03-000139 Douglas Kiesling vs. Florida State University Status: Closed Recommended Order on Friday, June 20, 2003.

Summary: Age discrimination under State university employment contract not proven. Reduction in force or downsizing burdens of proof discussed at length.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS KIESLING, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0139

)

FLORIDA STATE UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was conducted in

this case on April 7, 2003, in Tallahassee, Florida, before the

Division of Administrative Hearings by its duly - assigned

Administrative Law Judge, Ella Jane P. Davis.

APPEARANCES

For Petitioner: Douglas Kiesling, p ro se

542 Teal Lane

Tallahassee, Florida 32308

For Respondent: Joseph B. Donnelly, Esquire, and

Kathy Webster, Qualified Representative

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUES

Whether Respondent is guilty of an unlawful employment

practice by discrimination against Petitioner on the basis of

age.

PRELIMINARY STATEMENT

Petitioner's Charge of Discrimination was filed with the

Florida Commission on Human Relations on August 1, 2001. "Age"

was the only basis of discrimination alleged. The Charge states

that the alleged discrimination relates back to Petitioner's

termination, effective August 7, 2000.

On December 10, 2002, the Commission entered a Notice of

Determination: No Cause, and on or about January 16, 2003, the

Commission forwarded the Petition for Relief to the Division of

Administrative Hearings. The Petition's filing date with the

Commission cannot be determined from this record. The only

basis of discrimination alleged in the Petition is "age."

The merits hearing was continued once for four days, due to

emergency surgery of a member of Respondent's attorney's

immediate fa mily. The ultimate date selected was agreed - to by

Petitioner.

At the commencement of hearing, Kathy Webster, Certified

Legal Intern, was accepted as a Qualified Representative of

Respondent for this case.

At hearing, Petitioner testified on his own behalf and had

13 exhibits admitted in evidence. Respondent presented the oral

testimony of Petitioner and Fran Harley, and had three exhibits

admitted in evidence. Respondent filed, in open court, a

"Hearing Brief," primarily directed to Respondent's oral mot ion

to dismiss the Charge of Discrimination as allegedly barred by

the statutory filing period. (See Finding of Fact 32 and the

Conclusions of Law.)

A Transcript was filed on May 9, 2003. The parties had

stipulated to 30 days thereafter for the filing of proposed

recommended orders. As of June 9, 2003, only Respondent had

filed a Proposed Recommended Order. It has been considered.

FINDINGS OF FACT

1. Petitioner is a Caucasian male, who at all times

material was over 50 years of age. His date of birt h is

February 27, 1946.

2. Petitioner was hired in 1995, to work for Respondent

Florida State University (University) as "Coordinator,

Environmental Health and Safety - Asbestos Control." During

Petitioner's employment, the University classified this posit ion

as an Administrative and Professional position within the

Industrial Hygiene Section of the University's Department of

Environmental Health and Safety (DEHS). It was considered a

"scientific" position.

3. Petitioner was hired by a contract, which wa s renewed

annually, in August of each year, by Fran Harley, DEHS

Department Head.

4. Prior to August 2000, the Industrial Hygiene Section

consisted of three employees in three positions:

Position 54606: Coordinator, Environmental

Health and Safety, Roy Brogan.

Position 54100: Coordinator, Environmental

Health and Safety -- Asbestos Control,

Petitioner Kiesling.

Position 60787: Senior Environmental Health

and Safety Specialist, Jamie Delissio.

5. Petitioner's position description required him to

manage the University's asbestos and lead abatement programs.

Due to the dangerous nature of asbestos removal, by Florida law,

only persons licensed as Certified Safety Professionals (CSPs)

or asbestos consultants can design and implement asbestos

abatement pro jects. 1/ Because Petitioner was not licensed for

this function of ensuring public health, he served as the

University's in - house representative to monitor outside licensed

contractors/consultants and University employees involved in

eliminating asbestos a nd lead problems.

6. At some point, Petitioner was also assigned to develop

and implement a training program for University employees in

asbestos and lead awareness.

7. Roy Brogan was Petitioner's immediate superior until

Mr. Brogan quit in June 2000. Petitioner's August 1997 Annual

Performance Review reflects Mr. Brogan's opinion that Petitioner

had repeatedly failed to establish a University asbestos

awareness training program. At hearing, Petitioner did not

dispute that he had never developed such a program, but

testified to a number of reasons why he had not completed the

assignment.

8. Mr. Brogan's 1996 - 1997 Review rated Petitioner

"unsatisfactory" in the effectiveness category (P - 12B).

Testimony suggests that Petitioner received other critic al

reviews from Mr. Brogan. However, all Petitioner's reviews were

at least rated overall "satisfactory," and he continued to

receive annual pay increases. At no time did Petitioner

complain to Ms. Harley about the score(s) given him by Mr.

Brogan or see k to have it/them recalculated.

9. At hearing, Petitioner contended that Ms. Harley also

rated Mr. Brogan "unsatisfactory" in one category, and that Mr.

Brogan still had gotten an overall "above satisfactory" rating.

Petitioner is correct in this asser tion for Mr. Brogan's 1998 -

1999 Annual Review (P - 12A), except that on this review of Mr.

Brogan, the category is labeled "needs

improvement/unsatisfactory."

10. Petitioner also contended that in a single year,

Division Director Harley had evaluated Mr. Brogan, then

approximately 34 years old, as 2.4 on a scale of one to four,

"two" being "satisfactory" and "three" being "above

satisfactory," and that Ms. Harley had rounded 2.4 into an

overall "above satisfactory" rating for Petitioner's younger

superviso r, Mr. Brogan, whereas Mr. Brogan, himself, had rounded

the 2.5 score Mr. Brogan had given Petitioner down to merely an

overall "satisfactory." The exhibits do not entirely support

this construction by Petitioner of his and Mr. Brogan's

respective evaluat ion ratings. Mr. Brogan's Annual Review of

Petitioner (P - 12B) is his 1996 - 1997 Review. Ms. Harley's Annual

Review of Mr. Brogan (P - 12A) is dated August 7, 1998 - August 6,

1999. Therefore, they are not reviews covering the same year.

Also, the two men we re rated "unsatisfactory" in different

categories, and Mr. Brogan's "unsatisfactory" category also

embraced the concept of "needs improvement." Nonetheless,

Petitioner is correct that Ms. Harley's rounding - up of her 2.4

rating of Mr. Brogan to overall "ab ove satisfactory," and Mr.

Brogan's rounding - down of his 2.5 rating of Petitioner to

overall "satisfactory," do not compute with the normal method of

rounding numbers. Mr. Brogan's score of 2.4 might be more

mathematically correct if it had been rounded - d own to an overall

"satisfactory," whereas Petitioner's score of 2.5 might be more

mathematically correct if it had been rounded - up to an overall

"above satisfactory."

11. Petitioner perceived Ms. Harley's rounding - up of Mr.

Brogan's lower score and Mr. Brogan's rounding - down of

Petitioner's higher score as constituting an inequity based upon

age. Obviously, if pure mathematics is applied, both Ms. Harley

and Mr. Brogan erred in different ways with their rounding - off

of their subordinates' respe ctive scores, but their erroneous

"rounding" methods could just as easily be the result of bad

mathematics as age discrimination, and there is no indication of

age discrimination in the two reviews. Age discrimination

cannot be presumed simply from the fa ct that Mr. Brogan was

younger than Petitioner and outside the protected age group. It

also is noted that Ms. Harley's Review of Mr. Brogan was

originally calculated at "2.04" instead of "2.4", and this is

more indicative of mathematical problems than of discrimination.

12. There is no evidence that Petitioner suffered any

monetary disparity or disparity in job privileges as a result of

his score. 2/ There is no evidence he timely brought the

perceived discrimination to either superior's attention.

Moreo ver, the respective evaluation scores assigned to

Petitioner and Mr. Brogan have no significance for purposes of

this case, because Petitioner and Mr. Brogan were not similarly -

situated employees; because Petitioner and Mr. Brogan were not

(inequitably) ra ted by the same supervisor; and because

Petitioner never raised the issue with their mutual superior,

Ms. Harley. Accordingly, no nexus of Petitioner's and Mr.

Brogan's scores, rounded or otherwise, to age discrimination has

been demonstrated.

13. Beginn ing with the August 13, 1998, contract,

Petitioner's contract with the University stated, in pertinent

part:

This employment contract creates no

expectancy of employment beyond the terms

stated herein. The University, at its

option, may non - renew the cont ract by giving

at least six (6) months' notice if the

employee has more than one (1) year of

service in the A&P plan with the

University . . .

14. DEHS Department Head, Fran Harley, made the unilateral

decision not to renew Petitioner's contra ct. She was 51 years

old at the time. Petitioner was 53 years old at the time. Ms.

Harley testified credibly that her decision was not related in

any way either to Petitioner's age or his performance ratings,

as such. She believed, as Petitioner did, t hat they had a good

working relationship. Ms. Harley made the decision to terminate

Petitioner because she also had made the decision to reorganize

her department for greater efficiency. If anything, her

decision was based more on an intent to increase d epartmental

efficiency than on any individual inefficiency she detected in

Petitioner.

15. Ms. Harley's reorganization effort addressed several

departmental issues, including the inability to manage asbestos

and conduct asbestos training on campus; the be nefit of hiring a

licensed asbestos consultant or CSP to improve productivity and

save costs; and the desirability of updating and refining the

Asbestos Awareness Training curriculum.

16. While Petitioner was employed, the University had been

hiring a CSP or asbestos consultant for each of its asbestos

jobs, in addition to hiring a contractor. Director Harley had

decided to eliminate this expenditure by hiring a CSP to work

"in - house."

17. Petitioner was informed of Ms. Harley's decision not

to renew hi s employment contract in a meeting with her on

January 21, 2000.

18. Petitioner was also sent a letter, dated January 21,

2000, which provided the following material information:

This letter serves to advise you that

your appointment as Coordinator,

Env ironmental Health and Safety in the

Department of Environmental Health and

Safety will not be renewed beyond August 7,

2000. . .

The action to non - reappoint you beyond

the above stated date is without cause and

will best serve the interests of Florida

Sta te University.

19. At hearing, Petitioner admitted he understood he would

not continue to be employed if his contract were not renewed.

20. Jamie Delissio, Senior Environmental Health and Safety

Specialist in the Industrial Hygiene Section, voluntaril y

resigned in April 2000. Ms. Delissio was approximately 45 years

old at the time. This left Position 60787 vacant.

21. Petitioner had admitted in evidence a course

certificate showing that Mr. Brogan completed, on March 9, 2000,

the requisite training for "Asbestos Accreditation Under TSCA

Title II for the 'Asbestos Abatement Project Designer Course.'"

Petitioner contended that Mr. Brogan had received this training

on the University's time and at the University's expense. He

also contended that Mr. B rogan was being trained by the employer

University to get his Florida CSP or asbestos consultant's

license, but it was never shown that the course taken by Mr.

Brogan was sufficient, by itself, to achieve a CSP or Florida

asbestos consultant license. 3/

22 . Petitioner felt he had been discriminated against

because the employer did not similarly educate/train him.

Petitioner testified that he thought he had a college education

equivalent to Mr. Brogan's college education and therefore

believed himself elig ible to take courses toward a CSP or

asbestos consultant license. He felt he could complete the

necessary course work in a year's time if his courses were

financed by the University. Ms. Harley testified that the

University had paid for various courses w hich it believed would

enhance Mr. Brogan's performance in his existing University

position , as that position existed while Mr. Brogan was employed

up to June 2000, and that Mr. Brogan had told her he was also

attempting to become CSP - licensed in Florida. She did not know

whether the University had paid for Mr. Brogan's March 2000

training or even if the exhibit in question (P - 6) constituted

all or part of the training necessary for licensure under

Chapter 469. 4/ It was not affirmatively demonstrated that

Petitioner had ever requested training equivalent to Mr.

Brogan's training or any training paid for by the University

prior to August 7, 2000.

23. Mr. Brogan, who had been Petitioner's immediate

supervisor in the Industrial Hygiene Section, resigned in J une

2000, to take another job. His resignation left Position 54606

vacant as of June 2000.

24. Petitioner's contract expired, by its own terms, on

August 7, 2000. The University elected not to renew

Petitioner's services when his contract expired. T he University

had already complied with the employment contract by providing

notice of its decision on January 21, 2000. Petitioner was 54

years old as of his termination. Non - renewal/termination left

Position 54100 vacant as of August 7, 2000.

25. Pe titioner testified that he is not now, and at no

material time was, a CSP. 5/

26. To eliminate paying for both an "in house" monitor and

a private consultant, Ms. Harley had added the same duties to an

existing position, the position vacated voluntarily by Mr.

Brogan, Position 54606: Coordinator, Environmental Health and

Safety, and reclassified that position. The new position

description required that the person performing its duties be a

CSP.

27. The process of reclassifying Petitioner's Position

54 100, became effective March 9, 2001, seven months after

Petitioner's contract was terminated. In March 2001,

Petitioner's former position 54100, which had been vacant since

August 7, 2000, was effectively reclassified as Coordinator of

Administrative Serv ices, and moved out of the Industrial Hygiene

Section and into the Administrative and Training Support Section

of the Department. As such, it became an administrative, as

opposed to a scientific, position.

28. The Industrial Hygiene Section was thereby reduced

from three positions/three employees, to two positions/two

employees. The remaining positions within the Industrial

Hygiene Section were Position 54606: Coordinator, Environmental

Health and Safety, with new requirements, including CSP status,

and Position 60787: Senior Environmental Health and Safety

Specialist.

29. The Department advertised for the Coordinator,

Administrative Training and Support Services position (54100).

Petitioner did not apply. Petitioner viewed this as an

administrative i nstead of a scientific position, as reorganized,

which it is. Approximately June 2001, Kelita Pete, female, age

not disclosed, was hired as Coordinator, Administrative and

Training Support. Ms. Harley considered Ms. Pete's resume to

indicate she was qual ified for the position, as reorganized.

30. Mark Klawinski, male, age undisclosed but apparently

younger than Petitioner, was hired in November 2000, in Mr.

Brogan's old Position 54606: Coordinator, Environmental Health

and Safety. Mr. Klawinski possesse s a master's degree in public

health and is both a CSP and a Florida - licensed asbestos

consultant. As such, he can sign - off on the University's

asbestos projects, thus eliminating the University's need for

outside consultants and increasing the capabiliti es of the

University's Industrial Hygiene Section and DEHS. He also has

assumed responsibility for compliance with the Occupational

Safety and Health Act (OSHA), including its asbestos and lead

abatement regulations.

31. Mr. Klawinski now has one assis tant in the Industrial

Hygiene Section, filling Position 60787, Senior Environmental

Health and Safety Specialist, Ms. Delissio's old position. When

this position was filled is not clear from the record. It does

not affirmatively appear that Petitioner a pplied for it.

32. Petitioner filed his Charge of Discrimination on the

basis of age with the Florida Commission on Human Relations on

August 1, 2001, which is within 365 days of August 7, 2000, but

not within 365 days of January 21, 2000. The Commission

apparently entered its December 10, 2001 Determination: No Cause

on the merits, not on the basis of any failure to timely file

the Charge. The Petition for Relief was not proven to be

untimely under the rules of the Commission.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1) and Chapter 760, Florida Statutes.

34. Respondent maintains that because Petitioner filed his

claim of age discrimin ation within 365 days from his actual

termination date of August 7, 2000, but not within 365 days of

the January 21, 2000 notification of that termination date, his

claim is barred by Section 760.11(1), Florida Statutes.

Respondent relies upon St. Petersb urg Motor Club v. Cook , 567

So. 2d 488, (Fla. 2d DCA 1990).

35. It is acknowledged that the Cook court ruled that,

We must focus upon the time of the

discriminatory act, not upon the time at

which the consequences of the act became

most painful, and acc ordingly, the

limitations period commenced to run no later

than the date on which the board of

directors clearly established its official

position as it related to the appellee and

notified her.

However, the Cook case is distinguishable from the one at b ar

and does not support a dismissal herein.

36. In Cook , the employer enacted a no - nepotism rule in

1984. On July 4, 1985, the appellee employee married another

employee and by the terms of the no - nepotism rule was required

to resign within six months of July 4, 1985, or by January 4,

1986. Instead, the employee continued in her employment and

sought a waiver of the rule. On November 16, 1985, the

employer's board of directors informed her that the rule would

not be waived but would be enforced, there by effectively forcing

her resignation on or before the pre - established resignation

date. The Second District Court of Appeal ruled that the

employee's period for timely filing of her charge of

discrimination ran from November 16, 1985, which was the date of

the employer's decision to enforce its existing policy and the

date of its notification to the employee of that decision.

Thus, the time for filing the charge of discrimination ran from

the date of notification to the employee that the rule would not

be waived. It did not run from the date the rule was enacted,

the date of the marriage, or the date of the employee's

resignation in compliance with the rule.

37. Herein, Respondent asserts that the time for the

filing of Petitioner's Charge of Discrimi nation ran from

January 21, 2000, the date of the letter notifying Petitioner

that the University intended to let his contract run out on

August 7, 2000, without renewal. Petitioner has argued that the

University could have changed its mind up until Augu st 7, 2000.

For most cases, Respondent's argument belongs in the human

sphere of wishful thinking rather than within the rigid

parameters of contract law. However, because there is clear

evidence that Petitioner's position was not effectively

reclassifie d until March 9, 2001; because there is no clear

evidence of when Mr. Brogan's position was effectively

reclassified; and because there is clear evidence that Mr.

Klawinski was not hired until November 2000, Petitioner's theory

that nothing was certain wit h regard to his future, at least

until August 7, 2000, becomes a viable theory in this case.

Here, the August 7, 2000, contract expiration date equates with

the November 16, 1985, date of certainty that Cook's employer

would not change its mind and grant a waiver of its rule. The

thrust of the Cook opinion is that the time for filing a charge

of discrimination begins to run on the date that the adverse

employment decision becomes irrevocable. In the instant case,

the date that the adverse employment deci sion became irrevocable

was when Petitioner's position began to be metamorphosed by

termination of his contract, effective August 7, 2000.

Petitioner's charge of discrimination was filed within 365 days

of August 7, 2000, and that filing is timely under t he unique

circumstances of this case. The oral motion to dismiss for

untimeliness is denied.

38. It is an unlawful employment practice for an employer

to discriminate against any individual with respect to terms,

conditions, or privileges of employment o n the basis of age.

See Section 760.10(1)(a), Florida Statutes.

39. In Florida, an employee at will may be terminated at

any time for a good reason, a reason based on erroneous facts, a

bad reason, or no reason at all, so long as it is not a

statutorily proscribed discriminatory reason. Nix v. WLCY Radio

Rahall Communications , 738 F.2d 1181 at 1182, (11th Cir. 1989).

See also Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).

Petitioner herein was not an employee at will. He was an

employee by cont ract. As such, he had only the protections of

the contract. The terms of the contract were that the

University could terminate his contract on six months' written

notice at any time for the good of the University. Bound by

that contract, he has no recou rse here unless it can be shown

that age discrimination was the University's reason for non -

renewal/termination of his contract.

40. The Florida Civil Rights Act, Section 760.01, et seq ,

is patterned after Title VII of the Federal Civil Rights Act, 42

U.S .C. Section 2000E, et seq . Federal case law interpreting

Title VII and similar federal legislation is applicable to cases

arising under the Florida Act. See Florida Department of

Community Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991), School Bo ard of Leon County v. Weaver , 556 So. 2d 443

(Fla. 1st DCA 1990).

41. Under Chapter 760, Florida Statutes, Petitioner meets

the definition of "employee," and Respondent meets the

definition of "employer." Petitioner also is a member of an age

group prote cted against discrimination. Verbergraekin v.

Westinghouse Electric Corp. , 881 F.2d 1041 (11th Cir. 1989).

42. Petitioner's charge of discrimination only addresses

termination on the basis of age. His Petition for Relief only

addresses termination on th e basis of age. No inequitable

treatment prior to August 7, 2000, was raised in either

pleading.

43. At the disputed - fact hearing, Petitioner raised an

issue of discrimination via his 1996 - 1997 Annual Review.

Assuming arguendo , but not ruling, that Peti tioner's charge of

discrimination/petition for relief herein ever contemplated that

issue, for all of the reasons set forth in Findings of Fact 7,

and 11 - 12 supra. , not even a prima facie case of age

discrimination has been presented concerning any annual review.

Petitioner's suggestion that the University was training Mr.

Brogan to become a CSP was not proven. If the continuing

professional education the University provided for his position

also helped Mr. Brogan achieve certification or licensure, that

effect was peripheral, but not intentional, from the

University's perspective. It was not established that

Petitioner was also eligible for such funded continuing

education in his position or that he ever requested it.

44. On the issue of termination, P etitioner has the burden

of proof to show that he was discriminated against on the basis

of age. To establish a prima facie case of age discrimination,

Petitioner must show that he (1) was a member of a protected

group, (2) was subjected to adverse employ ment action, (3) was

qualified to do the job, and (4) lost the position to a younger

individual. Williams v. Vitro Services Corp. , 144 F.3d 1438,

1441 (11th Cir. 1998); McDonnell Douglas Corporation v. Green ,

411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 668 (19 73).

45. Petitioner has presented no direct evidence of age

discrimination by Respondent. The record does not indicate any

remark or action concerning age directed at Petitioner.

46. As to circumstantial evidence, Petitioner has not

proven that he was q ualified for a job for which a younger

person was hired. Petitioner has not proven that he was

qualified to fill either Position 54606: Coordinator,

Environmental Health and Safety, as that position's duties

existed in Mr. Brogan's tenure, which ended in June 2000, or as

reconstituted and reclassified by the time Mr. Klawinski was

hired in November 2000. Apparently, Respondent did not fill

that position until it was reclassified and Petitioner did not

apply for it because he could not meet the new require ment of

being a CSP.

47. Petitioner also did not apply for the reclassified job

of Coordinator, Administrative Training and Support, which bore

his old position number 54100, but which was no longer a

"scientific position" for which he was qualified.

48. Since Petitioner presented no affirmative evidence

that he applied for Position 60787, held now by the subordinate

to Mr. Klawinski, it must be assumed he did not apply, and

therefore, whether he was, or was not, qualified for that

position is immater ial.

49. Further, Petitioner also cannot prove a prima facie

case of age discrimination under the test assigned to cases

involving reduction of an employer's work force or the

elimination of a position. Williams v. Vitro Services

Corporation , supra. To do so, Petitioner must establish (1)

that he was in a protected age group and was adversely affected

by an employment decision, (2) that he was qualified for his

current position or to assume another position at the time of

discharge, and (3) that there is evidence by which a fact - finder

reasonably could conclude that the employer intended to

discriminate on the basis of age in reaching that decision.

Williams , 144 F.3d at 1441.

50. While Petitioner may have been qualified for Position

54100 as of his Aug ust 7, 2000, termination date, the job itself

was reclassified and moved to Administrative Training and

Support. Petitioner testified he was not qualified to assume

this job as reclassified. Likewise, Petitioner has not shown

that he was qualified to ass ume another position at the time of

termination.

51. Most importantly, there is no evidence that the

decision to downsize the Industrial Hygiene Section and

eliminate Petitioner's job was based on an intentional decision

to discriminate against Petitioner due to his age.

52. The newly reorganized position filled by Mr. Klawinski

did include Petitioner's former duties, but it entailed other

functions as well. Some of these functions required licenses

and/or certificates which Petitioner did not, and does not,

hold. Moreover, even if there was a similarity of function, a

case has arguably been made that Mr. Klawinski was otherwise

more highly qualified than Petitioner by virtue of his Master's

degree.

53. Assuming, arguendo , that Petitioner has made a pri ma

facie case of age discrimination with regard to his termination,

the burden would then shift to Respondent to articulate a

legitimate, non - discriminatory reason for its failure to hire

him. Department of Corporation v. Chandler , 582 So. 2d 1183

(Fla. 1 st DCA 1991); McDonnell Douglas Corporation v. Green ,

supra.

54. Respondent met its burden under the Chandler test by

adequately articulating a legitimate non - discriminatory reason

for reorganization and for hiring Mr. Klawinski instead of

Petitioner.

5 5. When an employer produces evidence of a legitimate

non - discriminatory reason for its actions, any prior presumption

of discrimination is eliminated, and the employee must then

prove by a preponderance of the evidence that the explanation

given was not its true reason, but was in fact, a pretext for

discrimination. "The employee must satisfy this burden by

showing directly that a discriminatory reason more likely than

not motivated the decision, or indirectly by showing that the

proffered reason for the employment decision is not worthy of

belief." Department of Corrections v. Chandler , supra .

Petitioner did not meet this shifted burden.

56. "Conclusory allegations of [age] discrimination,

without more, are not sufficient to raise an inference of

pr etext or intentional discrimination where [the employer] has

offered extensive evidence of legitimate, non - discriminatory

reasons for its actions." Isenbergh v. Knight - Ridder Newspaper

Sales, Inc. , 97 F.3d 436 (11th Cir. 1996).

57. An employee's feelings and perceptions of being

discriminated against are not evidence of discrimination.

Bickerstaff v. Vassar College , 196 F.3d 435 (2nd Cir. 1999).

58. Even if Petitioner had proven a prima facie case of

age discrimination, reduction in force, or downsizing , is

recognized as a legitimate, nondiscriminatory reason for

dismissing an employee and acts as an effective defense against

discrimination claims. Watkins v. Sverdrup Technology, Inc. ,

153 F.3d 1308 (11th Cir. 1998); Tidwell v. Carter Products , 135

F.3d 1422 (11th Cir. 1998). See also Furr v. Seagate

Technology, Inc. , 82 F.3d 980, 986 (10th Cir. 1996), holding

that "the manner in which a company chooses to conduct a

[reduction in force] is within the company's sound business

discretion." Further, "in t he absence of any evidence of an

illegal ulterior motive, courts and juries cannot presume to

question the business judgment of company managers." Id.

at 987.

59. Herein, the major motivation in the University's

reorganization was not primarily a re duction in force, but was

efficiency - based on a similar principle: reducing the need for

outside contractors or eliminating redundancy. The controlling

concept is that the reorganization was a management decision,

irrespective of Petitioner's age, and "Co urts do not sit as a

super - personnel department that reexamines an entity's business

decisions." Ghosh v. Indiana Department of Environmental

Management , 197 F.3d 1087 (7th Cir. 1999)

60. Petitioner has not presented any evidence to refute

Respondent's proffered reason for its employment decision.

Respondent has only the burden of production, not of persuasion.

However, the University's explanation also has been persuasive.

61. In making the foregoing assessment, Reeves v.

Sanderson Plumbing Products, Inc. , 120 S. Ct. 2097, (2000), the

case orally cited by Petitioner at the disputed - fact hearing,

has been considered. Greatly simplified, that case stands for

the proposition that it is unnecessary for a Petitioner to put

on specific evidence to refute t he employer's proffered reasons

for its employment decision if the evidence as a whole convinces

the trier of fact that the employer's reasons are not credible

or are pretextual. That case would not change the outcome here

because Ms. Harley's testimony i s concluded to be credible. 6/

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED: that the Florida Commission enter a final

order dismissing the Charge of Discrimination and Petition for

Relief.

DONE AND ENTERED this 20th day of June, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

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 20th day of June 2003.

ENDNOTES

1/ Section 469.003(1), Florida Statutes, provides, "No p erson

may conduct an asbestos survey, develop an operation and

maintenance plan, or monitor and evaluate asbestos abatement

unless trained and licensed as an asbestos consultant as

required by this Chapter."

Section 469.004(1), Florida Statutes, requ ires all asbestos

consultants to be licensed by the Department of Business and

Professional Regulation. Licenses can only be issued to a

select group of people, one category of which is a Certified

Safety Professional as designated/certified by the Board of

Certified Safety Professionals.

2/ On the basis of this record, it would be pure conjecture to

assume Petitioner would have received a greater pay increase if

he had received an overall "above satisfactory" rating in 1997.

3/ It is noted that Sectio n 469.005(2)(d), Florida Statutes,

lists this as only one of the requirements for licensure either

as an asbestos consultant or asbestos contractor.

4/ See n. 3, above.

5/ It is noted that Petitioner's 1995 job application (P - 1)

shows him as possessin g "Asbestos Abatement: Project Management

and Supervision License No. 1203 - 4065; April 5, 1991." The

effect of such a license is not explained in the record. It was

not shown in this record that Petitioner still has this license.

Petitioner did not asse rt any current eligibility for a CSP or

for an asbestos consultant license based this license. It was

not demonstrated how such a license might or might not be

"grandfathered" into Chapter 469, Florida Statutes' licensing

system. See Sections 469.003, 46 9.004, 469.005, and 469.013,

Florida Statutes.

6/ In Reeves v. Sanderson Plumbing Products, Inc. , 120 S. Ct.

2097 (2000) Significant "headnotes" sum up its holdings that:

Employment discrimination plaintiff's prima facie case,

combined with suffi cient evidence to find that employer's

asserted justification is false, may permit trier of fact to

conclude that employer unlawfully discriminated, although such a

showing by plaintiff will not always be adequate to sustain

jury's finding of liability; ab rogating Fisher v, Vassar

College , 114 F.3d 1332 (C.A.2 1997), Rhodes v. Guiberson Oil

Tools , 75 F.3d 989 (C,A.5 1996), Theard v. Glaxo, Inc. , 47 F.3d

676 (C.A.4 1995), and Woods v. Friction Materials, Inc. , 30 F.3d

255 (C.A.1 1994). Age Discrimination in Employment Act of 1967,

Section 4.(a)(1), 29 U.S.C.A. Section 623 (a)(1); Civil Rights

Act of 1964, Section 703(a)(1), 42 U.S.C.A. Section 120 S. Ct.

2907.

Fact - finders' rejection of the employer's legitimate,

nondiscriminatory reason for its action does not compel judgment

for employment discrimination plaintiff, as the ultimate

question is whether the employer intentionally discriminated and

proof that the employer's proffered reason is unpersuasive, or

even obviously contrived, does not necessaril y establish that

plaintiff's proffered reason is correct; in other words, it is

not enough to disbelieve employer, but, instead, the fact - finder

must believe plaintiff's explanation of intentional

discrimination. Age Discrimination in Employment Act of 19 76,

Sections 4(a)(1), 29 U.S.C.A. Section 623(a)(1); Civil Rights

Act of 1964, Section 703(a)(1), 42 U.S.C.A. Section 2000e -

2(a)(1).

It is permissible for the trier of fact in employment

discrimination case to infer the ultimate fact of discriminatio n

from the falsity of the employer's explanation; proof that

defendant's explanation is unworthy of credence is simply one

form of circumstantial evidence that is probative of intentional

discrimination, and it may be quite persuasive, Age

Discrimination i n Employment Act of 1967, Section 4(a)(1), 29

U.S.C.A. Section 623(a)(1); Civil Rights Act of 1964, Section

703(a)(1), 42 U.S.C.A. Section 2000e - 2(a)(1).

To the extent that employment discrimination plaintiff's

prima facie case, combined with suffici ent evidence to find that

employer's asserted justification is false, may not always be

adequate to sustain jury's finding of liability; whether

judgment as a matter of law is appropriate in any particular

case will depend on a number of factors, including strength of

the plaintiff's prima facie case, probative value of proof that

the employer's explanation is false, and any other evidence that

supports the employer's case and that properly may be considered

on motion for judgment as matter of law. Age Dis crimination in

Employment Act of 1967, Section 4(a)(1), 29 U.S.C.A. Section

623(a)(1); Civil Rights Act of 1964, Section 703(a)(1), 42

U.S.C.A. Section 2000e - 2(a)(1).

Because a prima facie case and sufficient evidence to

reject employer's explanation may permit a finding of liability

in employment discrimination case, the plaintiff need not always

introduce additional independent evidence of discrimination.

Age Discrimination in Employment Act of 1967, Section 4(a)(1),

29 U.S.C.A. Section 623(a)(1); Civil Rights Act of 1964, Section

703(a)(1), 42 U.S.C.A. Section 2000e - 2(a)(1).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Joseph B. Donnelly, Esqu ire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Douglas Kiesling

542 Teal Lane

Tallahassee, Florida 32308

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 agen cy that

will issue the final order in this case.