17-002417 Adalberto Lopez vs. Insync Staffing, Inc. Status: Closed Recommended Order on Thursday, October 26, 2017.

Summary: The evidence failed to show that Respondent (a staffing agency) unlawfully discriminated against Petitioner on the basis of age when Petitioner was terminated from his position with Respondent's client.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADALBERTO LOPEZ,

Petitioner,

vs. Case No. 17 - 2417

INSYNC STAFFING, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDE R

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

July 28 , 20 17 , at sites in Tallahassee and West Palm Beach,

Florida , with Respondent's qualified representative appearing by

telephone fr om Orange County, California .

APPEARANCES

For Petitioner: Adalberto Lopez, pro se

3 Puerto Sol

Fort Pierce, Florida 34951

For Respondent: Charles A. Swartz, Esquire

Cornman & Swartz

Suite 250

26 Corporate Plaza Drive

Newport Beach, California 92660

STATEMENT OF THE ISSUE

The issue in this case is whether , on the basis of

Petitioner's age, Respondent (a staffing agency) unlawfully

discriminated against Petitioner by having him terminated from

his position with Respo ndent's client, in violation of the

Florida Civil Rights Act.

PRELIMINARY STATEMENT

In an Employment Charge of Discrimination filed with the

Florida Commission on Human Relations ("FCHR") on August 11 ,

2016 , Petitioner Adalberto Lopez alleged that Respondent inSync

Staffing, Inc. , an employment agency, had engaged in unlawful

discrimination because of age by terminati n g his assignment with

NBTY, Inc. , a client of Respondent's.

The FCHR investigated M r . Lopez's claim , and, on March 16 ,

2017, issued a Determination stating that no reasonable cause

exist ed to believe that a n unlawful practice had occurred.

Thereafter, Mr . Lopez filed a Petition for Relief, which the

FCHR transmitted to the Division of Administrative Hearings

("DOAH") on April 2 0 , 201 7.

The final hearing took place on July 28 , 2017. Mr . Lopez ,

who was self - represented, testified on h is own behalf and

submitted Petitioner's Exhibit 7 , which w as received into

evidence. In its case, Respondent called an employee named

Christina Raimondo as a witness. Re spondent's Exhibits 1

through 29 were admitted into evidence as well.

On September 28, 2017, Mr. Lopez filed with DOAH a copy of

what purports to be a letter from Wendy M. Fiel, an in - house

attorney for NBTY, Inc., dated Septembe r 7, 2017 . In this

letter, Ms. Fiel makes two assertions of material fact that are

in direct conflict with evidence presented at the final hearing

of this matter , namely : (1) "At all relevant times, you [Lopez]

were an employee of InSync, not NBTY." (2) "NBTY had no role in

InSync's decision to terminate your employment." On October 4,

2017, Respondent filed an Objection to Late Submitted Material .

Even if the untimely submitted (and unauthenticated) exhibit

were received in evidence, it could not support a ny finding s of

fact because (i) Ms. Fiel's out - of - court statements clearly

constitute hearsay which neither supplement s n or explain s (and

actually contradicts) other substantial competent evidence , and

(ii) the letter is not admissible under a recognized exception

to the hearsay rule. See § 120.57(1)(c), Fla. Stat.

Accordingly, the undersigned sustains Respondent's objection and

excludes the Fiel letter from consideration by the fact - finder.

The final hearing transcript was filed on October 3 , 2017.

Each party timely filed a p roposed r ecommended o rder on or

before the deadline, which was October 13 , 2017.

Unless otherwise indicated, citations to the official

statute law of the s tate of Florid a refer to Florida Statutes

2017 .

FINDINGS OF FACT

1. Respondent inSync Staffing, Inc. ("inSync"), is a

company that recruits for, and supplies employees to, its

clients, including, as relevant here, NBTY, Inc. ("NBTY").

inSync is an "employment agency" as that term is used in the

Florida Civil Rights Act of 1992 ("FCRA"). See ¶ 13 , infra .

inSync does not meet face - to - face with most of the candidates it

places with clients.

2. On or around August 19, 2015, a recruiter at inSync

forwarded the résumé of Petitioner Adalberto Lopez ("Lopez") ,

th en 75 years old , to NBTY in hopes that NBTY might hire Lopez

to fill the position of "QA Floor Inspector Î Shift 1," a job

that paid $13.50 per hour. About a week later, NBTY interviewed

Lopez, and , on September 2, 2015, inSync informed Lopez that

NBTY wa s offering him the job. Lopez accepted the offer.

3. NBTY, not inSync, made the decision to hire Lopez. At

all times, inSync acted essentially as a go - between , introducing

Lopez to NBTY and helping him apply for the job, informing Lopez

of NBTY's training and drug test requirements for new employees ,

and providing him with documents that NBTY wanted completed and

returned in the ordinary course of new - hire onboarding.

4. One of the documents that Lopez was required to

sign and submit was the Emp loyment Eligibility Verification

(Form I - 9) , which is used by the U.S. Department of Homeland

Security, administrator of the federal E - Verify program, to

determine whether an employee is authorized to work in the

United States. The E - Verify program provid ed NBTY with a result

of Tentative Nonconfirmation ("TNC") , meaning that there was, at

a minimum, some discrepancy between the information provided in

Lopez's Form I - 9 and that available in other public records. A

TNC does not necessarily disqualify an employee from continuing

to work , but it does need to be resolved to avoid the

possibility of termination. In this instance, there is no

persuasive evidence that the TNC led NBTY to take any adverse

action against Lopez. There is, moreover, no evidence that

inSync took any adverse action against Lopez as a result of the

TNC.

5. Lopez's first day of work at NBTY was September 14,

2015. The next day, NBTY terminated Lopez's employment .

Nevertheless, Lopez showed up fo r work on September 16 and was

told, again, that he no longer had a job. There is no

persuasive evidence that inSync played any role in NBTY's

decision to fire Lopez. inSync did, however, communicate this

decision to Lopez , telling him that he had "been terminated due

to not catching on fast enough . " This was the reason for the

termination given to inSync by NBTY. There is no persuasive

evidence that this was not, in fact, NBTY's reason for firing

Lopez.

6. There is no persuasive evidence that NBTY eliminated

Lopez's job , but there is, likewise, no evidence that NBTY

filled the vacant position after Lopez's termination , nor (it

obviously follows) any proof regarding the age of Lopez's

successor (assuming NBTY hired someone to replace Lopez). There

i s no evidence concerning the candidates, if any, that inSync

referred to NBTY after Lopez had been fired.

Ultimate Factual Determinations

7 . There is no persuasive evidence that any of inSync's

decisions concerning, or actions affecting, Lopez , directly or

indirectly, were motivated in any way by age - based

discriminatory animus. Indeed, there is no competent,

persuasive evidence in the record, direct or circumstantial,

upon which a finding of unlawful age discrimination could be

made.

8. Ultimately, the refore, it is determined that inSync did

not discriminate unlawfully against Lopez on the basis of h is

age.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 120.569 and 120.57(1), Florida Statutes.

10 . As stated in City of Hollywood v. Hogan , 986 So. 2d

634, 641 (Fla. 4th DCA 2008) :

The Florida Civil Rights Act of 1992 (FCRA)

prohibits age discrimination in the

workplace. See § 760.10(1)(a), Fla.

Stat. (2007 ). It follows federal law, which

prohibits age discrimination through the Age

Discrimination in Employment Act (ADEA).

29 U.S.C. § 623. Federal case law

interpreting Title VII and the ADEA applies

to cases arising under the FCRA. Brown

Distrib. Co. of W. Palm Beach v.

Marcell , 890 So. 2d 1227, 1230 n.1

(Fla. 4th DCA 2005).

11 . Section 760.10(1)(a), Florida Statutes, provides that

it is an unlawful employment practice for an employer :

To discharge or to fail or refuse to hire

any individual, or otherwi se to discriminate

against any individual with respect to

compensation, terms, conditions, or

privileges of employment, because of such

individual's race, color, religion, sex,

pregnancy, national origin, age, handicap,

or marital status.

12 . Section 760.10(2) provides that it is an unlawful

employment practice for an employment agency :

[T] o fail or refuse to refer for employment,

or otherwise to discriminate against, any

individual because of race, color, religion,

sex, pregnancy, national origin, age,

handicap, or marital status or to classify

or refer for employment any individual on

the basis of race, color, religion, sex,

pregnancy, national origin, age, handicap,

or marital status.

13 . The term "'[e]mployment agency' means any person

regularly undertaking, with or without compensation, to procure

employees for an employer or to procure for employees

opportunities to work for an employer, and includes an agent of

such a person." As found above, inSync is an employment agency

as that te rm is defined in the FCRA.

14 . Lopez's theory of the case is that his discharge was

the result of unlawful age discrimination, not any failure or

refusal to refer him for employment. It is undisputed,

moreover, that inSync referred Lopez to NBTY for empl oyment.

The facts, therefore, rule out consideration of this case as a

matter of "refusal to refer" discrimination.

15 . As found above, the decision to discharge Lopez was

taken by NBTY, which was his employer. Because, as also found,

there is no persuasive evidence that inSync had any involvement

in that decision other than merely to communicate it to Lopez,

it is doubtful (to say the least) that inSync can be held

legally liable as an employment agency for "otherwise"

discriminating against Lopez . Rather than recommend a

disposition on that basis, however, the undersigned will examine

the facts as if inSync were a joint employer (which was n either

proved nor alleged ) or, alternatively, were potentially guilty,

as an employment agency, of discrimi nating against Lopez by some

action other than refusing to refer him for employment.

16 . In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 803 (1973), the U.S. Supreme Court articulated a scheme for

analyzing employment discrimination claims where, a s here, the

complainant relies upon circumstantial evidence of

discriminatory intent. Pursuant to this analysis, the

complainant has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Fail ure to establish a prima facie case of

discrimination ends the inquiry. If, however, the complainant

succeeds in making a prima facie case, then the burden shifts to

the accused employer to articulate a legitimate, non -

discriminatory reason for its compla ined - of conduct. If the

employer carries this burden, then the complainant must

establish that the proffered reason was not the true reason but

merely a pretext for discrimination. Id. ; St. Mary's Honor Ctr .

v. Hicks , 509 U.S. 502, 506 - 07 (1993).

17 . A prima facie case of age discrimination is made "by

proving: 1) the plaintiff is a member of a protected class,

i.e., at least forty years of age; 2) the plaintiff is otherwise

qualified for the positions sought; 3) the plaintiff was

rejected for the posit ion; 4) the position was filled by a

worker who was substantially younger than the plaintiff."

Hogan , 986 So. at 641; Miami - Dade Cnty. v. Eghbal , 54 So. 3d

525, 526 (Fla. 3d DCA 2011) ; see also , O'Connor v. Consol. Coin

Caterers Corp. , 517 U.S. 308, 313 (1996)("In the age -

discrimination context, . . . an inference [that the employment

decision was based on an illegal discriminatory criterion ]

cannot be drawn from the replacement of one worker with another

worker insignificantly younger .") . 1 /

18 . Lopez offered proof sufficient to establish the first,

second, and third elements of the prima facie case. With regard

to the fourth element, however, the evidence fails to show that

the position was filled by any person , of any age , or that

inSync referred only younger or "differently aged" candidates to

replace Lopez after NBTY terminated his employment . 2 /

19 . Lopez 's failure to make out a prima facie case of age

discrimination ended the inquiry. Because the burden never

shifted to inS ync to articulate a legitimate, non - discriminatory

reason for its conduct, it was not necessary to make any

findings of fact in this regard. Nevertheless, inSync gave such

a reason for its involvement in Lopez's discharge, namely that

NBTY (inSync's client) reported that it had terminated the

assignment "due to [Lopez's] not catching on fast enough," a

fact which inSync duly communicated to Lopez. The undersigned

found this explanation to be not pretextual.

RECOMMENDATION

Based on the foregoing Findings of F act and Conclusions of

Law, it is RECOMMENDED that the F lorida Commission on Human

Relations enter a final order finding i n S ync not liable for age

discrimination.

DONE AND ENTERED this 26th day of October , 2017 , in

Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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

F iled with the Clerk of the

Division of Administrative Hearings

this 26th day of October, 2017.

ENDNOTES

1 / Historically, the FCHR has taken the position that the

protected class, for purposes of age discrimination claims under

the FCRA, includes all living human beings, and that the

comparator's age need not be "substantially younger" to

establish a prima facie case, but merely "different." See,

e.g. , Manzaro v. Dep't of Child. & Fams. , FCHR Case No. 2004 -

22128, FCHR Order No. 05 - 123 (FCHR Nov. 3, 2005). The

undersigned frankly fails to see how a reasonable inference of

age discrimination could arise from, for example, evidence

establishing that an otherwise qualified 34 - year - old plaintiff

was rejected in favor of a 35 - year - old applicant. As it

happens, however, no need arises here to decide whether the

FCHR's version of the prima facie case is correct, becaus e

(i) Lopez is more than 40 years old; (ii) he presented no

evidence proving that the position was filled after his

departure, much less about the age of his successor (if there

were one); and (iii) there is no allegation or proof that inSync

referred only younger or "differently aged" candidates to

replace Lopez after NBTY fired him.

2 / Nor is there any allegation or evidence suggesting that this

is a "reduction in force" case involving the elimination of

Lopez's position, where the employer would have d ischarged Lopez

without intending to find a replacement for him. If this were

the case, which was not established, Lopez might have made a

prima facie showing of age discrimination by proving that after

his termination, others who were not members of the protected

class remained in similar positions. E.g. , Meinecke v. H & R

Block of Hous. , 66 F.3d 77, 83 (5th Cir. 1995).

COPIES FURNISHED :

Adalberto Lopez

3 Puerto Sol

Fort Pierce, Florida 34951

(eServed)

Charles A. Swartz , Esquire

Cornman & Swartz

Sui te 250

26 Corporate Plaza Drive

Newport Beach, California 92660

Tammy S . Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

Cheyanne M. Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade 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 ex ceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.