05-002062 Linda Marchinko vs. The Wittemann Company, Llc Status: Closed Recommended Order on Tuesday, November 1, 2005.

Summary: Respondent articulated a legitimate, non-discriminatory reason for not hiring Petitioner; no evidence of age discrimination was found.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA MARCHINKO, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2062

)

THE WITTEMAN COMPANY, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on August 24, 2005,

in Bunnell, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Linda Marchinko, pro se

30 We stmount Lane

Palm Coast, Florida 32164

For Respondent: Matthew S. Welch, Esquire

Rice & Rose

222 Seabreeze Boulevard

Daytona Beach, Florida 32118

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Charge of Discrimination filed by

Petitioner on November 17, 2004.

PRELIMINARY STATEMENT

On November 17, 2004, Peti tioner, Linda Marchinko, filed a

Charge of Discrimination with the Florida Commission on Human

Relations (FCHR) which alleged that The Witteman Company

violated Section 760.10, Florida Statutes, by discriminating

against her on the basis of age.

The alle gations were investigated and on May 3, 2005, FCHR

issued its determination of "no cause" and Notice of

Determination: No Cause.

A Petition of Relief was filed by Petitioner on May 31,

2005. FCHR transmitted the case to the Division of

Administrative Hea rings (Division) on or about June 7, 2005. A

Notice of Hearing was issued setting the case for formal hearing

on August 24, 2005.

At hearing, Petitioner testified on her own behalf and

presented the testimony of Clifford Martin. Petitioner's

Exhibit nu mbered 1 was admitted into evidence. Respondent

presented the testimony of Cara Brammer and William Geiger.

Respondent offered Exhibits numbered 1 through 9, which were

admitted into evidence.

A transcript consisting of one volume was filed on

Sep tember 6, 2005. Petitioner filed a post - hearing submission.

Respondent filed Proposed Findings of F act and a Proposed Order.

Both filings were timely and have been considered in the

preparat ion of this Recommended Order. 1/

FINDINGS OF FACT

1. Petition er, Linda Marchinko, was employed by the

Witteman Company, Inc., from 1966 until April 2003. The

Witteman Company, Inc. (hereinafter "Inc.") was a division of

the Dover Corporation. While employed by Inc., Petitioner held

the position of traffic manager.

2. The most recent description of the duties of the

position of traffic manager reads as follows:

Responsible for, but not limited to, traffic

managerial duties, coordinate and arrange

for all product shipments, required

documentation, customer interacti on, and

providing back - up support as required to

others within the Company. Work with

minimum supervision, produce quality,

complete and accurate work and be an active

and positive participa n t on teams and

committees to which assigned.

3. In February 2003, Cryogenic Industries made an asset

purchase of Inc. and established Witteman, LLC (hereinafter

LLC). LLC engineers and sells carbon dioxide, recovery, and

production equipment to soft drink and brewing companies.

Whereas Inc. had a maximum of 110 e mployees, LLC was established

with only 17 employees, as many departments such as purchasing,

traffic, and accounting were eliminated or "farmed out."

4. At the time of the asset purchase, all employees of

Inc . were terminated due to the sale of the asset s of Inc.

5. Petitioner was terminated from employment with Inc.

effective April 8, 2003. She signed a Severance Agreement and

Waiver and Release of Claims , releasing Inc. from all claims,

including any related to the Age Discrimination and Employment

Act.

6. The position of traffic manager has not and does not

exist at LLC.

7. Petitioner was not hired by LLC. Petitioner has never

been employed by LLC and, therefore, was not terminated by LLC.

8. A few employees of Inc. were hired by LLC. Petitione r

was not one of them.

9. Cara Brammer is one of the employees of Inc. who was

hired by LLC. Her position is Comptroller.

10. Petitioner contends that regardless of Ms. Brammer's

title, M s . Brammer perform s the same functions that Petitioner

used to p erform for Inc. Petitioner believes that Ms. Brammer

was hired by LLC because she is younger than Petitioner. At the

time Ms. Brammer was hired by LLC, she was approximately 39

years old and Petitioner was 55 years old.

11. Ms. Bra mmer's duties as C omptroller include accounts

payable, cost accounting, and general ledger work. According to

Ms. Brammer, the traffic manager duties previously performed by

Petitioner were separated between two of LLC's sister companies

in California, which handle all of the major equipment,

including manufacturing and shipping for LLC .

12. William Geiger is General Manager of LLC. According

to Mr. Geiger, the manufacturing of the product was shifted to

two divisions located in California. The primary shipping of

the company's product was also shifted to California. This is

consistent with Ms. Brammer's testimony.

13. According to Ms. Brammer, a small portion of the

shipping duties that had initially been sent to California are

now handled by LLC. She estimates th at she spends only four to

five hours a week on these traffic duties, that Mr. Geiger

handles some of these duties, and that "quite a bit" of these

traffic duties have been farmed out to a company called Freight

Forwarder.

14. LLC employs people in their thirties, forties,

fifties, and sixties.

15. There is no competent evidence that LLC used age as a

criterion in its determination of who would and who would not be

hired for the newly formed company.

CONCLUSIONS OF LAW

16. The Division of Adm inistrative Hearings has

jurisdiction over the parties and subj ect matter in this case.

§§ 120.569 and 120.57, Fla . Stat.

17. Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

other wise discriminate against an individual on the basis of

age.

18. In order to make out a prima facie case of age

discrimination under Section 760.10(1)(a), Florida Statutes, 2/

Petitioner must show that she was a member of a protected age

group, that she was qualified for the job, that she was

rejected, and that she lost the position to a younger person.

Benson v. Tocco, Inc. , 113 F.3d 1203, 1207 (11th Cir. 1997),

citing McDonnell Douglass Corp. v. Green , 411 U.S. 792 (1973)

(The 11th Circuit has adop ted a variation of the McDonnell

Douglass Corp. v. Green test in Age Discrimination in Employment

Act violation claims.)

19. Arguably, Petitioner has met her burden of proving a

prima facie case of age discrimination. She is, and was at the

time of the employment decision at issue here, a member of a

protected age group. While the minimum qualifications for the

job are not clear from the record, there is nothing to indicate

that she was not qualified for the job . Further, she was not

fired beca use of poor job performance. Accordingly, she met the

minimum requirements for the job satisfying the first prong of

establishing a prima facie case. As to the second prong of

establishing a prima facie case, Petitioner was not fired by LLC

because she w as never hi red by LLC. However, Petitioner was

subject to an adverse employment decision in that she was not

hired for the job. Ms. Bra mmer, while 39 at the time she was

hired by LLC, was just under the age protected under the law

and, therefore, was not a member of a protected age group at the

time she was hired. This satisfies the third prong of

establishing a prima facie case.

20. When the charging party, i.e. , Petitioner, is able to

make out a prima facie case, the burden to go forward shifts to

t he employer to articulate a legitimate, non - discriminatory

explanation for the adverse employment action. Walker v.

Prudential Property and Casualty Insurance Company , 286 F.3d

1270 (11 th Cir. 2002); Department of Corrections v. Chandler ,

582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting

burdens of proof in discrimination cases). The employer has the

burden of production, not persuasion, and need only persuade the

finder of fact that the decision was non - discriminatory.

Department of Correcti ons v. Chandler , supra ; Alexander v.

Fulton County, GA , 207 F.3d 1303 (11th Cir. 2000).

21. Respondent has met its burden of production.

Respondent has adequately articulated a legitimate, non -

discriminatory explanation for its employment decision r egarding

Petitioner. First, LLC did not terminate Petitioner because she

was never employed there. Secondly, Petitioner's job position

was eliminated in the formation of LLC. As such, Respondent has

asserted a legitimate , non - discriminatory reason for n ot

employing Petitioner. The decision of LLC regarding Petitioner

was based upon legitimate means and was not based upon

Petitioner's age.

22. Petitioner failed to present sufficient evidence to

contradict the evidence presented by Respondent that she was not

hired by LLC because her position was simply not part of the

newly formed company.

23. Once the employer articulates a legitimate non -

discriminatory explanation for its actions, the burden shifts

back to the charging party to show that the explana tion given by

the employer was a pretext for intentional discrimination.

"Would the proffered evidence allow a reasonable factfinder to

conclude that the articulated reason for the decision was not

the real one? " Walker v. Prudential , supra . "The empl oyee 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 , 582 So. 2d 1183 at 1186; Alexander v.

Fulton County, GA , supra . Petitioner has not met this burden.

24. Courts have found only the most blatant remarks, whose

intent could be nothing other than to discriminate on the basis

of age, to con stitute direct evidence of age discrimination.

See, e.g. , Barnes v. Southwest Forest Industries , 814 F.2d 607

at 610 (11th Cir. 1987) (remark by personnel manager to

terminated security guard that in order to transfer , "you would

have to take another phys ical examination at your age, I don't

believe you could pass it" was not considered direct evidence of

age discrimination by the court); Williams v. General Motors

Corp. , 656 F.2d 120 at 130 (5th Cir. Unit B 1981) cert. denied ,

455 U.S. 943 (1982) (scrap o f paper on which was written "Too

old -- Lay Off" would constitute direct evidence of discriminatory

intent).

25. Other than Petitioner's assertions that Respondent

discriminated against her, Petitioner presented no evidence

establishing that Respondent's reasons were pretextual.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 1st day of Novem ber, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 1st day of November , 2005.

ENDNOTES

1/ P etitioner attached documents to her post - hearing submission

which were not offered or admitted into evidence at hearing.

Accordingly, these documents, other than those introduced by

Respondent and admitted into evidence at hearing, are not part

of the rec ord and cannot be considered by the undersigned in

wr iting this Recommended Order. § .120.57(1)(f), Fla. Stat.

2/ FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760 .10, Florida Statutes. See Brand v.

Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

COPIES FURNISHED :

Linda Marchinko

30 Westmount Lane

Palm Coast, Florida 32164

Matthew S. Welch, Esquire

Rice & Rose

Post Office Box 2599

Daytona Beach , Florida 32115

Cecil Howard, General Counsel

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

Tall ahassee, 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

w ill issue the final order in this case.