08-004144 Joseph A. Zemba, Jr. vs. Phantom Fireworks Status: Closed Recommended Order on Tuesday, November 25, 2008.

Summary: Petitioner claimed, but failed to prove age discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH A. ZEMBA, JR., )

)

Petitioner, )

)

vs. ) Case No. 08-4144

)

PHANTOM FIREWORKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, on October 28, 2008, a final hearing

was conducted in this case before Jeff B. Clark, the duly-

designated Administrative Law Judge of the Division of

Administrative Hearings, in Viera, Florida.

APPEARANCES

For Petitioner: Joseph A. Zemba, Jr., pro se

39 Burlington Avenue

Rockledge, Florida 32955

For Respondent: Anthony Donofrio, Esquire

Qualified Representative

B.J. Alan Company

555 Martin Luther King, Jr. Boulevard

Youngstown, Ohio 44505

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner on the

basis of his age as stated in the Petition for Relief, in

violation of Subsection 760.10(1), Florida Statutes (2007).

PRELIMINARY STATEMENT

On August 13, 2008, Petitioner, Joseph A. Zemba, Jr., filed

a Petition for Relief from an Unlawful Employment Practice with

the Florida Commission on Human Relations (FCHR), alleging that

Respondent, Phantom Fireworks, B.J. Alan Company, discharged him

from employment "based on age."

On July 17, 2008, the FCHR had issued a Notice of

Determination: No Cause, regarding his claim. The Petition for

Relief was timely filed with the FCHR. On August 21, 2008, the

FCHR referred the matter to the Division of Administrative

Hearings for assignment of an Administrative Law Judge to

conduct a hearing on the allegations of employment

discrimination made by Petitioner. On the same day, August 21,

2008, an Initial Order was sent to both parties requesting

mutually convenient dates for a final hearing. Based on the

response of the parties, a final hearing was scheduled on

October 28, 2008, in Viera, Florida.

On September 22, 2008, Anthony Donofrio, Esquire, a member

of the State of Ohio Bar, sought qualification as a qualified

representative and to be allowed to represent Respondent by

telephone. The request to appear by telephone was granted by

Order dated October 9, 2008. Mr. Donofrio was accepted as a

qualified representative by Order dated September 24, 2008.

The hearing was held on October 28, 2008, as scheduled.

Petitioner, Joseph A. Zemba, Jr., testified on his own behalf.

Respondent presented four witnesses: Joseph Mele, Kimberly

Knapp-Mele, Kathy Daley, and Ira Schwartz. The exhibits offered

by both parties were not accepted into evidence, because the

parties did not provide the other with copies as required by the

Pre-hearing Order; both parties objected on this basis.

No transcript of the hearing was ordered. Both parties

timely submitted Proposed Recommended Orders.

All references are to Florida Statutes (2007), unless

otherwise noted.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing, the following facts were established by clear and

convincing evidence:

1. Respondent, Phantom Fireworks, is a retailer and

wholesaler of consumer fireworks and employs more than 15

persons.

2. Petitioner, Joseph A. Zemba, Jr., was hired as an

assistant manager at the Cocoa, Florida, location on March 21,

2007. At the time he was hired, he was 57 years old and the

oldest of four applicants for the position.

3. On or about August 16, 2007, Petitioner was discharged

from his employment with Phantom Fireworks by the Cocoa,

Florida, manager, Joseph Mele. Mr. Mele advised Petitioner that

he was discharged for violating company policy regarding the

unauthorized use of alcohol on company property or while on the

job.

4. Petitioner testified that he believes the discharge for

alcohol abuse was a "cover up" for the real reason that he was

discharged. Petitioner "believed" that he was discharged

because of his age.

5. Petitioner presented no direct or circumstantial

evidence that his discharge was based on age. He did not deny

his use of alcohol while on company premises and on company

time.

6. On July 1, 2007, after receiving customer complaints

regarding the smell of alcohol on Petitioner's person, Mr. Mele

counseled him about the smell of alcohol on his person and

raised the issue of the impropriety of drinking alcohol during

work hours. Prior to the customers approaching Mr. Mele, two

employees told him, independently and at different times, that

they observed the odor of alcohol on Petitioner's person.

Petitioner acknowledged having used alcohol during working hours

and indicated it would not happen again.

7. On August 2, 2007, Mr. Mele again received complaints

of Petitioner having the odor of alcohol on his breath. Based

on these complaints, Mr. Mele verbally counseled Petitioner a

second time regarding the use of alcohol while on company

premises and during company time. Petitioner again acknowledged

he was drinking and stated that he "had a beer for lunch" and

that it would not happen again.

8. Mr. Mele again verbally counseled Petitioner on

August 6, 2007. On August 3, 2007, Kathy Daley, a co-worker

whose testimony confirmed the incident, told Mr. Mele that when

she and Petitioner worked together on that day, Petitioner left

the showroom to do some banking, a task that usually takes ten

or 15 minutes. Petitioner, however, was gone for over one hour

before he returned. When he returned, Kat Daley smelled a

strong odor of alcohol on Petitioner's breath. She reported

this after Petitioner had left for the day.

9. Petitioner was next scheduled to work on August 6,

2007, at which time Mr. Mele counseled him for a third time

regarding complaints of the smell of alcohol on his person.

When questioned about his whereabouts, Petitioner told Mr. Mele

that he could not remember where he went.

10. Mr. Mele contacted his regional manager, Ira Schwartz,

on August 7, 2007, to discuss the alcohol issue regarding

Petitioner. Ira Schwartz advised Mr. Mele to contact Amy

Witzeman, director of Human Resources for Phantom Fireworks.

After considering the facts and consulting with the director of

Operations and General Counsel, a decision was made to terminate

Petitioner based on his abuse of alcohol.

11. Petitioner was terminated from the company, effective

August 16, 2007.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. § 120.57(1), Fla. Stat. (2008).

13. Subsection 760.10(1), Florida Statutes, in relevant

part, makes it an unlawful employment practice for Respondent to

discriminate against Petitioner because of Petitioner's age.

Chapter 760, Florida Statutes, entitled the Florida Civil Rights

Act, adopts the legal principles and judicial precedent set

forth under Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. Section 2000, et seq. ; King v. Auto, Truck,

Indus. Parts and Supply, Inc. , 21 F. Supp. 2d 1370 (N.D. Fla.

1998); Carlson v. WPLG/TV-10, Post-Newsweek Stations of Florida ,

956 F. Supp. 994 (S.D. Fla. 1996).

14. The United States Supreme Court has established an

analytical framework within which courts should examine claims

of discrimination, including claims of age discrimination. In

cases alleging discriminatory treatment, Petitioner has the

initial burden of establishing, by a preponderance of the

evidence, a prima facie case of discrimination. St. Mary's

Honor Center v. Hicks , 509 U.S. 502 (1993); Combs v. Plantation

Patterns , 106 F.3d 1519 (11th Cir. 1997).

15. Petitioner can establish a prima facie case of

discrimination in one of three ways: (1) by producing direct

evidence of discriminatory intent; (2) by circumstantial

evidence under the McDonnell Douglas framework; or (3) by

establishing statistical proof of a pattern of discriminatory

conduct. Carter v. City of Miami , 870 F.2d 578 (11th Cir.

1989). If Petitioner cannot establish all of the elements

necessary to prove a prima facie case, Respondent is entitled to

entry of judgment in its favor. Earley v. Champion

International Corp. , 907 F.2d 1077 (11th Cir. 1990).

16. To establish a prima facie case of discrimination,

Petitioner must show: that he is a member of a protected class;

that he suffered an adverse employment action; that he received

disparate treatment from other similarly situated individuals in

a non-protected class; and that there is sufficient evidence of

bias to infer a causal connection between his age and the

disparate treatment. Andrade v. Morse Operations, Inc. , 946

F.Supp. 979 (M.D. Fla. 1996).

17. Petitioner made a prima facie showing that due to his

age, he is a member of a protected class and that he suffered an

adverse employment action--he was discharged. However,

Petitioner failed to make a prima facie showing that he received

dissimilar treatment from individuals in a non-protected class

or that there was any bias against Petitioner. Even if evidence

of bias did exist, it was insufficient to infer a causal

connection between Petitioner's age and the alleged disparate

treatment.

18. Petitioner's case is predicated on his statement that

he believed he was fired because of his age and that his alleged

alcohol abuse was a "cover-up." This was affirmatively denied

by his immediate supervisor and reports of Petitioner's use of

alcohol confirm that Petitioner's consumption of alcohol during

working hours was a recurring problem. Other than his testimony

regarding his "belief," Petitioner offered no other evidence,

direct, circumstantial, or statistical of the alleged

discrimination.

19. If Petitioner had satisfied his burden of establishing

a prima facie case of discrimination, an inference would have

arisen that the adverse employment action was motivated by a

discriminatory intent. Texas Department of Community Affairs v.

Burdine , 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973). The burden would have then shifted to

Respondent to articulate a legitimate, non-discriminatory reason

for its action. Id.

20. Respondent articulated a legitimate, non-

discriminatory reason for its action. Respondent demonstrated

that Petitioner's abuse of alcohol was the reason for his

discharge.

21. Once Respondent successfully articulates a non-

discriminatory reason for its action, the burden shifts back to

Petitioner to show that the proffered reason is a pretext for

unlawful discrimination. Petitioner must provide sufficient

evidence to allow a reasonable fact-finder to conclude that the

proffered reason is not the actual motivation for the adverse

employment action. Standard v. A.B.E.L. Services, Inc. , 161

F.3d 1318 (11th Cir. 1998).

22. Petitioner may show that Respondent's articulated

reason is a pretext by showing that the non-discriminatory

reason should not be believed; or by showing that, in light of

all the evidence, discriminatory reasons more likely motivated

the decision than the proffered reason. Id. Petitioner did

neither. Petitioner failed to present any evidence showing that

Respondent either should not be believed or that discriminatory

reasons, rather than the proffered reason, more likely motivated

the adverse employment action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order finding that Respondent, Phantom Fireworks,

did not discriminate against Petitioner, Joseph A. Zemba, Jr.,

and dismissing the Petition for Relief.

DONE AND ENTERED this 25th day of November, 2008, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of November, 2008.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Anthony Donofrio, Esquire

B.J. Alan Company

555 Martin Luther King, Jr. Boulevard

Youngstown, Ohio 44505

Joseph A. Zemba, Jr.

39 Burlington Avenue

Rockledge, Florida 32955

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.