04-001017 Elamir G. Ghattas vs. Department Of Insurance Status: Closed Recommended Order on Thursday, August 26, 2004.

Summary: The Respondent articulated a non-discriminatory reason for re-assigning the Petitioner, and the Petitioner did not rebut this evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELAMIR G. GHATTAS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1017

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on July 15, 2004, by

Stephen F. Dean, assigned Administrative Law Judge of the

Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Elamir G. Ghattas, pro se

811 Chestwood Ave nue

Tallahassee, Florida 32303

For Respondent: Dennis Silverman, Esquire

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Talla hassee, Florida 32399 - 0333

ISSUE

Whether the Department of Insurance (DOI), now Department

of Financial Services, discriminated against the Petitioner on

the basis of national origin or age contrary to Chapter 760,

Florida Statutes.

PRELIMINARY ST ATEMENT

This case arose when the DOI reassigned the Petitioner from

maintaining the law library at the Division of Legal Services to

the Service of Process Section, which processed legal papers

related to litigation. Although the Petitioner accepted the

reassignment of duties, he expressed his unhappiness with the

transfer to his supervisors and eventually retired rather than

continue to perform the duties. Subsequently, he filed a

complaint with the Florida Commission on Human Relations (FCHR)

alle ging that the DOI had discriminated against him on the basis

of age and national origin.

The FCHR investigated the allegations, and made a

determination of no cause. The FCHR notified the Petitioner of

his right to a hearing, and the Petitioner filed a Pe tition for

Relief, which was transmitted by the FCHR to the Division of

Administrative Hearings on March 19, 2004. An Initial Order was

issued on March 22, 2004, and the matter was noticed for hearing

after responses from both parties on March 31, 2004, f or May 20,

2004. On that date a hearing was commenced; however, it

appeared that there was a possibility that the matter could be

resolved and hearing was recessed to permit the parties to

discuss resolution. Thereafter, it was determined that the

partie s could not resolve the issues, and the case was re -

noticed for hearing on July 15, 2004, and heard as noticed.

At the formal hearing, the Petitioner testified in his own

behalf and introduced no exhibits. The Respondent presented the

testimony of Stephan ie Iliff, Don Dowdell, Beverley DiGirolamo,

Pam Edenfield, and Julie Kail, who are all employees of the DOI.

The Department introduced Respondent's Exhibits 1 through 8,

which were received into the record.

At the conclusion of the hearing, a transcript w as ordered

which was filed on August 4, 2004. The parties both timely

filed proposed findings, which were read and considered.

FINDINGS OF FACT

1. The Petitioner is Elamir G. Ghattas, a naturalized

American of Egyptian birth, who is 71 years of age.

2. The Petitioner was employed by the DOI for 18 years.

He was assigned to maintain the law library at the DOI in 1985,

and performed those duties until 2002. His job title at that

time was "Records Specialist," and his supervisor was Beverley

DiG irolamo, who was the office manager of the Legal Division.

3. In 2002, he was transferred from his duties in the law

library to duties in the Service of Process Division (SPD) of

DOI. His new supervisor was initially Carolyn Ash, who was

asked to sign Pe titioner's timesheet, and who was at a lower pay

grade (13) than the Petitioner's pay grade (16). After he

brought this to management's attention, Pam Edenfield was

assigned to sign his timesheet. His duties involved maintaining

and filing documents rece ived by the DOI relating to the service

of process in the legal cases filed throughout the state. The

work of the division has increased greatly due to a change in

the statutes, and the SPD could not process the increased

workload with its existing employ ees.

4. To resolve the workload issues, personnel from other

portions of the legal department were transferred to the SPD.

The Petitioner was one of approximately four individuals who

were transferred from Legal Services Division to SPD.

5. The decisi on to move the Petitioner was made by Ms.

DiGirolamo and Ms. Edenfield based upon his low workload in the

library and the high workload in SPD. After the Petitioner was

moved, his duties were assumed as an additional duty by one of

the legal secretaries w ho spends between four and eight hours on

the activity per month.

6. The basis for his move was explained to Petitioner by

Ms. DiGirolamo and Ms. Edenfield, and by Mr. DowDell, who was

their supervisor.

7. Following his transfer, the Petitioner's perfo rmance

suffered, and when he was formally counseled about it, he

ultimately resigned and retired.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the issues and parties in this case pursuant

to Sections 120.57 and 760. 11, Florida Statutes.

9. The Petitioner filed a Petition for Relief with the

FCHR alleging that the Respondent has discriminated against him

because of his age and national origin.

10. The Petitioner has the burden to show that he is a

member of a protec ted class and that an adverse job action was

taken against him.

11. In the Age Discrimination in Employment Act (ADEA)

cases, there are three methods by which a Plaintiff can carry

his burden at the prima facie stage. First, a prima facie case

can be p roven through the use of direct evidence of the

defendant - employer's discriminatory intent. In direct evidence

cases, the plaintiff introduces evidence that, if believed,

establishes that an employer acted with discriminatory motive in

making an employmen t decision. Early v. Champion Intern. Corp. ,

907 F.2d 1077 (11th Cir. 1990). Direct evidence is that

quantity of evidence that tends to prove the existence of a fact

without inference or presumption. Id . quoting Carter v. City of

Miami , 870 F.2d 578, 58 2 (11th Cir. 1989). Only the most

blatant remarks, whose intent could be nothing other than to

discriminate on the basis of age, constitute direct evidence of

discrimination. Id . at 582. No such evidence has been

presented in this case.

12. A se cond method of drawing the nexus between age and

adverse action by an employer is by statistical proof of a

pattern or practice of discrimination. Pace v. Southern Ry.

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

establishing a prima facie case is necessary in those situations

where the plaintiff is replaced by an individual who is himself

or herself a member of the protected class. In this situation,

"evidence of a pattern of terminating older workers . . .

allow[s] the reasonable inference th at age had played a role in

[plaintiff's] discharge." Id . at 1388, quoting McCorstin v.

U.S. Steel Corp. , 621 F.2d 749, 754 (5th Cir. 1980). If a

plaintiff relies solely on statistical evidence to prove

discrimination, he has the burden of presenting suf ficient proof

that, in conjunction with other evidence, gives rise to an

inference of discrimination. See Pace , 701 F.2d at 1388. No

such evidence was presented in this case.

13. The final and most common method of proving an ADEA

violation is thro ugh circumstantial evidence. In this instance,

the plaintiff utilizes what is commonly referred to as "the

McDonnell Douglas test." This test, adopted from the Supreme

Court's decision in McDonnell Douglas Corp. v. Green , 411 U.S.

792, 93 S.Ct. 1817 (197 3), requires a plaintiff to establish a

prima facie case by proving that he or she (1) was a member of

the protected class, (2) was subject to an adverse employment

action, (3) was replaced with a person outside the protected

group, and (4) was qualified t o do the job. Verbraeken v.

Westinghouse Elec. Corp. , 881 F.2d 1041, 1045 (11th Cir 1989).

The Eleventh Circuit has held that if the discharged employee is

replaced by an individual who is also in the protected group,

that such an occurrence will not, as a matter of law, preclude

proof of a prima facie case. Pace v. Southern Ry. System , 701

F.2d 1383 (11th Cir. 1983).

14. The Petitioner proved that he is within two protected

classes, national origin and age. The Petitioner alleges that

he was moved and the move constitutes a constructive discharge.

This was not proven. The facts show that he was reassigned

duties, and that the duties were consistent with his job title.

The Respondent argues that the change in job duties did not

constitute an adverse job action; however, the evidence

indicates that his line of supervision changed and, in fact,

Petitioner's supervision was changed when he pointed out that he

was being supervised by a person of a lower pay grade than he

was. Even so, he ended he up in a different branch of the

organizational chain with a different rater. This constitutes a

"demotion." The Petitioner was not discharged, so his position

could not be filled; however, this is not necessarily an element

of proof. He was qualified to perfor m the job. All of the

parties involved in the decision - making process and the person

who took over his library duties, all of whom testified and were

observed, were younger than the Petitioner. Therefore,

arguably, the Petitioner presents a prima facie c ase.

14. Once a prima facie case is established, the employer

must rebut the inference by articulating a nondiscriminatory

reason for the action taken. If this is done, the plaintiff

then must prove by a preponderance of the evidence that the

employ er's asserted reason is merely a pretext for a

discriminatory dismissal. Verbraeken , 881 F.2d at 1045.

15. In this case, the DOI presented competent,

substantial, and credible evidence that it moved the Petitioner

to SPD because of workload issues. The Petitioner did not rebut

this testimony and did not show that it was pretextual.

Therefore, the Petitioner failed to carry his burden of proof.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is recommended that the Flo rida Commission on Human

Relations enter its final order dismissing the Petition for

Relief filed by the Petitioner.

DONE AND ENTERED this 26th day of August, 2004, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEA N

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 26th day of August, 2004.

COPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commiss ion on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Elamir Ghattas

811 Chestwood Avenue

Tallahassee, Florida 32303

Dennis Silverman, Esquire

Division of Legal Services

Department of Financial Services

200 East Gaines Str eet

Tallahassee, Florida 32399 - 0333

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.