14-002211 Piramiah Elayaperumal vs. Pall Corporation Status: Closed Recommended Order on Thursday, July 16, 2015.

Summary: Evidence did not show discrimination based on age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PIRAMIAH ELAYAPERUMAL,

Petitioner,

vs. Case No. 14 - 2211

PALL CORPORATION,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before the

Honorable Diane Cleavinger, Administrative Law Judge, Division

of Administrative Hearings, July 14 , 2014 , and March 26, 2015,

in Pensacola, Florida .

APPEARANCES

For Petitioner: Piramiah Elayaperumal

2531 Eagle Trace Lane

Woodbury, Minnesota 55129

For Respondent: Colin A. Thakkar, Esquire

Jackson Lewis, P.C.

Suite 902

501 Riverside Avenue

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Respondent

committed an unlawful employment practice against Petitioner in

violation of the Florida Civil Rights Act.

PRELIMINARY STATEMENT

On October 23, 2013, Petitioner filed a Complaint of

Employment Discrimination against Respondent, Pall Corporation

(Respondent or Pall Corporation), with the Florida Commission

on Human Relation s (FCHR). The Complaint alleged that

Respondent discriminated against Petitioner on the basis of

age, when Respondent terminated him as an employee.

FCHR investigated the Complaint. On April 14, 2014, it

issued a Notice of Determination finding no cause to believe

that an unlawful employment practice h ad occurred based on age

discrimination. The notice also advised Petitioner of his

right to file a Petition for Relief.

On May 14, 2014, Petitioner filed a Petition for Relief

with FCHR. Thereafter, the Petition for Relief was forwarded

to the Division o f Administrative Hearings (DOAH) for formal

hearing.

At the hearing, Petiti oner presented the testimony of two

witnesses and offered PetitionerÓs Exhibits 1 and 2 into

evidence of which only Exhibit 1 was admitted. 1 / Respondent

presented the testimony of two witnesses and admitted

RespondentÓs Exhibits 8 - 12 and 27 - 33 into evidence .

After the hearing , Respondent filed a Proposed Recommended

Order on May 12, 2015. Petitioner filed a Proposed Recommended

Order on April 30, 2015.

FINDING S OF FACT

1. Respondent , Pall Corporation, is a company involved in

the high - tech filtration, separation , and purification

industry, developing products for various businesses and other

organizations, including manufacturers, hospitals,

laboratories, airlines, and municipal water suppliers.

2. Pall is headquartered in Port Washington, New York,

with satelli te offices throughout the United State s, including

Pensacola, Florida. The Pensacola office is home of the Pall

Membrane Tec hnology Center which specializes in the creation of

microfiltration products. Microfiltration involves the use of

a porous membran e to separate bacteria and other particles from

water.

3. Petitioner Piramiah Elayaperumal was born in 1952 and

at the time of the hearing was 62 years old.

4. On February 18, 2008, Petitioner was hired by

Respondent to work at its Pensacola location a s the Membrane

Research and Development ( Membrane R&D ) GroupÓs Principal

Scientist. PetitionerÓs supervisor at the commencement of his

employment was Dr. Rick Morris . Later in 2008, Dr. M orris was

promoted to Senior Vice President of Global Media Product

Development, with indirect managerial author ity over the

Membrane R&D Group. As such, Wilf Wixwat became PetitionerÓs

immediate supervisor.

5. Under Mr. Wixwat , Petitioner exhibited serious and

repeated difficulties interacting with his colleagues in the

M embrane R&D G roup. He often created unnecessary conflicts

with colleagues, demonstrated substantial difficulty in

communicating with colleagues, and often misinterpreted remarks

from his colleagues and instructions from Mr. Wixwat.

Petitioner als o often refused to follow managerial instruction

that did not mirror his own judgement and believed such

instructions reflected managementÓs ignorance of the subject

matter.

6. Around late August 2009, Mr. Wixwat completed a

Performance Appraisal of PetitionerÓs work during August 1,

2008, thro ugh and including July 31, 2009. Mr. Wixwat noted

that Petitioner was technical ly proficient in the subject

matter of his work. However, he also noted that Petitioner

needed to focus on improving his condu ct within the work group.

7 . Unfortunately, PetitionerÓs interpersonal skills did

not improve. As a result, Mr. Wixwat, on September 15, 2009,

issue d Petitioner a Performance Improvement Plan ( PIP ),

formally documenting PetitionerÓs defi ciencies and p roviding a

detailed fram ework for Petitioner to make necessary

corrections. Specifically, the PIP called for significant

improvements to be made in the following performance

categories: ÐTeamwork,Ñ ÐInterpersonal Skills,Ñ ÐFollowing

Direction,Ñ ÐComplet ing Assignments Timely,Ñ ÐUsing T ime

E ffectively,Ñ and ÐCommunication (listening & comprehension).Ñ

Additionally, because of PetitionerÓs poor interpersonal

skills, Mr. Wixwat reasonably did not feel he could send

Petitioner to scientific meetings.

8 . On June 28, 2010, Pall transferred Petitioner to the

Membrane R&D GroupÓs Vir us Team. The Virus Team focused on the

development of membranes capable of separating specific viruses

from water.

9 . Following the transfer , Stanley Kidd, manager of the

Virus Team , became PetitionerÓs direct supervisor .

Approximately three years later, on February 4, 2013, Pall

promoted Mr. Kidd to the newly - created position of Director,

Membrane Development, and appointed, as head of the Virus Team,

the TeamÓs current Princ ipal Engineer, Munif Tinwala.

Consequently, Petitioner and the Virus TeamÓs other non -

managerial personnel reported directly to Mr. Tinwala, and

Mr. Tinwala, in turn, reported directly to Mr. Kidd, who

reported directly to Dr. Morris.

1 0 . While part o f the Virus Group, Petitioner continued

to display the same performance deficiencies that plagued his

time with the M embrane R&D G roup. In PetitionerÓs 2011

performance appraisal, which reflected his Ðfirst full year in

the [Virus] Team[,]Ñ Mr. Kidd prais ed PetitionerÓs efforts to

correct past performance issues while stressing the need for

further improvements, particularly in the areas of

communication skills and teamwork. Mr. Kidd noted in the

performance appraisal:

Since virus media development was a new

area for Elaya as expected there was a

learning curve and it took Elaya a while to

get use[d] to the team oriented nature of

the Virus Team where all members of the

team are working on the same project and

also getting to understand PallÓs virus

media technology. By the later part of the

fiscal year there was marked improvement in

the quality of his experimental work and

h is interaction with th e rest of the team

also improve [d] . . . .

Elaya still has some work to do to become

fully integrated into the team. He needs

to work harder at fostering a better

working relationship with his fellow team

members. He also needs to improve his

communication skills both written and

spoken.

1 1 . Unfortu nately, PetitionerÓs working relationship and

interpersonal skills regressed over time. Petitioner again

exhibited markedly poor communication skills, frequently

clashed with his supervisors, ref used to accept instruction,

repeated ly attempted to circumve nt supervisory authority and

unilaterally change d the focu s of his assigned projects. Hi s

later performance appraisals continued to reflect PetitionerÓs

continued performance issues. Indeed, PetitionerÓs behavior

was severe enough to impede the Virus Tea mÓs efforts to

c omplete its assigned projects, was unacceptable in a team

member , and led to Petitioner being the least productive member

of the group. Additionally, because of his ongoing behavior,

Petitioner was not permitted to complete certain trainin g until

he complied more fully with the research requests of his

supervisors. Moreover, while Petitioner believed that he was

sabotaged in his efforts to produce work, t here was no

competent or substantial evidence that Petitioner was sabotaged

in his wor k . The better evidence demonstrated that

PetitionerÓ s inability to work wit h others and/or follow

directions he disagreed with caused his lack of productivity

and directly contributed to his low performance rating .

12 . In August 2013, members of PallÓs management team,

including Dr. Morris and Mr. Kidd, met to discuss the progress,

and anticipated profitability, of the Membrane R&D GroupÓs

projects. At that time, it was determined that the GroupÓs

nega tive return on investment (ROI ) was unsustainable, a nd that

the GroupÓs operational expenses would need to be reduced.

13 . As a result of the meeting, Dr. Morris and Mr. Kidd

were assigned to identify any unnecessary expenditures within

the Virus T eam. They determined that th e Virus Team could

maintain it s continuing operations with fewer scientific staff

since the team had recently completed one of its two primary

projects . Selection of staff for termination was to be based

on the performance rating of each team member and the unique

skills that such mem ber contributed to the team .

14 . Towards that end, Dr. Morris reviewed performance

assessment s for each member of the Virus T eam, to determine who

was least integral to the TeamÓs c ontinuing operation . The

employee evaluations demonstrated that Petitione r had the

lowest performance rating of the entire group. Further, his

skill set was not unique and his j ob could be easily and fully

absorbed by other team members. Based on his evaluation,

Dr. Morris selected Petitioner for layoff. There was no

evid ence that demonstrated the corporate management team Ó s

decision to reduce costs, Dr. MorrisÓ review , or the selection

of Petitioner for layoff was based on PetitionerÓs age, was

unreasonable , or a pretext for discrimination. Ultimately,

PetitionerÓs selection for layoff was approved by the corporate

management team to become effective September 16, 2013. As

such, Petitioner was laid off on that date. Again, t here was

no evidence that PallÓs reduction in force or PetitionerÓs

selection for that reduction was based on discrimination or was

a pretext for the same. Given these facts , the Petition for

R elief should be dismissed.

CONCLUSIONS OF LAW

1 5 . T he Division of Administrative Hearings has

jurisdiction over the parties t o and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2014).

1 6 . The Florida Civil Rights Act (FCRA) in section

760.10, Florida Statutes, states in pertinent part as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire an individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of

such individualÓs race, color, religion,

se x, national origin, age, handicap, or

marital status.

1 7 . The Florida Civil Rights Act was patterned after

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 200

et seq . As such, FCHR and Florida courts have determined

federal case law interpreting Title VII is applicable to cases

arising under FCRA. See Valenzuela v. GlobeGround N. Am., LLC ,

18 So. 3d 17 (Fla. 3d DCA 2009); Green v. Burger King Corp. ,

728 So. 2d 369, 37 0 Ï 371 (Fla. 3d DCA 1999); Fla. State Univ. v.

Sondel , 685 So. 2d 923 (Fla. 1 st DCA 1996); Brand v. Fla. Power

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

1 8 . Under FCRA, Petitioner has the burden to establish by

a preponderance of the evidence that he w as the subject of

discrimination by Respondent. In order to carry his burden of

proof, Petitioner can establish a case of discrimination

through direct or circumstantial evidence. See Holifield v.

Reno , 115 F.3d 1555, 1562 (11 th Cir. 1997 ).

19 . Direct evidence of discrimination is evidenc e that,

if believed, establishes the existence of discriminatory intent

behind an employment decision without inference or presumption.

Maynard v. Bd. o f Regents , 342 F.3d 1281, 1289 (11 th Cir.

2003 ) . Direct evidence is composed of Ðonly the most blatant

remarks, whose intent could be nothing other than to

discriminateÑ on the basis of some impermissible factor.

Evidence that only suggests discrimination, or that is subject

to more than one interpretation, is not dire ct evidence. See

Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11 th Cir. 1999),

and Carter v. Three Springs Residential Treatment , 132 F.3d

635, 6 42 (11 th Cir. 1998). Direct evidence is evidence that,

if believed, would prove the existence of discriminatory intent

without resort to inference or presumption and must in some way

relate to the adverse actions of the employer. Denney v. City

of Albany , 247 F.3 d 1172, 1183 (11 th Cir. 2001); see Jones v.

BE&K EngÓg, Inc. , 146 Fed. Appx. 356, 358 - 359 (11 th Cir. 2005)

(ÐIn order to constitute direct evidence, the evidence must

directly relate in time and subject to the adverse employment

action at issue.Ñ); see als o Standard v. A.B.E.L. Servs., Inc. ,

161 F.3d 1318 (11 th Cir. 1998 ) (concluding that the statement

ÐweÓll burn his black a**Ñ was not direct evidence where it was

made two - and - a - half years prior to the employeeÓs termination).

2 0 . Herein, Petitioner presented no direct evidence of

discriminatory intent on the part of the Respondent.

Therefore, Petitioner must establish h is case through

inferential and circumstantial proof. Walker v. Prudential

Prop. & Cas. Ins. Co. , 286 F.3d 1270, 1274 (11 th Cir. 20 02);

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

Shealy v. City of Albany , 89 F.3d 804, 806 (11 th Cir. 1996) .

2 1 . Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the shifting

burden anal ysis established by the United States Supreme Court

in McDonnell Douglas v. Green , 411 U.S. 792 (1973), and Texas

Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), is applied. Under this well - established model of

proof, the complainant bears the initial burden of establishing

a prima facie case of discrimination. When the charging party,

i.e., Petitioner, is able to make out a prima facie case, the

burden to go for ward with the evidence shifts to the employer

to articulate a legitimate, non - discriminatory explanation for

the employment action. See DepÓt of Corr. v. Chandler , 582 So.

2d 1183 (Fla. 1 st DCA 1991). Importantly, the employer has the

burden of productio n, not persuasion, and need only present the

finder of fact with evidence that the decision was non -

discriminatory. Id. See also Alexander v. Fulton Cnty. , 207

F.3d 1303 (11 th Cir. 2000). The employee must then come

forward with specific evidence demonst rating that the reasons

given by the employer are pretexts for discrimination.

Schoenfeld v. Babbitt , supra at 1267. The employee must

satisfy this burden by showing 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. DepÓt of Corr. v. Chandler , supra at

1186; Alexander v. Fulton Cnty. , supra .

2 2 . Notably, Ðalthough the intermediate burdens of

production shift back and forth, th e ultimate burden of

persuading the trier of fact that the employer intentionally

discriminated against the [Petitioner] remains at all times

with the [Petitioner].Ñ EEOC v. JoeÓs Stone Crabs, Inc. , 296

F.3d 1265, 1273 (11 th Cir. 2002); see also Byrd v. B T Foods .,

Inc. , 948 So. 2 d 921, 927 (Fla. 4 th DCA 2007) (ÐThe ultimate

burden of proving intentional discrimination against the

plaintiff remains with the plaintiff at all times.Ñ). Reeves

v. Sanderson Plumbing Prods, Inc. , 530 U.S. 133, 148 (2000).

2 3 . On the other hand, this proceeding was not halted

based on a summary judgement, but was fully tried before the

Division of Administrative Hearings. Where the administrative

law judge does not halt the proceedings for

Ðlack of a prima facie case and the a ction

has been fully tried, it is no longer

relevant whether the [Petitioner] actually

established a prima facie case. At that

point, the only relevant inquiry is the

ultimate, factual issue of intentional

discrimination . . . . [W]hether or not [the

Peti tioner] actually established a prima

facie case is relevant only in the sense

that a prima facie case constitutes some

circumstantial evidence of intentional

discrimination.Ñ

Green v. Sch. Bd. Of Hillsborough Cnty. , 25 F.3d 974, 978 (11 th

Cir. 1994) ; Beaver v. Rayonier, Inc. , 200 F.3d 723, 727 (11 th

Cir. 1999). See also U.S. Postal Serv. Bd. of Governors v.

Aikens , 460 U.S. 711, 713 - 715:

Because this case was fully tried on the

merits, it is surprising to find the

parties and the Court of Appeals stil l

addressing the question whether Aiken s made

out a prima facie case. We think that by

framing the issue in these terms, they have

unnecessarily evaded the ultimate question

of discrimination vel non . . . . [W] hen

the defendant fails to persuade the

dist rict court to dismiss the action for

lack of a prima facie case, and responds to

the plaintiffÓs proof by offering evidence

of the reason for the plaintiffÓs

rejection, the fact - finder must then decide

whether the rejection was discriminatory

within the me aning of Title VII. At this

stage, the McDonnell Î Burdine presumption

Ðdrops from the case,Ñ and Ðthe factual

inquiry proceeds to a new level of

specificity.Ñ (citations omitted).

2 4 . In this case, Petitioner alleged that Respondent

discriminated against him on the basis of age in violation of

the Florida Civil Rights Act .

25 . In order to establish a prima facie case of age

discrimination under FCRA, Petitioner must show: 1) that he

was subject to an adverse employment action; 2) that he was

qualified for the job at the time; and 3 ) that the adverse

action took place in circumstances raising a reasonable

inference that age was a determining factor in the decision.

Gross v. FBL Fin. S ervs, Inc. , 557 U.S. 167 (2009); Mora v.

Jackson MemÓl Found., Inc. , 597 F.3d 1201 (11 th Cir. 2010).

See also Luna v. Walgreen Co. , 347 Fed. Appx. 469, 471 (11 th

Cir. 2009); Nadler v. Harvey , No. 06 - 12692, 2007 U.S. App.

LEXIS 20272, at *17 (11 th Cir. 2007).

2 6 . In this case, while Petitioner was a member of a

protected class (over 40) and suffered an adverse employment

action (termination), Petitioner presented no evidence that he

was treated differently than other employees outside his age

group who did not meet RespondentÓs expectations or that his

age of 62 had any impact on his termination by Respondent.

2 7 . Notably, Petitioner did not dispute the evidence that

his performance ratings were the lowest in his team. Further,

Petitioner did not offer substantive or credible evidence to

indicate that his multiple supervisors critiqued his

performance under a more difficult standard than other

employees.

2 8 . More importantly, Respondent had a legitimate, non -

discriminatory reason for ending his employment. Respondent

determined that its Membrane R&D Group had an unacceptably low

return on invest ment, making cut s in the groupÓs operating

expenses necessary . In order to reduce those expenses

Respondent reasonably elected to reduce the number of

scientific personnel in the Virus Team based on the performance

rating and unique skills of such personnel. Petitioner was

selected for layoff based on the fact that he had the lowest

perform ance rating of any member of the Virus Team and his

skills could easily be absorbed by other team members . There

was no credible evidence that this decision was a pretext for

discrimi nation.

29 . As in other discrimination settings, once t he

employer has offered a legitimate, nondiscriminatory reason for

its action, the charging party must demonstrate Ðsuch

weaknesses, implausibilities, inconsistencies, incoherencies,

or contradicti ons in the employerÓs proffered legitimate

reasons for its action that a reasonable fact finder could find

[all of those reasons] unworthy of credence.Ñ See Standard v.

A.B.E.L. Servs, Inc. , 161 F. 3d 1318, 1333 (11 th Cir. 1998). In

evaluating the plausibility of the employerÓs explanation, Ðthe

relevant inquiry is not whether [the employerÓs] proffered

reasons were wise, fair, or correct, but whether [the employer]

honestly believed those reasons and acted in good faith upon

tho se beliefs. Ñ Stover v. Martinez , 382 F.3d 1064, 1076 (10 th

Cir. 20 0 4). See also Valenzuela , 18 So. 3d at 26 (ÐThe inquiry

into pretext centers upon the employerÓs beliefs, and not the

employeeÓs own perception of [her] performance.Ñ)

3 0 . As the court s aid in Chapman v. A I Transp . , 229 F.3d

1012, 0 030 (11 th Cir. 2000) (en banc):

A plaintiff is not allowed to recast an

employerÓs proffered nondiscriminatory

reasons or substitute his business

judgement for that of the employer.

Provided that the proffered reason is one

that might motivate a reasonable employer,

an employee must meet that reason head on

and rebut it, and the employee cannot

succeed by simply quarreling with the

wisdom of that reason.

3 1 . Moreover, absent evidence of intentional

discrimin ation, it is not the role of administrative agencies

or the courts to micro - manage internal business decisions. See

Elrod v. Sears, Roebuck & Co. , 939 F.2d 1466, 1470 (11 th Cir.

1991) (federal courts do not sit as Ðsuper - personnel

departmentÑ to reexamine an entityÓs business decisions); Nix

v. WLCY Radio/Rehall CommcÓns , 738 F.2d 1181, 1187 (11 th Cir.

1984) (Ð[t]he employer may fire an employee for a good reason,

a bad reason, a reason based on erroneous facts, or for no

reason at all, as long as its acti on is not for a

discriminatory reasonÑ) .

3 2 . In this case, Respondent was a poor team member ,

possessed skills which could easily be absorbed by the

remaining team members , and had the lowest performance rating .

As indicated, his selection for termination was reasonable and

unrelated to his age. Given these facts, Petitioner has failed

to establish that he was discriminated against on the basis of

age by Respondent. Therefore, the Petition for Relief should

be d ismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter an o rder dismissing the Petition for Relief.

DONE AND ENTERED this 1 6 th day of July , 2015, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

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 1 6 th day of July , 2015.

ENDNOTE

1/ Petitioner filed numerous documents referenced as ÐexhibitsÑ

in this matter, but did not offer those documents into evidence

during the hearing.

COPIES FURNISHED :

Colin A. Thakkar, Esquire

Jackson Lewis, P.C.

Suite 902

501 Riverside Avenue

Jacksonville, Florida 32202

(eServed)

Piramiah Elayaperumal

2531 Eagle Trace Lane

Woodbury, Minnesota 55129

(eServed)

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

Cheyanne Costill a , General Counsel

Florida Commission on Human Relations

4075 Esplan a de Way , Room 110

Tallahassee, Florida 32399

(eServed)

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.