05-003285 Robert D. Brown vs. Rapak, Llc Status: Closed Recommended Order on Wednesday, July 26, 2006.

Summary: Petitioner failed to prove that he was discharged from his job because of his age. The evidence established that he was discharged because he failed to meet his expected sales goal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT D. BROWN , )

)

Petitioner , )

)

vs. ) Case No. 05 - 3285

)

RAPAK, LLC , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal heari ng was held in this case

on April 18, 2006, in Tampa, Florida, before Carolyn S.

Holifield, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce A. Plesser, Esquire

Den nis Hernandez & Associates, P.A.

3339 West Kennedy Boulevard

Tampa, Florida 33609

For Respondent: Brian M. Stolzenbach, Esquire

Seyfarth, Shaw, LLP

55 East Monroe St reet, Suite 4200

Chicago, Illinois 60603 - 5803

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice by discharging Petitioner because of his

age.

PRELIMINARY STATEMENT

On April 1 9 , 2005, Petitioner , Robert D. Brown

(Petitioner) , filed a n Employment Complaint of Discrimination

with the Florida Commission on Human Relations (Commission) ,

alleging Respondent , Rapak, LLC (Respondent or Rapak) , had

discriminated against him based on his age, by terminating his

employment, in violation of Florida Civil Rights Act of 1992,

Title VII of the Federal Civil Rights Act of 1964, the Age

Discrimination in Employment Act and/or the Americans With

Disabilities Act. The Commission issued a "No Cause"

Deter mination on August 3, 2005. Petitioner filed a Petition

for Relief on September 12, 2005, and, again , alleg ed "age

discrimination."

On or about September 12, 2005, the Commission transmitted

the Petition for Relief to the Divi sion of Administrative

Hear ings for assignment of an Administrative Law Judge to

conduct a formal hearing. The matter was i nitially set for

hearing on November 2, 2005, but was continued to February 7,

2006, at Respondent's request and continued again until

April 18, 2006, at Peti tioner's request.

At the final hearing, Petitioner testified on his own

behalf and presented the testimony of Jackie Chapman,

Mark Fit z gerald, and Joe Pranckus. Petitioner's Exhibit 1 was

admitted into evidence. Respondent's Exhibits 1 and 3 through 6

w ere received into evidence. Respondent did not call any

witnesses.

A Transcript of the hearing was filed on May 11, 2006. By

stipulation of the parties, it was agreed to extend the time to

file proposed recommended orders to June 9, 2006. Both parties

t imely filed P roposed R ecommended O rder s in this matter.

FINDINGS OF FACT

1. Respondent produces flexible packaging, develops

technology to fill that packaging with liquids, and provides

services to incorporate its flexible packaging systems into its

custo mers' facilities. Respondent primarily produces "bag - in -

box" products and manufacturing systems for customers such as

Pepsi - Cola and Wendy's, as well as various customers in the

milk, juice , and chemical business.

2. Respondent operates two manufacturing facilities, one

located at its headquarters in Romeville, Illinois, and another

located in Union City, California.

3. Petitioner was born on April 24, 1946.

4. In 1996, Respondent hired Petitioner as a sales

representative, and he served in that positio n until he was

discharged on April 19, 2004.

5. Petitioner initially was assigned to service the Upper

Midwest Region and was based in Chicago , Illinois. In 1999,

Respondent reassigned Petitioner to the Southeast Region.

6. A fter his reassignment to t he Southeast Region ,

Petitioner continued to live in the Chicago area for several

years. However, in December 2002 or January 200 3 , Petitioner

and Respondent mutually agreed that Petitioner would relocate to

Florida. Because the move resulted from a mutu al decision

between Petitioner and one of Respondent's founders, Respondent

paid $25,000 towards Petitioner's moving expenses. After the

move, Petitioner continued to be responsible for the same

geographical territory and the same customers as before the

move.

7. Joe Pranckus is Respondent's v ice p resident of s ales.

At the time of Petitioner's discharge, the sales department

consisted of a customer service department and four geographical

sales territories: the Central, Western, Eastern and Mexico

Regio ns. The Central and Western Regions (where Respondent's

manufacturing facilities are located) each were overseen by a

r egional m anager. The Eastern and Mexico Regions did not have

r egional m anagers. As Petitioner was located in the Eastern

Region, Mr. P ranckus served as his direct supervisor.

8. From 1999 until his dismissal, Petitioner was

Respondent’s only sales representative in the Southeast. His

primary responsibility was to maintain and increase Respondent’s

business in that region of the country . T he Rapak sales

department as a whole is generally responsible for maintaining

and increasing Respondent’s overall sales. This involves not

only selling products and services, but also following up with

customers to help them solve problems and otherwi se to ensure

their happiness.

9. Because his primary responsibility was maintaining and

increasing sales, Mr. Pranckus judged Petitioner almost

exclusively by his year - to - date sales numbers as compared to the

same period in the previous year. These numbe rs were calculated

by Mr. Pranckus on a fiscal - year basis, from May 1st through

April 30th. For the 2003 - 2004 fiscal year, Mr. Pranckus

established a goal for Petitioner of 15 percent growth in sales.

The minimum expectation was that Petitioner maintain at least

the same amount of sales he had the previous year.

10. During the 2003 - 2004 fiscal year, Mr. Pranckus e -

mailed Petitioner his sales - versus - last - year figures on almost a

monthly basis. By the end of June 2003, Petitioner had sold

only 84 percent as much as he had sold through June 2002; by the

end of July, only 87 percent as much as he had sold through

July 2002; by the end of August, 91 percent; September, 81

percent; October, 90 percent; November, 85 percent; December, 87

percent; and by the en d of March 2004 (eleven months into the

fiscal year), he had sold only 88 percent as much as he had sold

through the first eleven months of the 2002 - 2003 fiscal year.

In short, as the fiscal year drew to a close, it was clear that

Petitioner was going to suffer a net loss of business for the

year.

1 1 . In late October 2003, Petitioner suffered a heart

attack and underwent triple bypass surgery. Petitioner was

unable to work for approximately two months while recovering

from surgery . However , Petitioner r eturned to work in

January 2004, initially working on a limited basis.

1 2 . Petitioner's sales numbers suffered because he lost

some certain accounts owing to factors beyond his control (such

as product quality and price issues). Nonetheless, Petitioner

concedes that it was his job to replace his lost sales, no

matter what caused his customers to switch suppliers.

1 3 . Mr. Pranckus typically holds one sales meeting each

year for his entire staff. In February 2004, Mr. Pranckus held

one of those meetings. At that meeting, Mr. Pranckus informed

Petitioner that "changes would be made if [his] numbers didn't

improve."

1 4 . In his application for unemployment compensation,

Petitioner stated that Mr. Pranckus also warned him on March 10 ,

2004, that he needed t o improve his sales numbers.

1 5 . Finally, Mr. Pranckus sent an e - mail to Petitioner on

March 27, 2004. In that e - mail, Mr. Pranckus delivered the

following written warning:

Your territory is at a critical state. We

can not continue along this path. S ales

must be improved immediately or we will need

to change. We agreed at our sales meeting

to get this back on track. It is not

showing up in the numbers and activity.

Call me and let me know how we can help.

1 6 . On April 19, 2004, Mr. Pranckus disch arged Petitioner

because of his poor performance. His year - to - date sales figures

were unacceptably low, as compared to the previous year, and

Mr. Pranckus saw no evidence of plans or activity designed to

improve matters.

17. After Petitioner was disch arged, he filed an

application for unemployment compensation . On the application,

Petitioner stated that he was discharged “for failure to achieve

sales goals.” Later in that same application, in response to a

request to “briefly summarize your reason fo r separation from

this employer,” Petitioner wrote: “I did not achieve my sales

goals.” Petitioner did not assert anywhere in his application

for unemployment benefits that he was discharged because of his

age.

1 8 . At the time of his discharge, Petition er was 57 years

old (almost 58). Mr. Pranckus did not know Petitioner’s exact

age, but he would have guessed (based on physical appearance)

that Petitioner was in his mid - 50s at the time. Mr. Pranckus

did not consider this to be “old . ” I n fact, Petition er is not

much older than Mr. Pranckus.

1 9 . Mr. Pranckus interviewed three individuals to fill

Petitioner’s position. He ultimately selected Jim Wulff.

Mr. Pranckus did not know their ages at the time of the

interviews, but he would have guessed (again , by appearance)

that Mr. Wulff was in his mid - 50s and that the other two

interviewees were in their mid - to late 40s and mid - to late

50s, respectively. In fact, Mr. Wulff was born on May 26, 1948,

so he was 55 years old (nearl y 56) when Mr. Pranckus hir ed him.

20 . Sales analysis from June 2003 showed that eight Rapak

employees or representative s did not meet the 100 percent sales

goal. Those listed were either Rapak non - supervising employe es

with direct responsibility for sales, supervising employees, or

non - employee independent brokers. However, none of these

employees, whether younger or older, was similarly situated to

Petitioner at the time of his discharge.

21. As an initial matter, there were four other non -

supervisory employees with direct resp onsibility for sales:

Dennis Hayes, Marvin Groom, Donald Young , and Keith Martinez.

The other individuals responsible for sales were either

supervisory employees or non - employee independent brokers.

Because the two supervisors have management responsibi lities and

are responsible for their entire regions and the individuals who

report to them, they are not judged primarily by whether they

personally meet the 100 percent or 115 percent sales - versus -

last - year objectives. Brokers, meanwhile, are not employe es.

Rather, they are independent contractors paid on a straight

commission, so Respondent receives value from their services

reg ardless of how much they sell.

2 2 . Mr. Hayes was the only other employee who performed

the exact same job as Petitioner, but h e reported to Regional

Manager Dan Petriekis in the Central Region, not directly to

Mr. Pranckus. Moreover, as of March 2004, Mr. Hayes had sold

127 percent as much as he had during the same period the

previous year. 1 Mr. Hayes is almost ten years older than

Petitioner.

2 3 . Mr. Young was also responsible for sales, but he was

semi - retired, serviced only one customer and received a base

salary for his work. As of March 2004, however, Mr. Young had

sold 115 percent as much as he had during the same perio d the

previous year. Mr. Young is more than twelve years older than

Petitioner.

2 4 . F inally, while Keith Martinez and Marvin Groom had

some responsibility for sales, their positions were “radically

different” from Petitioner’s. Whereas Petitioner coul d identify

certain problems with Respondent’s machinery and products and

would refer those problems to a service technician to assist his

customers, Mr. Groom and Mr. Martinez were both originally hired

as service technicians . Based on this experience, th ey could

and did not only identify technical problems, but also perform ed

the necessary maintenance and repair work on the spot, in

addition to performing preventative maintenance. Petitioner, by

contrast, has spent his entire working life as salesman.

A ccordingly, he was neither capable of, nor expected to, perform

these additional mai ntenance and repair functions.

2 5 . As a result, Mr. Groom and Mr. Martinez received more

leeway on their sales performance than Petitioner because they

brought additional value to Respondent’s business that

Petitioner could not offer. Nonetheless, as of March 2004,

Mr. Groom was running at 100 percent versus the prior year and

Mr. Martinez was running at 87 percent . Mr. Groom is roughly

three years younger than Petitione r, and Mr. Martinez is 15 and

one - half years younger than Petitioner.

2 6 . Respondent paid Petitioner $113,000 in salary and

commissions during his last full calendar year of employment

with Rapak . Petitioner was out of work for ten months after his

dismi ssal. During that time, he received $8,000 in unemployment

compensation from the State of Florida and $8 , 942.33 in

severance pay from Respondent. In his new job, Petitioner

projects that he will earn $100,000 in his first year but admits

that he could ma ke at least $113,000 because his compensation is

once again dep endent upon sales commissions.

CONCLUSIONS OF LAW

2 7 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. See §§ 120.569 a nd 120.57(1) , Fla. Stat. (200 5 ) .

2 8 . The Florida Civil Rights Act of 1992 makes it an

unfair employment practice for any employer “to discharge . . .

any individual . . . because of . . . age.” § 760.10(1)(a) ,

Fla. Stat. (200 4 ). Respondent is an “employ er” as defined in

the Act. See § 760.02(7) , Fla. Stat.

29 . Federal case law interpreting the Age Discrimination

in Employment Act (“ADEA”) is generally applicable to age

discrimination claims arising under the Florida Civil Rights

Act. See Florida State Univ. v. Sondel , 685 So. 2d 923,

(Fla. 1st DCA 1996). Accordingly, the United States Supreme

Court’s McDonnell - Douglas burden - shifting paradigm is applied to

cases arising under the Florida Civil Rights Act. See Florida

Dept. of Community Affairs v. Br yant , 586 So. 2d 1205 (Fla. 1st

DCA 1991), citing McDonnell - Douglas Corp. v. Green , 411 U.S. 792

(1973).

3 0 . Under the McDonnell - Douglas model, an individual

claiming that he was discharged because of his age cannot

establish even a prima facie case unl ess he can prove that he

was: (1) a member of the protected age group; (2) discharged;

(3) qualified to do the job; and (4) replaced by a younger

individual. Moreover, even if the claimant was replaced by a

younger person, he cannot establish a prima fac ie case if the

replacement was “insignificantly younger.” See O’Connor v.

Consolidated Coin Caterers Corp. , 517 U.S. 308, 312 - 13 (1996).

3 1 . If the claimant establishes a prima facie case of age

discrimination, the employer must at least articulate a

l egitimate reason for the discharge. Once that has occurred,

however, the ultimate burden shifts back to the claimant to

prove by a preponderance of the evidence that this articulated

reason is merely a pretext for an age - based decision. See Texas

Dept. o f Community Affairs v. Burdine , 450 U.S. 248 (1981).

3 2 . The Commission has held that the Florida Civil Rights

Act unlike the ADEA, which protects only individuals over age 40

prohibits discrimination based on any age, from “birth to

death.” See , e.g. , Marchinko v. Wittemann Co. , Case No. 05 - 2062

(DOAH November 1, 2005), FCHR Order No. 06 - 005 (Jan uary 6,

2006); Coffy v. Porky’s Barbecue Restaurant , Case No. 04 - 4316

(DOAH March 18, 2005), FCHR Order No. 05 - 053 (May 18, 2005). In

addition, unlike the fede ral statute, the Florida Civil Rights

Act prohibits favoring the old over the young, as well as the

young over the old. See I d. As a result, the Commission has

held that an individual seeking to establish a prima facie case

of age discrimination need est ablish only that he was replaced

by someone of a “different” age rather than someone younger.

See I d.

33 . This conclusion does nothing to detract from the

common sense holding in O’Connor that the “difference” in age

between the person claiming age discr imination and his

replacement must be “significant.”

34 . Here, Petitioner did not establish even a prima facie

case of age discrimination because his replacement , Jim Wulff

was only two years his junior. See , e.g. , Munro v. Winn - Dixie

Stores, Inc. , Case No. 0 3 - 3591 (DOAH March 23, 2004) (“where, as

here, the age difference between the successful candidate and

the plaintiff/petitioner is less than ten years, that age

difference is presumptively insubstantial for purposes of

establishing a prima facie case of age discrimination without

showing that the employer viewed the rejected employee’s age to

be significant”) .

35 . Petitioner met only three of the four elements

required under Chapter 760, Florida Statutes (2006): (1) he is

a member of a protected clas s in that he is over 40 years of

age; (2) he was subject to adverse employment action in that he

was terminated from his job as a sales representative; and

(3) he was qualified to do the job in that he was able to

complete the necessary tasks associated w ith being a sales

representative . However, Petitioner failed to establish the

fourth element that he was replaced by a younger person or a

person of a different age in that Mr. Wulff is only two years

younger than Petitioner.

3 6 . Having failed to establi sh all four elements required

under Chapter 760, Florida Statutes (200 6 ), Petitioner has not

proved a prima facie case.

3 7 . A ssuming arguendo that Petitioner prove d a prima facie

case, Resp ondent has articulated and substantiated its

legitimate reason for Petitioner’s dismissal. The evidence

adduced at the hearing clearly established that Petitioner was

discharged because his sales figures were well below his

supervisor’s expectat ions.

3 8 . Petitioner has not proved by a preponderance of the

evidence that Respondent’s reliance on his poor sales

performance was a mere pretext for age discrimination. To the

contrary, the supervisor who discharged Petitioner testified

that he did not even consider Petitioner to be much older than

himself, much less objective ly “old.” Furthermore, when

Petitioner was discharged, Respondent’s employee sales force

consisted of one individual who was 70 years old, one who was

67, one who was 55 and one who was 42, in addition to

Petitioner, who was 57. After Petitioner was disc harged, he was

replaced by someone who was 55. These facts undermine any

suggestion that Respondent harbored prejudice against

individuals Petitioner’s age.

39 . In sum, Petitioner failed to prove by a preponderance

of the evidence that he was discharged because of his age.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent committed

no unlawful employment practice and di smissing the Petition for

Relief.

DONE AND ENTERED this 26th day of July , 2006 , in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 July , 2006 .

ENDNOTE

1/ The March 2004 report was the last one Pranckus prepared

before Petitioner’s discharge.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Brian M. Stolzenbach, Esqui re

Seyfarth, Shaw, LLP

55 East Monroe Street, Suite 4200

Chicago, Illinois 60603 - 5803

Bruce A. Plesser , Esquire

Dennis Hernandez & Associates, P.A.

3339 West Kennedy Boulevard

Tampa, Florida 33609

Cecil Howard, General Counsel

Florida Commission on Hum an 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 Recom mended Order should be filed with the agency that

will issue the final order in this case.