator were not such that an i ndividual who was 39 years

of age would have any trouble fulfilling those duties. In fact,

Mr. Heslep had no physical problems related to age which would

keep him from fulfilling his duties as an investigator for the

Respondent PMI.

5. When he was remov ed from his role as an investigator,

Mr. Heslep was only 39 years of age. This made him younger than

the average age of PMI employees. Today the average age of

PMI's investigators is 40.7 years of age, which is older than

Mr. Heslep was when he was ter minated as an investigator.

6. Statistically, PMI investigators that were Mr. Heslep's

age or older, are more likely to keep their jobs than those

younger than Mr. Heslep. There is no statistical evidence

indicating that PMI discriminated against employ ees based upon

age.

7. The fact that Mr. Heslep was hired only two weeks

before his 38th birthday indicates that his termination when he

was only 39 years of age by PMI was not discrimination based

upon age. The younger employee that was hired the sam e day that

Mr. Heslep was terminated as an investigator, was scheduled to

begin working for PMI as an investigator, regardless of whether

Mr. Heslep remained an investigator or not. Mr. Heslep was thus

not replaced by a younger employee.

8. There were no employment decisions made by PMI that

would indicate a pattern of discrimination based on age. There

was no mention of Mr. Heslep's age by Mr. Heslep, anyone

representing him or anyone at PMI, when he was hired, while he

was employed, when he was termi nated, at his unemployment

compensation hearings or at any other time prior to filing of

the complaint of employment discrimination leading to this

proceeding. There is no direct evidence of discrimination

against the Petitioner or any other employee at P MI based on

age.

9. PMI has made special efforts to recruit and hire

investigators that were significantly older than the Petitioner,

both before and after the Petitioner was employed by PMI.

10. The Petitioner was unable to drive a company vehicle,

un like other PMI investigators, because PMI's insurer would not

allow someone convicted of DUI to drive a company vehicle.

Mr. Heslep's DUI conviction was significant since he would

frequently be late or miss work entirely because of mechanical

problems attendant to using his personal vehicle. He was

routinely late for work and routinely left work early to meet

his children after school.

11. Mr. Heslep was often absent from work without

permission for extended periods of time. He sometimes would not

answer his company telephone to avoid contact with his employer.

His unexcused absenteeism from work had a negative impact on his

performance at work. He was told before he was hired that the

job of investigator was "results oriented," meaning that his

l evel of performance was based on the amount of video

surveillance tape he produced. He production of video

surveillance tape fell far below what was expected of PMI

investigators.

12. Mr. Heslep was warned by his supervisor on a number of

occasions that he was not producing enough video surveillance

tape. He acknowledged that he was not producing enough video

surveillance tape, but still failed to perform the job he was

hired to do and was being paid to perform.

13. Because of his sub - standard work pe rformance, PMI's

Vice President of Human Relations, Willie Farrow, attempted to

re - assign the Petitioner. Since the Petitioner had a propensity

to arrive to work late or to leave work early, Mr. Farrow felt a

position within the PMI organization where Mr. Heslep could be

more closely supervised would be more appropriate. The

investigative position he was in allowed employees to work

without supervision. Mr. Heslep refused this position

assignment however.

14. The decision to assign Mr. Heslep to a new position

within the PMI organization had nothing to do with the fact that

he was 39 years of age. The decision was based purely on PMI's

supervisory personnels observation, a good faith belief that

Mr. Heslep's work performance was sub - standard and beca use of

the multiple, extended periods of unexcused absenteeism. There

is no evidence which would suggest that the decision was based

upon Mr. Heslep's age. When Mr. Heslep refused the new position

he was terminated.

CONCLUSIONS OF LAW

15. The Divisi on of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

16. Assuming arguendo that the Petitioner had adduced

evidence of a prima facie case, which he did not, because he

failed to appear at the hearing, the Respondent would have the

burden to establish a legitimate, non - discriminatory reason for

removing the Petitioner from his position as investigator. See

Lawrence Zaben v. Air Products Chemical, Inc. , 129 F.3d 1453, at

1457 (11 Circuit 1997), Clark v. Coates and Clark, Inc. , 990

F.2d 1217, at 1227 (11 Circuit 1993).

17. An employer's good faith belief that an employee's

work is sub - standard is a legitimate, non - discriminatory reason

for removing the employee or terminating the employee. Clark

990 F.2d at 1228, Young v. General Foods, Corp. , 840 F.2d 825 at

830, (11 Circuit 1988).

18. The Petitioner's superiors and supervisors at PMI had

a good faith belief that the Petitioner's work performan ce was

sub - standard for a variety of reasons, delineated in the above

findings of facts. PMI therefore established a legitimate,

non - discriminatory reason for terminating the Petitioner from

his position as an investigator.

19. Once an employer in a di scrimination case articulates

a legitimate, non - discriminatory reason for the adverse

employment decision, the burden is then placed on the Petitioner

to introduce "significantly probative evidence showing that the

asserted reason is merely a pretext for d iscrimination." Clark

990 F.2d at 1228.

20. The Petitioner presented no direct, circumstantial or

statistical evidence, patterns or facts, nor could any facts be

gleaned from PMI's evidence, that would in any way suggest that

the Petitioner suffered an adverse employment decision because

of his age. The Petitioner failed to appear and thus wholly

failed to introduce any evidence of a prima facie case, and no

evidence which would show that the employer's asserted reason

for removing him as an investigato r was merely pretextual and

that the employer had really discriminated against him based on

his age. There is simply no evidence whatever to show that the

Petitioner's age was any motivating factor at all in the

employment decision at issue.

RECOMMENDATIO N

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 Fl orida Commission on

Human Relations dismissing the Petition for Relief in its

entirety.

DONE AND ENTERED this 3rd day of April, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Div ision 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 3rd day of April, 2003.

ENDNOTE

1. Mr. Heslep has offered no justification for failure to

appear at hearing. Notice was sent to his last known address.

On the day before issuance of this Recommended Order he advised

that he wanted to respond to the Proposed Recommended Order

submitted by the Respondent and produce evidence. However, it

is inappropriate to re - open the proceedings to do so. This

would amount to a denial of fundamental fairness and due process

of law to the Respondent. The Petitioner has not made any

comment or communication regarding justification for failure to

appear at the hearing, which was the place and time for him to

put on his evidence.

COPIES FURNISHED :

Michael William Mead, Jr., Esquire

Post O ffice Box 1329

Fort Walton Beach, Florida 32549

Mr. Perry Heslep

190 Miramar Street

Mary Esther, Florida 32569

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway

Suite 100

Tallahassee, Florida 32301

Denise Cra wford, Agency Clerk

Florida Commission on Human Relations

20009 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 Rec ommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.