13-000091 Gabriel C. Gaudio vs. Aar Airlift Group Status: Closed Recommended Order on Friday, May 31, 2013.

Summary: Company artiucated a rational basis for Petitioner's termination, and Petitioner failed to establish discrimination based on age, disability or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GABRIEL C. GAUDIO , )

)

Petitioner , )

)

vs. ) Case No. 13 - 0091

)

AAR AIRLIFT GROUP , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

before J. D. Parrish, an Administrative Law Judge of the Division

of Administrative Hearings (DOAH) on March 13, 2013, in Viera,

Florida.

APPEARANCES

For Petitioner: Gabriel C. Gaudio, pro se

259 Aber nathy Circle , Southeast

Palm Bay, Florida 32787

For Respondent: Chelsie J. Flynn, Esquire

Ford and Harrison , LLP

Suite 1300

300 South Orange Avenue

Orlando, Florida 32 801

STATEMENT OF THE ISSUE S

Whether Respo ndent, AAR Airlift Group, Inc. (Respondent),

committed the unlawful employment practice as alleged in the

Petition for Relief filed with the Florida Commission on Human

Relations (FCHR) and, if so, what relief shou ld Petitioner,

Gabriel C. Gaudio (Petitioner), be granted.

PRELIMINARY STATEMENT

On May 31, 2012, Petitioner filed a Charge of Discrimination

with the FCHR claiming that his employer, Respondent, had

discriminated against him and that the cause was Petiti onerÓs

age, disability, and retaliation. The complaint alleged:

I am 51 years of age and I am disabled. I

have been denied training and disciplined

because of my age (51 years of age) and

disability. I have been denied reasonable

accommodation. I have been terminated in

retaliation for complaining about

discrimination.

I was hired by AAR Airlift Group on May 9,

2009 , as a Technical Publications Librarian.

I have had satisfactory performance. I have

been denied training while Ms. Rachel Grygier

(30s, not disabled), Technical Publications

Librarian, has been given training. During

March 2012, I asked Mr. Melvin Zahn (late

40s, not disabled), supervisor, for a

reasonable accommodation but was denied. On

April 13, 2012, I was placed on a performance

imp rovement plan by Mr. Zahn and Ms. Joanne

Paul (30s, not disabled), Human Resources

Compensation Manager. On April 25, 2012, my

security clearance was about to expire. I

then found out that I was not on the badge

renewal list. I complained to Mr. Zahn ab out

this and also complained about

discrimination. On May 9, 2012, I was

terminated by Ms. Paul and Mr. Steve Lane

(60s, not disabled), Manager. I was told

that I was being terminated for breaking

policy even though this is not true.

I believe I have be en discriminated against

because of my age (51 years of age) in

violation of the Age Discrimination in

Employment Act of 1967, and specifically

section 4(d) that prohibits retaliation. I

believe that I have been discriminated

against because of my disabil ity in violation

of the Americans with Disabilities Act of

1990, as amended, and specifically section

50(a) that prohibits retaliation.

On December 5, 2012, the FCHR issued a Determination: No

Cause and advised Petitioner that he was entitled to file a

Petition for Relief in accordance with s ection 760.11, Florida

Statutes (2012). Thereafter, Petitioner timely filed a Petition

for Relief. In summary, Petitioner claimed he had been harassed

and disadvantaged at the company due to his age, his disability ,

and in retaliation for complaints he raised against co - workers.

At the hearing, Petitioner testified on his own behalf and

offered Exhibits 1 through 3, 5, 6, and 8 through 15 that were

admitted into evidence. Respondent presented testimony from

Jo A nne Paul, Steve Lane, and Melvin Zahn.

A t ranscript of the proceeding was not filed. On April 19,

2013, Respondent filed an Unopposed Motion for Extension of Time

to File Proposed Recommended Order that was granted. The parties

were given until April 2 6, 2013, to file their proposed orders.

RespondentÓs Proposed Recommended Order was timely filed and

considered in the preparation of this Recommended O rder.

Petitioner did not file a proposed order.

FINDINGS OF FACT

1. Petitioner is a male over 50 y ears of age. On or about

May 9, 2009, a company located in North Carolina hired Petitioner

to work as a Technical Publications Clerk. Petitioner was over

40 years of age at the time of his employment. Prior to

March 2012, Petitioner relocated to Florid a to continue

employment with the company that then became known as AAR Airlift

Group, Inc.

2. Respondent does business in Melbourne, Brevard County,

Florida, and has over 15 employees, one of whom was Petitioner.

3. At all times material to this matter , Respondent

employed Steve Lane (Lane) and Melvin Zahn (Zahn) as supervisors

with the company.

4. At all times material to the allegations of this case,

Respondent had policies that prohibit discrimination on the basis

of age, disability, and any other r eason prohibited by law. Any

employee who believed discrimination had occurred was directed to

report to the local Human Resources Department or to the

Corporate Vice President of Human Resources.

5. RespondentÓs employees are considered Ðat will.Ñ

Re spondent reserves the right to involuntarily terminate any

employee for any reason or for no reason unless to do so would

violate law. Petitioner maintains he was terminated in

retaliation for a complaint he submitted because of his age, or

because of his disability. All of the actions complained of

occurred between March 2012 and June 2012 (when Petitioner was

terminated).

6. It is undisputed that PetitionerÓs age would establish

he is a member of a protected class.

7. It is undisputed that Petitione r was terminated after he

submitted a complaint against his co - workers.

8. Although Petitioner asserted he is disabled, Petitioner

presented no evidence to establish the nature of his disability

or that Respondent required him to perform tasks contrary to his

physical or mental limitations. There is no evidence that

Respondent failed to accommodate any claimed limitation

Petitioner might have had.

9. In April 2012 , Respondent issued a Performance

Improvement Plan (PIP) to Petitioner to outline areas of h is job

performance that needed improvement. It was anticipated that

Petitioner would address the areas of concern and make

improvement within 90 days. Upon receipt of the PIP Petitioner

filed a claim of hostile work environment with the companyÓs

human r esources office. More specifically, Petitioner claimed

two employees, Zahn , technical publications manager , and Rachel

Grygier (Grygier), a technical publications librarian , had

disparaged him regarding his age and disability.

10. To address Petitione rÓs complaint, Respondent initiated

an internal investigation of the claim. As part of the

investigation process , Respondent directed Petitioner not to

disclose or discuss the accusations of his claim with anyone.

11. Respondent sought to resolve the m atter without having

the allegations discussed among employees before individual

statements could be taken. Contrary to the directive, Petitioner

discussed his complaint against Zahn and Grygier with at least

one other employee. That employee (Barnett) e - mailed support for

Petitioner to JoAnne Paul (Paul) , Respondent Ós human resources

compliance manager .

12. When Paul confronted Petitioner as to whether he had

discussed his complaint with Barnett, Petitioner falsely denied

knowing Barnett.

13. Paul to ok PetitionerÓs failure to maintain

confidentiality regarding his complaint to Lane, RespondentÓs

director of quality assurance and internal evaluations .

Together , Paul and Lane decided to terminate Petitioner. The

basis for the termination was two - fold: the failure to follow a

directive not to discuss the complaint ; and the lack of

truthfulness when asked about knowing Barnett.

14. Petitioner maintains that his termination was in

retaliation for his complaint against Zahn and Grygier and that

the com pany wanted him out.

15. Petitioner presented no evidence that after his

termination he was replaced with a younger employee.

16. Even though Petitioner did not establish the nature of

his disability, Petitioner presented no evidence that he was

replaced by a non - disabled person or that his handicap caused

Respondent to terminate him. Further, Petitioner did not

establish that any area of concern noted in his PIP related to

his disability.

17. Neither Zahn or Grygier had anything to do with

PetitionerÓs termination.

18. Finally, Petitioner failed to present credible evidence

that filing a complaint against Zahn and Grygier was the genesis

for his termination. Petitioner was a long - time employee with

the company. He had started in North Carolina and mo ved to

Melbourne with the company. Had Respondent wanted to terminate

him for any reason it could have done so prior to the move or

after the move. PetitionerÓs claim that his complaint against

Zahn and Grygier caused the termination is not supported by the

weight of persuasive evidence.

CONCLUSIONS OF LAW

19. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 120.57(1) and 760.11,

Fla. Stat. (2012).

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

codified i n s ections 760.01 through 760.11, Florida Statutes

(2012). "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), 2 9 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."

Fla State Univ . v. Sondel , 685 So. 2d 923, 925 (Fla. 1st DCA

1996); see also Jo shua 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.").

21. The Act makes certain acts prohibited "unlawful

employment p ractices," including those described in

s ection 760.10, Florida Statutes (2011), 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 aga inst 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 applicant s 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 app licant 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 trad e, 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 discrim inate

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

r ace, 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

publis hed, 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 pe rson 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) No twithstanding 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 t he

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

n ecessary 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, a nd 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 f or 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 requirem ents 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 t he

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 antinepotism 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 corporatio n, 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

indi viduals 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.

22. 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 (2012 ). 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 v iolation

and the relief sought") with the FCHR . § 760.11(1), Fla. Stat.

(2012). It is concluded Petitioner filed a complaint within the

statutory time limitation.

23. Petitioner's complaint alleged that he was

discriminated against based upon his age, disability and in

retaliation against him for making a complaint against two co -

workers. Petitioner believes he was terminated because he

asserted his complaint and that the company wanted him out.

24. It is concluded Respondent did not discriminate a gainst

Petitioner based upon age or disability. Further, it is

concluded Respondent did not retaliate against Petitioner based

upon the complaint against Zahn and Grygier.

25. Petitioner has the burden of proving the allegations

asserted. "Discriminat ory intent may be established through

direct or indirect circumstantial evidence." Johnson v. Hamrick ,

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

26. "Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent with out resort to

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

F.3d 1079, 1086 (11th Cir. 2004)("Direct evidence is 'evidence,

that, if believed, proves [the] existence of [a] fact without

inference or presumption.'"). "If the [complainant] offers

direct evidence and the trier of fact accepts that evidence, then

the [complainant] has proven discrimination." Maynard v. Bd of

Regents , 342 F.3d 1281, 1289 (11th Cir. 2003). In this case, the

Petitioner failed to prove discrimination either by d irect or

indirect evidence.

27. Victims of discrimination may be "permitted to

establish their cases through inferential and circumstantial

proof." Petitioner similarly failed to present credible

inferential or circumstantial proof. See Kline v. Tenne ssee

Valley Auth . , 128 F.3d 337, 348 (6th Cir. 1997).

28. Had Petitioner established evidence of discrimination,

the burden would have shifted to Respondent to articulate a

legitimate, non - discriminatory reason for its action. Respondent

explained a rat ional basis for the companyÓs decision to

terminate Petitioner. When, as here, the employer 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 discrimin ation. See Malu v. City of

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

Cir. 2008). In this case, Petitioner failed to address whether

RespondentÓs explanation was a pretext for discrimination. In

light of the foregoing, Petitioner's employment discrimination

complaint must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the F lorida C ommission on H uman

R elations issue a final order finding no cause for an unlawful

em ployment practice as alleged by Petitioner, and dismissing his

employment discrimination complaint.

DONE AND ENTERED this 31st day of May , 2013 , in Tallahassee,

Leon County, Florida.

S

J. D. PARRISH

Administrative Law Jud ge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of May , 2013 .

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Gabriel Gaudio

259 Abernathy Circle , Southeast

Palm Bay, Florida 32909

Chelsie J. Flynn, E squire

Ford and Harrison, LLP

Suite 1300

300 South Orange Avenue

Orlando, Florida 32801

Michelle Wilson, Executive Director

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Cheyanne Costilla, Interim Gen eral Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

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.