03-003144 Michael George vs. City Of Leesburg, Waste Water Canal Status: Closed Recommended Order on Monday, May 3, 2004.

Summary: Petitioner failed to prove he was fired because of his age; failed to show he was qualified for his job (bad performance); and failed to show he was replaced by a younger employee. Petition should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL GEORGE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3144

)

CITY OF LEESBURG, WASTER WATER )

CANAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding

and hearing before P. Michael Ruff, duly - designated

Administrative Law Judge of the Division of Administrative

Hearings. The hearing was conducted January 23, 2004, in

Tavares, Florida. The appearances w ere as follows:

APPEARANCES

For Petitioner: Michael George, pro se

25131 Southeast 167th Place

Umatilla, Florida 32784

For Respondent: Steven W. Johnson, Esquire

McLin & Burnsed, P.A.

Post Office Box 491357

Leesburg, Florida 34749 - 1357

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Petitioner was discriminated against based upon his

age, in the manner addressed by Section 760.10, Florida

Statutes.

PREL IMINARY STATEMENT

This cause arose upon the filing of a Charge of

Discrimination with the Florida Commission on Human Relations

(Commission) on June 10, 2002. The Petitioner is Michael

George, at times pertinent hereto a employee of the City of

Leesburg, Florida. On December 9, 2002, the Petitioner filed an

Amended Charge of Discrimination with the Commission. That

amended charge alleged that the City of Leesburg (City,

Respondent) had discriminated against the Petitioner based upon

his age, by dischargi ng him from employment and replacing him

with someone much younger.

An investigation was performed by the Commission which

ultimately issued a determination of "no cause" on July 28,

2003. The Petitioner filed the subject Petition for Relief on

August 2 7, 2003. On September 22, 2003, the Respondent filed an

Answer to the Petition for Relief and a Motion to Dismiss,

ruling on which was reserved until the hearing on the merits.

After one continuance, at the request of the Respondent, for

good cause shown , the cause was ultimately heard on January 23,

2004. Upon the cause coming on for hearing as noticed, the

Petitioner testified on his own behalf and presented the

testimony of five witnesses. The Respondent cross - examined the

witnesses presented by the Petitioner and called one witness in

its own case. The Petitioner offered two exhibits which were

admitted into evidence and the Respondent offered eleven

exhibits which were admitted into evidence.

Upon conclusion of the proceeding a transcript thereof was

ordered. Proposed findings of fact and conclusions of law in

the form of proposed recommended orders were scheduled to be

submitted by the parties and a Proposed Recommended Order was

submitted by the Respondent. It has been considered in the

renditi on of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner was an employee of the City of Leesburg

at times pertinent hereto. He was employed as a waste water

operator trainee, commencing employment on or about June 5,

2000. The Respondent is a city government and unit of local

government which operates two waste water plants. At times

material to this proceeding the Respondent was employed and

assigned to the "Canal Street Plant." The Petitioner was

required to perform several job functions in his capacity as a

waste water operator (trainee). Respondent's Exhibit Nine, in

evidence, provides a job description for the Petitioner's

employment positions which include the following: Record all

flows; constantly survey charts and meter readings; re pair

leaking waste water pipes; perform building maintenance chores;

maintain vigilance over all the department facilities and log or

report any unusual situations; take oral and written

instructions and carry them out in a quick and responsible

manner; lo ad and unload lawn cutting equipment, and cut and trim

grass at utility plant sites; make repairs and/or replace parts

on plant equipment; and repair leaks and other operations as

directed.

2. That job description also required a trainee to have

knowledg e of the functions and mechanics of pumps and other

waste water plant equipment, knowledge of the occupational

hazards and safety measures required in plant operations; to

have an ability to detect faulty operating characteristics in

equipment and to insti tute remedial action. The trainee is also

required to be able to read meters, chart accurately and to

adjust procedures to meet plant volume requirements. He must

have an ability to understand and follow oral and written

instructions.

3. The Respondent 's personnel policies and procedures

manual (manual), in evidence as Respondent's Exhibit Eight,

states at Policy No. 600.2(13) that "poor performance" is a

violation of policy sufficient to initiate discipline. Poor

performance is described in that secti on as a failure to perform

assigned duties according to prescribed dimensions and standards

on the individualized performance plan. Policy No. 600.2

provides for progressive discipline ranging from a verbal

warning, to a written warning, a one - to - three da y suspension, a

four - to - five day suspension, or termination. Thus the

discipline for violation of that policy is a range of

appropriate actions from verbal warning to termination.

4. On or about July 11, 2001, the Petitioner was the

subject of a correct ive action performance evaluation by his

supervisor, Bob Mirabella. Mr. Mirabella, the Respondent's

Operations Supervisor, accorded the Petitioner a grade of zero

in several categories of work performance. Those are

deficiencies indicating the Petitioner 's lack of understanding

of basic concepts related to his job position, including failure

to following instructions, difficulty making simple decisions,

difficulty or failure in following standard procedures, and a

poor attitude. Overall his evaluation sh ows a rating of the

Petitioner's performance as "unacceptable."

5. That corrective action evaluation also contains a

section that the Petitioner and his supervisor must initial,

indicating that the Petitioner had reviewed the evaluation and

that the perf ormance deficiencies had been communicated to him.

Mr. Mirabella advised the Petitioner of corrective measures to

take and that any continued failure to meet expectations might

result in termination. Mr. Mirabella created a type - written

plan of improveme nt for the Petitioner with remedial activities,

objectives, and developmental activities. Under the

Respondent's consistent policy, the action plan would have been

reviewed in 60 days, September 11, 2001, in order to determine

that the Petitioner was meet ing those expectations.

6. On August 13, 2001, the Petitioner received a written

reprimand for failure to perform duties assigned to him on

July 23, 25, and August 9, 2001. These were duties that were in

accordance with the prescribed dimensions and sta ndards of the

individual performance plan for the Petitioner. The written

reprimand, in evidence as Respondent's Exhibit Two, included a

description of the Petitioner's failure to perform duties

including lawn maintenance, and again cited his argumentativ e

attitude.

7. On August 29, 2001, the Petitioner received a three - day

suspension from duties for failure to perform assigned duties

according to prescribed dimensions and standards as set forth in

the individual performance plan. The disciplinary actio n form,

in evidence as Respondent's Exhibit Three, specifically referred

to the Petitioner's failure to perform lawn maintenance duties,

failure to follow established rules and policies, and failure to

take appropriate action to correct a leaking pump. It was also

noted that the Petitioner was making coffee and watching

television instead of performing assigned duties.

8. Mr. Mirabella created a performance evaluation summary

in preparation for the Petitioner's September 11, 2001, 60 - day

review of the in itial, unsatisfactory evaluation of July 11,

2001. The summary showed a continuation of the Petitioner's

difficulties and problems both in understanding his job and in

dealing with other people in the course of his duties. The

summary cited an incident w here the Petitioner was abrasive,

including swearing, toward other employees. It was

Mr. Mirabella's intention to give the Petitioner a written

reprimand regarding the swearing incident. However, due to the

emergency nature of the events occurring on Sep tember 12, 2001,

at the waste water plant, the written reprimand was not

completed prior to the beginning of the investigation that

ultimately led to the Petitioner's termination. The Petitioner

made no major progress in correcting any of the problems

out lined in the action plan that constituted part of the

July 11, 2001, evaluation.

9. On or about September 12, 2001, it was determined that

there was a near overflow of sewage at the Canal Street Plant.

Scott Moss, the employee who worked on the mornin g shift on

September 13, 2001, discovered the problem and took corrective

action immediately. Mr. Mirabella learned of the problem and

reported it to the Respondent's Director of Environmental

Services, Susanna Littell.

10. Upon learning of the potent ial overflow occurrence,

Ms. Littell began an investigation to determine when the

overflow problem occurred. She gathered plant flow information

and took measurements of the tanks. Employing engineering

calculations, based upon the flow rates at the plan t,

Ms. Littell was able to determine that the problem had occurred

on the Petitioner's shift. The Petitioner was the only employee

on duty at the time the problem occurred.

11. Ms. Littell consulted two outside engineers (non - city

employees) to review h er calculations. Those engineers found

that her calculations were accurate. According to Ms. Littell,

the waste water employees on duty at the plant should have

observed the valve positions or otherwise noticed a problem in

the plant that needed remediat ion. This was a regular part of

their assigned duties, including the Petitioner.

12. Mr. Mirabella determined a number of valves had been

changed, which had caused the "aereation bay" to begin to fill

with waste water. The aereation bay almost overflow ed, which

would have caused a serious environmental hazard and damage. It

would have caused irreparable harm to the credibility of the

waste water department, and could have engendered a minimum of

$10,000.00 dollars in fines imposed by the Department of

Environmental Protection. The importance of preventing these

types of situations has been emphasized to employees who worked

at the waste water plant, including the Petitioner.

13. Because of the Petitioner's failure to notice the

obvious serious proble m occurring at the plant on his shift, and

his failure to take corrective action, he was cited for

negligence in performing his assigned duties in violation of the

Respondent's policy. The employee who worked as his counter -

part on the shift immediately a fter the Petitioner's, Elmer

Wagner, was also cited for negligence in performing his duties

because of his failure to notice the problem and to take

corrective action. Mr. Wagner at the time in question was 67

years of age.

14. The information obtained during Ms. Littell's

investigation was forwarded to Ms. Jakki Cunningham - Perry, the

Respondent's Director of Human Resources, in order for her to

determine the appropriate disciplinary action to take.

Ms. Cunningham - Perry performed an investigation of the

September 12, 2001, incident. She spoke to several individuals,

including, but not limited to, Mr. Mirabella, Ms. Littell,

Jim Richards, who was one of the engineers consulted by

Ms. Littell, as well as the Petitioner. She thereafter

deliberated and pre pared a written memorandum setting forth her

investigative findings. Ms. Cunningham - Perry concluded that

the closing of the valves occurred during the Petitioner's

shift. She also concluded that Mr. Wagner should have noticed

the change in the pump flow and valves during his shift.

15. Both the Petitioner and Mr. Wagner were cited for

failure to perform assigned duties in violation of city policy

600.0(13), as a result of the investigation performed by

Ms. Cummingham - Perry. She reviewed the personne l history of

both the Petitioner and Mr. Wagner in order to determine the

appropriate levels of discipline. The Petitioner's prior

history included the special corrective action evaluation of

July 11, 2001, indicating unacceptable performance; the

August 13, 2001, written reprimand for violation of policy

600.2(13); and the suspension for violation of that same policy.

In light of the past performance of the Petitioner, as well as

the September 12, 2001, incident, Ms. Cunningham - Perry

recommended that he be terminated.

16. On November 30, 2001, the Petitioner was terminated

from his employment with the Respondent. The Petitioner's last

day on the payroll with the Respondent was December 6, 2001.

17. Mr. Wagner is older than the Petitioner and has ha d an

exemplary performance record with the Respondent City. He never

had any disciplinary problems on his record for 15 years of his

employment with the Respondent. Because of his theretofore

spotless employment disciplinary record, he was given a writte n

reprimand as a result of his negligent performance of job duties

on September 12, 2001.

18. No evidence was adduced indicating that the Respondent

treated any employees over the age of 40, including the

Petitioner, any differently than employees unde r the age of 40.

During the relevant time period the Respondent had approximately

22 employees in the waste water department. Fifteen of those 22

employees were over the age of 40.

19. The Petitioner actually produced no evidence in his

case establishi ng his date of birth or age. There is no

evidence that the Petitioner's age was considered or was a

factor in his termination decision. The decision to terminate

him was based solely on his failure to perform assigned duties

and his prior performance rec ord.

20. Moreover, the Petitioner adduced no evidence to show

that he was replaced or otherwise lost his position to a younger

individual. The individual who became a waste water trainee

after the Petitioner's termination was Scott Moss. Mr. Moss is

cu rrently employed as Waste Water Operator with the Respondent.

There is no doubt that Mr. Moss is a significantly younger

individual, purported to have been in his late 20's when the

incident in question occurred. The Petitioner, however,

produced no evid ence regarding Mr. Moss' date of birth or his

age in relationship to the Petitioner's. He also produced no

evidence to show that he was actually replaced by Mr. Moss. Mr.

Moss had been hired on or about January 29, 2001, nearly one

year prior to the date of the Petitioner's termination. Both

the Petitioner and Mr. Moss were working at the Canal Street

Plant in similar capacities and duties, at the time the

Petitioner was terminated. Mr. Moss, therefore, just continued

to work there and ultimately was el evated, through his adequate

performance, to the position of Waste Water Operator. It was

not established that he was hired simply to replace the

Petitioner when the Petitioner was terminated. Further, the

Petitioner did not adduce sufficient, persuasive evidence to

show that he was actually qualified to perform the job. His

prior performance had been unacceptable since at least July 11,

2001, and likely before that time. The Petitioner repeatedly

failed to comprehend and perform assigned duties of a Wa ste

Water Operator Trainee on multiple occasions. This was despite

efforts by the Respondent to help the Petitioner correct his

deficiencies. Accordingly, it has not been established that the

Petitioner was "qualified" for the position of Waste Water

Ope rator Trainee.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction of the subject matter hereof and the parties to

this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

22. It is prohibited under Chapter 760, Flor ida Statutes,

for an employer to discriminate against employees on the basis

of age, specifically Section 760.10(1)(a), Florida Statutes

(2003). Federal decisional law regarding age discrimination in

employment, specifically the Age Discrimination in Empl oyment

Act (ADEA) 29 U.S.C. Section 623, and cases interpreting the

provisions of that act are used to analyze cases arising under

the Florida Civil Rights Act, Chapter 760, Florida Statutes.

The ADEA renders it "unlawful for an employer to fail or refuse

to hire or discharge any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's age." 29 U.S.C. Section 623.

23. When a Petitioner alleges disparate treatment,

liability then depends on whether the protected trait actually

motivated the employer's decision. See Chapman v. A.I.

Transport , 229 F.3d 1012, 1024 (11th Cir. 2000). That is to say

that the Petitioner's age must have actually played a role in

the employer's decision - making proc ess. Id. Citing Reeves v.

Sanderson Plumbing Products, Inc. , 530 U.S. 133 (2000).

24. A Petitioner in an age discrimination case has the

burden of proving a prima facie case of age discrimination. Id.

Where, as here, there is not direct evidence of a ge

discrimination, the McDonnell - Douglas burden shifting analysis

will govern such a case. Bogle v. Orange County Board of

Commissioners , 162 F.3d 653, 656 - 57 (11th Cir. 1998). Chapman

v. A.Iansport , supra . (citing McDonnell - Douglas Corp., v.

Green , 411 U.S. 792 (1973); Combs v. Plantation Patterns , 106

F.3d 1519, 1527 - 28 (11th Cir. 1997).

25. In order to establish a prima facie case for an age

discrimination violation, 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 to do

his job; and (4) that he was replaced or otherwise lost his

position to a younger individual. See Chapman , 229 F.3d at

1024. Protected person or age groups or person s between the

ages of 40 and 70. See Bogle supra.

26. If the Petitioner establishes a prima facie case, the

Respondent must articulate a legitimate, non - discriminatory

reason for the challenged employment action. Chapman , at 1124 -

25. The employer's bu rden is merely one of production. It need

not persuade the court that it was actually motivated by the

non - discriminatory reasons. It is sufficient if the employer's

evidence raises a genuine issue of fact as to whether it

discriminated against the Petit ioner. Texas Department of

Community Affairs v. Burdine , 450 U.S. 248, at 256.

27. If an employer articulates one or more such reasons,

the presumption of discrimination is eliminated and the

Petitioner has the opportunity to come forward with evidenc e

sufficient to permit a reasonable trier of fact to conclude that

the reasons given by the employer were not the real reasons for

the adverse employment decision. See Combs , 106 F.3d at 1528.

If the Petitioner does not produce sufficient evidence to

est ablish that the employer's reasons are pretextual, the claim

must fail.

28. The first question presented is whether the Petitioner

has established a prima facie case. During his case in chief

the Petitioner adduced no evidence or testimony concerning hi s

age. He produced no testimony or other evidence to demonstrate

that he was between the ages of 40 and 70 and otherwise a member

of a protected class.

29. The Petitioner produced no evidence to show that he

was replaced or otherwise lost his job to a younger individual.

The person who became a Waste Water Operator after the

Petitioner's termination was Mr. Moss. Mr. Moss was employed as

a Waste Water Operator Trainee with the Respondent before the

Petitioner's employment incidents arose and is curren tly

employed as a Waste Water Operator. Mr. Moss is in fact a

younger person, although the Petitioner produced no evidence

regarding Mr. Moss' date of birth or his age in relationship to

the Petitioner's. The Petitioner also produced no evidence that

he was "replaced by Mr. Moss." Mr. Moss was hired on or about

January 29, 2001, nearly one year prior to the Petitioner's

termination date. Both the Petitioner and Mr. Moss were working

in the same capacities at the Canal Street Plant at the time the

Petiti oner was terminated.

30. Moreover, the Petitioner did not adduce sufficient

evidence to show that he was qualified to perform his job. His

prior performance had been determined unacceptable since at

least July 11, 2001. He had repeatedly failed to com prehend and

perform assigned duties of a Waste Water Operator Trainee.

Despite efforts by the Respondent to correct his deficiencies,

his failure to properly perform his duties and his outright

neglect of assigned duties had never been corrected, had

wors ened and persisted through his termination date. The

Petitioner accordingly did not establish that he was qualified

for the position of Waste Water Operator Trainee.

31. Accordingly, the Petitioner failed to establish a

prima facie case of age discrimin ation. He did not prove that

he was a member of a protected age group, that he was qualified

to perform his job, or that he was replaced or otherwise lost

his position to a younger individual not within his protected

group.

32. If it be assumed arguendo that a prima facie case of

age discrimination was established, the Respondent presented a

legitimate, non - discriminatory reason for the termination. The

Petitioner had a history of discipline problems, reprimands, and

suspension. He had a basic lack of understanding of the

requirements of his job, in part, and in part willfully refused

to perform certain aspects of his job duties. Further, the

Respondent, after conducting an investigation, determined that

on or about September 12, 2001, the near catastr ophic spill at

the waste water plant occurred on the Petitioner's shift and was

the fault of the Petitioner. He was found negligent in the

performance of his duties and cited for violation of city

policy.

33. The other employee involved in the incident in

question, Elmer Wagner, age 67, also failed to discover and

correct the problem at the plant. He received disciplinary

action for that deficiency. Because of Mr. Wagner's prior

record of exemplary performance, however, he received a written

reprimand instead of termination. The difference in the

discipline of the two employees was clearly shown to be

appropriate by the Respondent and to accord with its policy of

progressive discipline.

34. The Petitioner's age was not considered in any way in

the de cision to terminate him. The decision was based solely on

his failure to perform assigned duties, and his prior

performance record. The Petitioner presented no evidence that

the reasons given by the Respondent for the action were

pretextual. He did not establish that the Respondent

intentionally discriminated against him. Consequently, the

Petitioner has not carried his burden of ultimate persuasion.

St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993).

RECOMMENDATION

Having considered the foregoing F indings 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 dismissing the Petition in its

entirety.

DONE AND ENTERED this 3rd day of May, 2004, 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 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 3rd day of May, 2004.

COPIES FURNISHED :

Michael George

25131 Southeast 167th Place

Umatilla, Florida 32784

Steven W. Johnson, Esquire

McLin & Burnsed, P.A.

Post Office Box 491357

Leesburg, Florida 34749 - 1357

Cecil Howard, General Coun sel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

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.