05-000566 Wyn Samuel vs. Colorado Boxed Beef Company, Inc. Status: Closed Recommended Order on Thursday, August 11, 2005.

Summary: Petitioner failed to prove that he was treated disparately due to age or retaliation, as compared to the other employees of different ages, when his compensation or commissions were reduced.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WYN SAMUEL, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0566

)

COLORADO BOXED BEEF COMPANY, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to noti ce, this cause came on for formal

proceeding and hearing before P. Michael Ruff duly - designated

Administrative Law Judge in St. Augustine, Florida, on June 21,

2005 . The appearances were as follows:

APPEARANCES

For Petitioner: Wyn Samuel, pro se

130 Willow Pond Lane

Ponte Vedra Beach, Florida 32082

For Respondent: Robert J. Stovash, Esquire

Stovash, Case and Tingley, P.A.

Sun Trust Center

200 South Orange Avenue, Suite 1220

Orlando, Florida 32801

J. Scott Hudson , Esquire

200 South Orange Avenue, Suite 1220

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Petitioner was discriminated against through an

adverse employment decision by the R espondent , because of the

Petitioner ' s age.

PRELIMINARY STATEMENT

This cause arose upon the filing of a charge of

discrimination , based upon age , and then an amended charge of

discrimination pursuant to Sections 760.01 through 760.11,

Florida Statutes. Specifically , it was alleged by the

Petitioner that the Respondent , Colorado Boxed Beef Company,

Inc., had committed an unlawful employment practice by

discriminating against the Petitioner based upon his age , and

retaliation for the same reason , in terms of reducing the

Petitioner ' s compensation and terminating him .

The allegations in the charge and amended charge were

investigated by the Florida Commission on Human Relations

(Commission) which ultimately determined that there was no

reasonable cause to believe that a discriminatory act or

practice in employment had occurred. The determination of " no

reasonable cause " was issued on January 7, 2005. Thereafter ,

the P etition for Re lief was filed by the Petitioner and the

matter was duly transmitted to th e Division of Administrative

Hearings and the undersigned a dministrative l aw j udge for the

conduct of a formal proceeding and hearing to resolve the

dispute.

The cause came on for hearing as noticed. The hearing was

conducted in St. Augustine, Florida o n June 21, 2005. During

the hearing the Petitioner called one witness, himself , to

testify on his behalf. The Respondent presented the testimony

of one witness as well, George Carter. Additionally, the

Respondent presented two exhibits , which were admit ted into

evidence. The Petitioner presented no exhibits. Upon

conclusion of the proceeding , the parties requested a transcript

thereof and sought to file proposed recommended orders.

Proposed recommended orders were timely filed and have been

considered in the rendition of this R ecommended O rder.

FINDINGS OF FACT

1. The Petitioner was hired by the Respondent on or about

April 27, 1998, as a salesperson. When the Petitioner was hired

he was 77 years of age . He is currently 84 years of age.

Apparent ly t he principal reason the Petitioner was hired was

because of his substantial business contacts and principal

client , which was Winn Dixie Stores, Inc. The Petitioner had

sold food, principally seafood, to Winn Dixie for a substantial

period of time. T he Petitioner worked for a division of the

Respondent known as the Great Fish Company. The Great Fish

Company began operations in October of 1998. Mr. Carter, the

p resident of Great Fish Company was the Petitioner's supervisor.

2. D uring his employm ent with the Respondent , the

Petitioner worked from his home. He sold seafood to customers,

principally Winn Dixie, for which he was primarily paid on a

commission basis.

3. During his term of employment his compensation plan was

periodically changed b y the Respondent. Some of those changes

financially benefited the Petitioner in some years and other

changes served to reduce his commission or compensation. During

the term of the Petitioner ' s employment with the Respondent, the

Respondent also periodic ally changed the compensation plans of

other employees of the Respondent ; some of th ose changes

involved reductions of their compensation plans and some

involved increases. This depended upon the sales volume of

those individual employees or the revenue s ituation of the

company overall.

4 . In or about June of 2003, the Respondent changed the

Petitioner's compensation plan. This change did not benefit the

Petitioner but represented a reduction in compensation. This

change to his compensation plan , howe ver, was based upon

legitimate business and financial reasons and was non -

discriminatory, because it was based upon a down - turn in

business , sales , and revenue for the company.

5 . Around the same period of time, the Petitioner advised

the Respondent tha t he believed he was underpaid on earned

commissions. Because of this the Respondent performed an audit

of the Petitioner's commissions to determine if indeed he had

been underpaid . The results of that audit did not establish

that the Petitioner had been underpaid but rather that he had

been overpaid by approximately $ 9,000 .00 dollars . The audit

results were provided to the Petitioner and the Petitioner

disputed the results.

6 . The Petitioner never complained during his employment

to any employees of the Respondent or supervisors suggesting

that any employees or supervisors had discriminated against him

or retaliated against him because of his age or because of his

dispute concerning compensation, during his term of employment.

There is no evidence th at the Petitioner was singled - out or

treated less favorably than other employees , including other

employees of different ages , in terms of his compensation or

other employment conditions. Indeed , there was no persuasive

evidence presented at hearing that the Petitioner was treated

less favorably in any way than other employees of the

Respondent , regardless of their ages.

7 . There apparently came a time after June of 2003 and

during 2004 when the Petitioner earned very little or no

commissions from the R espondent. His employment was never

actually terminated by the Respondent. The Petitioner rather

either voluntarily quit his employment sometime prior to the

final hearing or his sales opportunities dropped off so that ,

essentially , he was earning little or no compensation from the

Respondent, while working out of his home in accordance with

their arrangement. This down - turn in business apparently had a

great deal to do with the severe financial circumstances his

principal customer, Winn Dixie Stores, In c., found itself in

during this same period of time. In any event , the reduction in

the Petitioner ' s commissions and compensation was not shown to

be due to any effort or intent by the Respondent to single him

out because of his age and reduce his compens ation in some

effort to force him to resign or retire . The reduction in his

compensation was for the business reason of a decrease in

revenues generated by the Petitioner himself or being

experienced by the company as a whole, necessitating reduction

of n ot only the Petitioner ' s but other employee ' s compensation ,

as a matter of a prudent business practice by the Respondent.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction of th e subject matter of and the parties to this

pro ceeding. §§ 120.569 and 120.57(1), Fl a. Stat . (2004). In a

proceeding such as this the initial burden is upon the

Petitioner to establish a prima facie case of discrimination

based upon his age. Once he establishes that prima facie case ,

then the burden to go forward with evidence shifts to the

Respondent to show a legitimate , nondiscriminatory reason for

the employment action in question. If the Respondent

articulates such a reason the burden to go forward shifts back

to the Petitioner to show by prepo nderance of the evidence that

the reason offered by the Respondent is pre - text ual and that its

true reason is indeed discrimination . McDonnell - Douglas

Corporation v. Green , 411 U.S. 798, 801 (1973); Lee v. GTE

Florida , 223 F.3d 1249, 1253 (11th Cir. 2000) .

9. In terms of the Petitioner establishing a prima facie

case of discrimination based upon age , it is undisputed that the

Petitioner was 77 years of age when he was hired. It is also

undisputed that he was qualified and capable of performing the

duti es of his employment position. One of the elements of a

prima facie case of age discrimination , however , is that the

Petitioner has been treated differently and less favorably then

similarly situated individuals of "different" age (as opposed to

only thos e of a "younger" age). See Musgrove v. Gator Human

Services, c/o Tiger Success Center, et al. , 22 F.A.L.R. 355, at

356 (FCHR 1999). See also Morris v. Emory Clinic , 402 F3d 1076,

1082 (11th Cir. 2005). The Petitioner i n this case has not

shown persuasiv e evidence that he suffered an adverse employment

action while others hav ing comparable or lesser qualifications

than he did not suffer such adverse employment actions

(reductions in compensation) nor was it show n that the other

employees were accorded mor e favorable treatment than he was

accorded.

10. The evidence rather shows that a number of employees

suffered compensation reductions based upon legitimate business

reasons of loss of sales and revenues. The Petitioner was not

was not singled - out for s uch treatment. While it is unfortunate

that , apparently , sales drastically declined with his principal

client, Winn Dixie, the resultant reduction in commission

compensation to him was not shown to be due to a discriminatory

or retaliatory intent by the R espondent . I t was simply the

result of an unfortunate d ecrease in the Respondent's and the

Petitioner ' s sales volume and revenue . Cons equently, for the

above reasons, the Petitioner failed to establish a prima facie

case of age discrimination or retaliat ion.

11. He has offered no persuasive evidence that the

Respondent ' s actions in connection with changes in his

compensation plan , and in connection with the audit of the

Petitioner ' s commissions , are based upon his age or upon any

animus directed toward retaliating against the Petitioner. The

Petitioner may have been disappointed that the compensation plan

was changed to his detriment , and may dispute the results of the

audit concerning his commission payments , but t here was no

credible evidence that hi s age was a factor in the decision to

change his compensation plan or to audit his commission s .

12. T he Respondent articulated legitimate, non -

discriminatory reasons for its decision , or decisions over

several years , to change the Petitioner's compensat ion plan.

Simply put, the decisions concerning the audit and reduction of

his compensation plan did not single him out exclusively for

such treatment - vis a vi s other employees based upon age or

retaliation and were due to legitimate business reasons

invo lving sales and revenue declines.

13. Concerning the conduct of the audit, the credible

persuasive evidence established that the audit was conducted on

the Petitioner's commissions as a result of the Petitioner ' s

asserting to the Respondent that he had be en underpaid. Thus,

the Respondent's audit was carried out for legitimate , non -

discriminatory fact - finding reasons. The results of the audit

were simply adverse to the Petitioner and therefore were

disputed by him but were not shown to be discriminatory or

retaliatory in nature.

14. In summary, legitimate non - discriminatory business

reasons for the actions taken against the Petitio ne r's

employment status w as prove n by preponderant , persuasive

evidence and , for the reasons concluded above, no prepondera nt

persuasive evidence was offered by the Petitioner to establish

that those reasons were a pretext f or age discrimination or

retaliation.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the can dor and

demeanor of the witnesses, and the pleadings and argument of the

parties, it is, therefore ,

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the Petition for Relief

in its entirety.

D ONE AND ENTERED this 11th day of August, 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 - 96 75

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of August , 2004.

C OPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee P arkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Wyn Samuel

130 Willow Pond Lane

Ponte Vedra Beach, Florida 32082

J. Scott Hu dson, Esquire

200 South Orange Avenue, Suite 1220

Orlando, Florida 32801

Robert J. Stovash, Esquire

Stovash, Case and Tingley, P.A.

SunTrust Center

200 South Orange Avenue, Suite 1220

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All pa rties 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.