09-003950 Rolf Bierman vs. Brunswick Boat Group Status: Closed Recommended Order on Tuesday, March 9, 2010.

Summary: Petitioner's claims that he was discriminated against based upon handicap and age were unfounded in the context of the business decision to lay off employees due to economic decline of the industry.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROLF BIERMAN, )

)

Petitioner, )

)

vs. ) Case No. 09-3950

)

BRUNSWICK BOAT GROUP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

before J. D. Parrish, a duly-designated Administrative Law Judge

of the Division of Administrative Hearings, on December 10,

2009, in Viera, Florida.

APPEARANCES

For Petitioner: Rolf Bierman, pro se

1035 Palmer Road

Rockledge, Florida 32955

For Respondent: Brian Koji, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 225

Tampa, Florida 33606-4127

Bona M. Kim, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

Whether Respondent committed the unlawful employment

practice alleged in the Employment Complaint of Discrimination

filed with the Florida Commission on Human Relations (FCHR) and,

if so, the appropriate relief for such action.

PRELIMINARY STATEMENT

On February 6, 2009, Rolf Bierman (Petitioner), filed an

Employment Complaint of Discrimination with the FCHR, alleging

that his former employer, Brunswick Boat Group (Respondent), had

discriminated against him based on his age and disability or

handicap. The complaint contained the following "discrimination

statement," and asserted that the "most recent discrimination

took place" on January 8, 2009:

I believe I was laid-off because of my age

(60) and because of my disabilities (heart

impairment and diabetes). I also believe

the Respondent regarded me as being

disabled. I began employment with

Respondent in July 2007 and worked as

Engineering Supervisor. I made the

Respondent aware of my heart transplant at

the hiring interview. From November 2007 to

December 2008, I spent three days per month

in the hospital for blood transfusions,

after undergoing a heart transplant. During

my employment, I had several fainting and

low blood sugar episodes which were recorded

by the plant nurse. My medical bills were

approximately $500,000 and I believe part of

the reason for my termination was that

Respondent wanted to avoid paying unusually

high medical costs. In the last year,

Respondent has laid-off an excessive number

of employees that were over 50 years old and

retained young lower paid workers. On

January 8, 2009, I was informed that I was

being laid-off because my position was being

eliminated.

On July 1, 2009, the FCHR issued a Notice of Determination:

No Cause, advising the Petitioner that a determination had been

made that "no reasonable cause exists to believe that an

unlawful employment practice occurred." Thereafter, on or about

July 13, 2009, the Petitioner filed a Petition for Relief. The

case was forwarded to the Division of Administrative Hearings

(DOAH) for formal proceedings on July 23, 2009.

At the hearing, the Petitioner testified in his own behalf

and presented testimony from Kevin Shaw, an engineering manager

for the Respondent at its Sykes Creek facility; Patricia

Shoemaker, the human resources manager for Respondent's Sykes

Creek facility; Richard Pettit, an engineering tech employed by

the Respondent; and Steve Fielder, general manager of the Sykes

Creek facility. The Petitioner's Exhibits 3, 4, 5, 6, and 9

have been admitted into evidence. The Respondent's Exhibits 1-5

and 20 were also received in evidence.

The Transcript of the proceeding was filed with DOAH on

December 29, 2009. In accordance with the directions of the

undersigned at the conclusion of the hearing, the parties'

proposed recommended orders were to be filed within ten days of

the filing of the transcript. Both parties timely filed

Proposed Recommended Orders that have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. For purposes of this case, the Petitioner began his

employment with the Respondent in July of 2007. Although the

Petitioner had worked for the Respondent in prior years (at

another location), he had voluntarily left the company to pursue

other opportunities. When the Petitioner returned to employment

with the Respondent in connection with this case, it was ten

years after a heart transplant.

2. At the time of hiring, the Respondent knew the

Petitioner's medical condition and age. The Petitioner is

approximately 61 years of age.

3. The Respondent is a national corporation with several

sites for engineering and manufacture of its products. The

Respondent is an equal opportunity employer and maintains

policies prohibiting unlawful discrimination.

4. One of the Respondent's facilities, Sykes Creek, is

located in Brevard County, Florida. The Petitioner was hired to

work at the Sykes Creek facility in the role of engineering

supervisor.

5. The Sykes Creek site builds luxury power yachts ranging

from 50–to-60 feet in length. The price of these yachts runs

from approximately $900,000 to $2,000,000 each. Typically, the

yacht is ordered and customized to the buyer's specification.

6. The Petitioner was responsible for supervising and

directing work at Sykes Creek and reported to Kevin Shaw, his

immediate supervisor. Mr. Shaw in turn reported to the plant

manager, Steven Fielder. The Petitioner reviewed the work and

attendance of approximately 21 hourly employees.

7. When the Petitioner was hired (2007), the Sykes Creek

facility produced 116 yachts and employed approximately 575

people. Within the Petitioner's department (engineering) there

were 26 people; four others like Petitioner were salaried

employees.

8. The economic crunch that struck most of the nation

drastically reduced the Respondent's business. In 2008 the

Respondent instituted unpaid furloughs and layoffs due to the

lack of business. By 2009 the economic condition in the

industry had not improved. Accordingly, the Respondent had to

make additional cuts to its staff.

9. To that end, Mr. Fielder advised Mr. Shaw that the

Petitioner's department would have to be cut to reduce the

number of hourly employees and one salaried employee.

10. To determine who should be cut, the Respondent looked

to the number of years of service with the company and the skill

set/education they provided for the facility. The Petitioner

had the shortest length of service with the Respondent except

for an employee named Julie Halesma. That person was not chosen

for lay-off because she was a credentialed industrial engineer.

The Petitioner did not have those credentials.

11. The Petitioner was not offered a lower, hourly paid

position because he did not have the skill set to perform the

work as well as the hourly employees who were already doing the

jobs.

12. A number of employees were laid off the same day the

Petitioner was dismissed. The Petitioner's job position was

eliminated and has not, as of the date of hearing, been

restored.

13. The Respondent has continued to lay off workers. In

2009 the Sykes Creek facility was down to 175 employees. The

engineering department was down to 15 people. Absent a return

to more prosperous times, it is not expected that the facility

will be able to rehire employees. The job tasks that the

Petitioner performed are now shared by other employees at the

facility.

14. Throughout his time at the Sykes Creek facility, the

Petitioner was allowed to take time off as needed to attend to

medical issues. Based upon the frequency of the medical leave,

the Respondent knew or should have known that the Petitioner's

medical condition required monthly treatment. The extent of the

medical treatment, however, was unknown to the Respondent. As a

salaried employee the Petitioner did not have to "punch the

clock." The Respondent allowed the Petitioner to complete his

work as he might dictate so that he was free to leave the

facility to attend to his medical needs. Clearly, the

Respondent knew the Petitioner had had the heart transplant at

the time of hiring but that medical condition did not impede the

Petitioner's ability to perform his job assignments. The

medical situation required that he be absent, but there is no

indication that Petitioner could not perform his job.

15. The cost of the Petitioner's medical care was unknown

to the persons charged with making the lay-off decisions. The

cost of the Petitioner's medical care played no part in the

decision to eliminate the Petitioner's job.

16. Similarly, the Petitioner's age did not play a part of

the Respondent's decision to eliminate the Petitioner's job.

The Respondent articulated legitimate business reasons for

eliminating the Petitioner's job position. Clearly the

Respondent knew of the Petitioner's age at the time of hiring.

The Respondent did not replace the Petitioner with a younger

employee. The Respondent's explanation for whom it chose to

retain in employment was not based upon an employee's age but

rather legitimate business interests.

17. Episodes during which the Petitioner required medical

attention at the facility did not rise to a level to cause the

Respondent to be concerned for Petitioner's medical well-being.

Incidents of the Petitioner being light headed or with low blood

sugar did not cause the Respondent to seek to eliminate the

Petitioner's job position.

CONCLUSIONS OF LAW

18. DOAH has jurisdiction over the parties to, and the

Fla. Stat. (2009).

19. The Florida Civil Rights Act of 1992 (the Act) is

codified in Sections 760.01 through 760.11, Florida Statutes

(2009). "The Act, as amended, was [generally] patterned after

Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. §

2000, et seq. , as well as the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. § 623. Federal case law interpreting

[provisions of] Title VII and the ADEA is [therefore] applicable

to cases [involving counterpart provisions of] the Florida Act."

Florida State University v. Sondel , 685 So. 2d 923, 925 (Fla.

1st DCA 1996); see Joshua v. City of Gainesville , 768 So. 2d

432, 435 (Fla. 2000)("The [Act's] stated purpose and statutory

construction directive are modeled after Title VII of the Civil

Rights Act of 1964.").

20. The Act makes certain acts prohibited "unlawful

employment practices," including those described in Section

760.10, Florida Statutes (2009), which provides:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's race, color, religion,

sex, national origin, age, handicap, or

marital status.

(2) It is an unlawful employment practice

for an employment agency to fail or refuse

to refer for employment, or otherwise to

discriminate against, any individual because

of race, color, religion, sex, national

origin, age, handicap, or marital status or

to classify or refer for employment any

individual on the basis of race, color,

religion, sex, national origin, age,

handicap, or marital status.

(3) It is an unlawful employment practice

for a labor organization:

(a) To exclude or to expel from its

membership, or otherwise to discriminate

against, any individual because of race,

color, religion, sex, national origin, age,

handicap, or marital status.

(b) To limit, segregate, or classify its

membership or applicants for membership, or

to classify or fail or refuse to refer for

employment any individual, in any way which

would deprive or tend to deprive any

individual of employment opportunities, or

adversely affect any individual's status as

an employee or as an applicant for

employment, because of such individual's

race, color, religion, sex, national origin,

age, handicap, or marital status.

(c) To cause or attempt to cause an

employer to discriminate against an

individual in violation of this section.

(4) It is an unlawful employment practice

for any employer, labor organization, or

joint labor-management committee controlling

apprenticeship or other training or

retraining, including on-the-job training

programs, to discriminate against any

individual because of race, color, religion,

sex, national origin, age, handicap, or

marital status in admission to, or

employment in, any program established to

provide apprenticeship or other training.

(5) Whenever, in order to engage in a

profession, occupation, or trade, it is

required that a person receive a license,

certification, or other credential, become a

member or an associate of any club,

association, or other organization, or pass

any examination, it is an unlawful

employment practice for any person to

discriminate against any other person

seeking such license, certification, or

other credential, seeking to become a member

or associate of such club, association, or

other organization, or seeking to take or

pass such examination, because of such other

person's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(6) It is an unlawful employment practice

for an employer, labor organization,

employment agency, or joint labor-management

committee to print, or cause to be printed

or published, any notice or advertisement

relating to employment, membership,

classification, referral for employment, or

apprenticeship or other training, indicating

any preference, limitation, specification,

or discrimination, based on race, color,

religion, sex, national origin, age, absence

of handicap, or marital status.

(7) It is an unlawful employment practice

for an employer, an employment agency, a

joint labor-management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

(8) Notwithstanding any other provision of

this section, it is not an unlawful

employment practice under ss. 760.01 -

760.10 for an employer, employment agency,

labor organization, or joint labor-

management committee to:

(a) Take or fail to take any action on the

basis of religion, sex, national origin,

age, handicap, or marital status in those

certain instances in which religion, sex,

national origin, age, absence of a

particular handicap, or marital status is a

bona fide occupational qualification

reasonably necessary for the performance of

the particular employment to which such

action or inaction is related.

(b) Observe the terms of a bona fide

seniority system, a bona fide employee benefit

plan such as a retirement, pension, or

insurance plan, or a system which measures

earnings by quantity or quality of production,

which is not designed, intended, or used to

evade the purposes of ss. 760.01 - 760.10.

However, no such employee benefit plan or

system which measures earnings shall excuse

the failure to hire, and no such seniority

system, employee benefit plan, or system which

measures earnings shall excuse the involuntary

retirement of, any individual on the basis of

any factor not related to the ability of such

individual to perform the particular

employment for which such individual has

applied or in which such individual is

engaged. This subsection shall not be

construed to make unlawful the rejection or

termination of employment when the individual

applicant or employee has failed to meet bona

fide requirements for the job or position

sought or held or to require any changes in

any bona fide retirement or pension programs

or existing collective bargaining agreements

during the life of the contract, or for 2

years after October 1, 1981, whichever occurs

first, nor shall this act preclude such

physical and medical examinations of

applicants and employees as an employer may

require of applicants and employees to

determine fitness for the job or position

sought or held.

(c) Take or fail to take any action on the

basis of age, pursuant to law or regulation

governing any employment or training program

designed to benefit persons of a particular

age group.

(d) Take or fail to take any action on the

basis of marital status if that status is

prohibited under its anti-nepotism policy.

(9) This section shall not apply to any

religious corporation, association,

educational institution, or society which

conditions opportunities in the area of

employment or public accommodation to

members of that religious corporation,

association, educational institution, or

society or to persons who subscribe to its

tenets or beliefs. This section shall not

prohibit a religious corporation,

association, educational institution, or

society from giving preference in employment

to individuals of a particular religion to

perform work connected with the carrying on

by such corporations, associations,

educational institutions, or societies of

its various activities.

(10) Each employer, employment agency, and

labor organization shall post and keep

posted in conspicuous places upon its

premises a notice provided by the commission

setting forth such information as the

commission deems appropriate to effectuate

the purposes of ss. 760.01 - 760.10.

21. The Act gives the FCHR the authority to issue an order

prohibiting the practice and providing affirmative relief from

the effects of the practice, including back pay, if it finds

following an administrative hearing that an unlawful employment

practice has occurred. See § 760.11, Fla. Stat. (2009). To

obtain relief from the FCHR, a person who claims to have been

the victim of an "unlawful employment practice" must, "within

365 days of the alleged violation," file a complaint

("contain[ing] a short and plain statement of the facts

describing the violation and the relief sought") with the FCHR.

§ 760.11(1), Fla. Stat. (2009). It is concluded that the

Petitioner filed a complaint within the statutory time

limitation.

22. The Petitioner’s complaint alleged that he was

subjected to discrimination based upon his handicap or age in

that the Respondent terminated his employment. As each claim

stands alone as a basis for discriminatory conduct, each claim

is addressed individually.

23. For purposes of a claim of discrimination based upon

handicap, Florida courts have recognized that actions under the

Florida Civil Rights Act are analyzed under the same framework

as the Americans with Disabilities Act found at 42 U.S.C.

§§ 12101, et seq . (ADA). See Chanda v. Engelhard/ICC, f.k.a.

Ciba-Geigy , 234 F.3d 1219 (11th Cir. 2000). Accordingly, the

Petitioner must establish that he is a qualified individual with

a disability. A disability is an impairment that substantially

limits a major life activity. Whether someone is substantially

limited requires that the individual be unable to perform a

major life activity that the average person in the general

population can perform or be significantly restricted as to the

condition, manner or duration under which the individual can

perform a particular major life activity as compared to the

manner in which the average person can perform the same major

life activity. Life activities are considered daily skills that

one performs to care for oneself. Major life activities

include, but are not limited to, dressing oneself, feeding

oneself, manual tasks such as combing one’s hair, walking,

speaking, seeing, hearing, breathing, learning, and working. A

diminished ability for normal daily activities such as lifting,

running, or performing manual tasks does not constitute a

disability under the ADA. See Chanda , supra .

24. It is concluded the Petitioner was not discriminated

against on the basis of handicap. The Petitioner did not have a

handicap that impaired his ability to perform his employment

tasks or any known life skill. Clearly, the Petitioner

performed his job tasks without the need for an accommodation.

Had the Petitioner needed an accommodation that the Respondent

refused to provide (facts not in evidence in this case), there

is no evidence that the Petitioner's condition left him unable

to attend to his daily life skills. See Toyota Motor

Manufacturing, Kentucky, Inc. v. Williams , 534 U.S. 184 (2002).

The need for medical leave alone (which was granted) does not

suggest the Petitioner did not perform his job adequately or

that he could have performed it better had the Respondent

afforded him some accommodation. The Petitioner was not

discharged because he took too much leave or failed to

adequately perform his job. The job position was eliminated

when the lay offs were instituted by the Respondent.

25. Next, as to a claim of discrimination based upon age,

the Petitioner failed to present any evidence that he was

discharged in favor of a younger person or that younger, less

qualified persons were retained over him. In fact, no one took

over the Petitioner's job position. The position was eliminated

and the tasks associated with it were distributed to others.

The Petitioner's age had no bearing in the decision.

26. Petitioner has the burden of proving the allegations

asserted. "Discriminatory intent may be established through

direct or indirect circumstantial evidence." Johnson v.

Hamrick , 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).

27. Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption. See Wilson v. B/E Aero., Inc. , 376

F.3d 1079, 1086 (11th Cir. 2004). In this case, the Petitioner

failed to prove discrimination either by direct or indirect

evidence.

28. Moreover, although victims of discrimination may be

"permitted to establish their cases through inferential and

circumstantial proof," the Petitioner similarly failed to

present credible inferential or circumstantial proof. See Kline

v. Tennessee Valley Authority , 128 F.3d 337, 348 (6th Cir.

1997).

29. Had the Petitioner established circumstantial evidence

of discrimination, the burden would have shifted to the

Respondent to articulate a legitimate, non-discriminatory reason

for its action. If the employer successfully articulates a

reason for its action, then the burden shifts back to the

complainant to establish that the proffered reason was a pretext

for the unlawful discrimination. See Malu v. City of

Gainesville , 270 Fed. Appx. 945; 2008 U.S. App. LEXIS 6775 (11th

Cir. 2008). In this case, the persuasive evidence established

that the Petitioner was laid off due to a legitimate business

decision and his position was eliminated. It had nothing to do

with the Petitioner's health (handicap or disability) or age.

30. In light of the foregoing, Respondent's employment

discrimination complaint must be dismissed.

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 no cause for an unlawful employment

practice as alleged by the Petitioner, and dismissing his

employment discrimination complaint.

DONE AND ENTERED this 9th day of March, 2009, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 9th day of March, 2009.

COPIES FURNISHED :

Rolf J. Bierman

1035 Palmer Road

Rockledge, Florida 32955

Brian W. Koji, Esquire

Bona M. Kim, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 225

Tampa, Florida 33606

Larry Kranert, 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

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 Recommended Order should be filed with the agency that

will issue the Final Order in this case.