19-003665 Richard Robertson vs. United States Specialty Sports Association, Inc. Status: Closed Recommended Order on Monday, December 9, 2019.

Summary: Petitioner failed to prove that Respondent discriminated against him based on his age. Further, Respondent presented legitimate, non-discriminatory reasons for its adverse employment decision.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD ROBERTSON ,

Petitioner ,

Case No. 19 - 3665

vs.

UNITED STATES SPECIALTY SPORTS

ASSOCIATION, INC. ,

Respondent .

/

RECOMMENDED ORDER

The final h earing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (201 9 ), 1/ on September 18, 2019 , by

video teleconference at sit es in Tallahassee and

Altamonte Springs, Florida.

APPEARANCES

For Petitioner: Richard Robertson, pro se

2703 Scarborough Court

Kissimmee , Florida 347 44

For Respondent: Jennifer K. Birmingham, Esquire

T he Birmingham Law Firm , P.A.

1353 Palmetto Avenue, Suite 100

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

Whether Petitioner , Richard Robertson , was subject to an

unlawful employment practice by Respondent , United S tates

Specialty Sports Association, Inc. , in violation of the Florida

Civil Rights Act.

PRELIMINARY STATEMENT

On May 29, 2019 , Petitioner filed an Employment Complaint of

Discrimination with the Florida Commission on Human Relations

(the “ Commission ” ) alle ging that Respondent, United States

Specialty Sports Association, Inc. (“USSSA”) , violated the

Florida Civil Rights Act ( “ FCRA ” ) by discriminati ng against him

based on his age .

On June 6, 2019 , the Commission notified Petitioner that no

reasonable cause ex isted to believe that USSSA had committed an

unlawful employment practice.

On or about July 8, 2019 , Petitioner filed a Petition for

Relief with the Commission alleging a discriminatory employment

practice. The Commission transmitted the Petition to the

D ivision of Administrative Hearings ( “ DOAH ” ) to conduct a

chapter 120 evidentiary hearing.

The final hearing was held on September 18, 201 9 . At the

final hearing, Petitioner testified on his own behalf.

Petitioner also presented the testimony of Randy Fis her and

Buddy Mesher. Petitioner ’ s Exhibits 1 through 6, 8, 9,

11 through 24, 27 through 35, 51, 53 through 59, and

69 through 73 were admitted into evidence. USSSA called

Donald DeDonatis and Charles Beckwell as its witness es . USSSA’s

Exhibits 1, 6, 7, 9, 10, and 11 were admitted into evidence.

A two - volume Transcript of the final hearing was filed with

DOAH on November 13, 2019 . At the close of the hearing, the

parties were advised of a ten - day time frame following DOAH’s

receipt of the hearing transc ript to file post - hearing

submittals. Petitioner filed a Proposed Recommended Order, which

w as duly considered in preparing this Recommended Order.

FINDING S OF FACT

1. USSSA is a Florida non - profit corporation that acts as a

governing body for a number o f amateur sporting events and

tournaments across the United States. USSSA currently oversees

softball (slow pitch and fast pitch), baseball, flag football,

lacrosse, taekwondo, and volleyball among others.

2. USSSA hired Petitioner in January 2007 to serve as its

National Umpire in Chief. In this role, Petitioner was tasked to

oversee USSSA’s umpire program and registrations. His

responsibilities included developing and training umpires to work

at USSSA organized events. He also interpreted, reviewe d, and

updated USSSA’s softball (slow pitch) rule book. In addition,

Petitioner supervised a number of USSSA sporting events and

tournaments, including the Men’s Major World Series (softball),

as well as acted as a liaison arranging for the use of softbal l

fields with Osceola County and Walt Disney World.

3 . By all accounts, over his ten years as Umpire in Chief,

Petitioner was a consistent and reliable worker with no marked

deficiencies fulfilling his job expectations. However, in the

fall of 2016 (as more fully addressed below) USSSA reassessed

whether it needed Petitioner as a full - time employee continuing

as its Umpire in Chief. In December 2016, USSSA relieved

Petitioner from his position. Thereafter, Petitioner remained on

USSSA’s payroll, pe rforming tasks as needed, until June 15, 2017,

when he received his last paycheck .

4. Petitioner initiated this action because he believes

that USSSA fired him based on his age. Petitioner was 65 years

old when USSSA terminated him in June 2017.

5 . Do nald DeDonatis testified on behalf of USSSA.

Mr. DeDonatis stated that he served as USSSA’s “CEO, COO, and

Chief. Mr. DeDonatis was also the person who terminated

Petitioner and hired Char les “Doc” Beckwell to assume his job

responsibilities.

6. Initially, Mr. DeDonatis described USSSA’s current

business operations. Mr. DeDonatis explained that, through 2016,

USSSA operated out of Kissimmee, Florida. In 2017, USSSA

relocated its corpo rate headquarters and primary sporting venue

to a facility situated in Brevard County. The move was spurred

by the conclusion of USSSA’s 15 - year contract for the use of

athletic fields in Osceola County and Walt Disney World.

7. Mr. DeDonatis relayed tha t USSSA anticipated that the

migration to Brevard County would allow it to expand into other

sporting events. Mr. DeDonatis represented that his plan has

proven the case. USSSA now organizes, oversees, and provides

officials for a number of sporting acti vities beyond softball and

baseball.

8. Mr. DeDonatis stated that USSSA signed its contract to

move to Brevard County in December 2016. USSSA completed the

transition in April 2017. In or der to move, USSSA obtained an

18 million dollar loan. With tha t loan, USSSA redesigned and

refurbished the Space Coast Stadium in Viera, Florida, to serve

as its home base. USSSA now has ready access to 15 ball fields

which accommodate sporting events and tournaments year round.

9. Mr. DeDonatis also testified re garding the reason he

terminated Petitioner. Mr. DeDonatis relayed that the relocation

of USSSA’s corporate offices offered him the opportunity to

reevaluate USSSA’s top personnel. Mr. DeDonatis asserted that

one of his decisions was to eliminate the pos ition of National

Umpire in Chief.

10. Mr. DeDonatis expressed that he notified Petitioner

about his future with USSSA (or lack thereof) beginning in

August 2016. Mr. DeDonatis insisted that he directly apprised

Petitioner that his job was “done” at th e end of December (2016) .

USSSA, however, did not provide Petitioner a termination letter

or any other written notification of its decision.

11. Mr. DeDonatis explained that he specifically decided to

terminate Petitioner’s job based on several unsatisf actory

developments that had arisen in Petitioner’s performance.

Initially, Mr. DeDonatis explained that a number of umpires had

raised significant issues regarding Petitioner’s management style

and lack of professionalism. For example, Mr. DeDonatis att ested

that he heard from several sources that Petitioner ran onto a

softball field during a game to confront an umpire about his

performance. In addition, Mr. DeDonatis was alarmed to hear that

on one occasion, Petitioner directed negative and sarcastic

c omments to several USSSA umpires in public. Mr. DeDonatis felt

that not only were these remarks unnecessarily degrading, but

they gave the impression to those within earshot that USSSA

umpires were not “up to snuff.”

12. Further, Mr. DeDonatis lamented the fact that

Petitioner did not take advantage of modern technology when

paper” method was not very efficient. Mr. DeDonatis found that

Petitioner’s spreadsheets were too antiquated to ef fectively

communicate schedules to the other USSSA umpires. Finally,

Mr. DeDonatis was disappointed that Petitioner had not expanded

the pool of umpires USSSA used for its conference tournaments.

He saw no development within the ranks, and Petitioner was not

supplementing his umpire roster with “fresh blood.”

13. At the final hearing, other than the technology issue,

Mr. DeDonatis conceded that he had no firsthand knowledge or

observations of Petitioner’s alleged shortcomings. Neither did

USSSA produce any contemporaneous written complaints or evidence

documenting Petitioner’s unacceptable conduct.

14. Despite elimi nating his position in December 2016,

however, Mr. DeDonatis informed Petitioner that USSSA would be

willing to keep him on, carrying out his current

responsibilities, until USSSA completed its move to Brevard

County. Mr. DeDonatis insisted that he had no personal problem

with Petitioner. Thereafter, USSSA continued to pay Petitioner,

at the same rate, over the next six months, including a $5,000

annual bonus. Petitioner received his last pay check from USSSA

on June 15, 2017.

15. To assume Petitioner’s Umpire in Chief duties,

Mr. DeDonatis selected Charles “Doc” Beckwell. Mr. DeDonatis

believed that Dr. Beckwell had earned a reputat ion as one of the

best field umpires for softball (slow pitch) over the past ten

years. Mr. DeDonatis asserted that Dr. Beckwell had developed a

great relationship with, and garnered much respect from, the

other USSSA umpires with whom he worked.

16. M r. DeDonatis appointed Dr. Beckwell to oversee USSSA’s

umpire program to include soft ball (slow pitch and fast pitch)

and baseball. Further, in anticipation of USSSA’s expansion into

other sports, Dr. Beckwell was to manage all umpire, referee, and

judge programs for all USSSA sponsored sporting events and

tournaments. Dr. Beck well would also handle all rule

interpretations and applications for a ll sports USSSA supported.

17 . Mr. DeDonatis further explained that USSSA did not hire

Dr. Beckwell to repla ce Petitioner as its National Umpire in

Chief. Dr. Beckwell did not become a USSSA employee. Instead,

he is an independent contract o r . USSSA pays Dr. Beckwell $30,000

a year for his services, which is less than half of the annual

salary that USSSA paid Petitioner. Mr. DeDonatis explained that

this arrangement fits within USSSA’s budget expectations and has

worked out “excellently.”

18. At the final hearing, Petitioner testified that he

began umpiring for USSSA in 1981. Petitioner recounted that,

ove r the next 35 years, he earned a reputation as the best in his

field. Petitioner insisted that his character was never

questioned during his time with USSSA. He was not aware of one

negative word regarding his performance. Petitioner considers

USSSA’s e xcuses for firing him a personal attack on his good name

and reputation.

19. Petitioner began his association with USSSA as a

softball umpire. He continued to actively officiate softball

games over the ensuing years, gaining greater local, state, and

n ational recognition and responsibilities. In 2005, USSSA hired

Petitioner as a part - time consultant and tournament director.

Thereafter, Petitioner moved to Florida to work directly for

USSSA’s corporate office. In 2007, USSSA promoted Petitioner to

its full - time National Umpire in Chief. Petitioner served as

USSSA’s Umpire in Ch ief until he was let go in June 2017. 2/ USSSA

paid Petitioner $68,000 a year.

20. As Umpire in Chief, Petitioner was in charge of all

USSSA umpires assigned to officiate softb all (slow pitch and fast

pitch) and baseball. He also served as the Director of the 15

USSSA Conference tournaments (softball) and represented USSSA at

approximately six other softball tournaments, which took place

every year all over the United States. Around 40 USSSA umpires

(the “cream of the crop”) worked directly under him. In

addition, over 12,000 men, women, and young adults were

registered as USSSA umpires across America.

21. Petitioner also prepared all umpire schedules for the

USSSA Conferenc e tournaments. Petitioner explained that every

April, he met with USSSA umpires to discuss upcoming events. He

then drafted the tournament travel schedules for the year.

Petitioner asserted that the scheduling system he developed

worked very well.

22 . Petitioner adamantly maintained that his working

relationship with other USSSA umpires never approached a “toxic

level” as USSSA claimed. Petitioner vigorously denied that he

ever screamed at or belittled umpires. Petitioner testified that

no umpire e ver complained to him regarding his professionalism or

lost confidence in his ability to manage them. Neither was

Petitioner aware of a single umpire who quit under his watch.

23. Petitioner stated that if disputes ever arose, he would

meet with the um pires off the field to resolve any issues.

Petitioner insisted that he never embarrassed an umpire during a

game.

24. Otherwise, Petitioner expressed that he met with his

team of umpires socially for meals and personal gatherings. Many

umpires have stayed at his home. At the final hearing,

Petitioner produced a number of e - mails, letters, and text

messages which supported his testimony that he was highly thought

of by the USSSA umpires.

25. Petitioner further disputed that he ever exposed USSSA

ump ires to unsafe work environments. Petitioner surmised that

any complaints Mr. DeDonatis may have heard concerned adequate

hydration during tournaments. Petitioner declared that he

regularly offered water, Gatorade, coffee, and food to umpires.

Further, he never refused any umpire’s request for a break.

Petitioner explained that he typically scheduled umpire crews in

three - man rotations. This arrangement would name two umpires to

officiate the game, and allow the third umpire to take a break.

The umpir es would then rotate responsibilities/breaks for the

next game.

26. Regarding his umpire training and testing regimen,

Petitioner commented that he wanted his umpires to be the best in

the business, and he prepared them to be the best in the

business. He held them to a very high standard. Petitioner

conveyed that he conducted many training clinics every year. He

held more training sessions that anyone else in USSSA. He also

produced videos, as well as designed an online test.

27. Petitioner denied t hat he ever became complacent at his

job. In 2016, he scheduled and directed the same number of USSSA

Conference tournaments (15) as when he started as National Umpire

in Chief in 2007. Petitioner represented that his tourna ments

were always extremely we ll run . Further, he ensured that all

umpires were timely paid for their services and travel.

28. Petitioner confirmed that he had several discussions

with Mr. DeDonatis in the fall of 2016 regarding his future as

USSSA’s National Umpire in Chief. Petiti oner, however, denied

USSSA intended to outsource his duties. Instead, while

Petitioner was aware that Mr. DeDonatis was reexamining his role,

Petitioner was under the impression that he wa s to continue

executing his Umpire in Chief responsibilities through June 2017.

Towards this end, USSSA continued to pay Petitioner at the same

rate through June 2016, as well as awarded Petitioner an annual

$5,000 bonus. Further, Petitioner, at USSSA’s instructions,

directed a Conference tournament in March 2017.

29. Regarding the basis of his discrimination claim,

Petitioner testified that Mr. DeDonatis made several specific

comments about his age between January and December 2016.

Mr. DeDonatis sugge sted to Petitioner that after USSSA’s move to

Brevard County, he needed to “think about retiring . . . you

should be thinking about the next step.” (Pe titioner was turning

65 in June 2017 .) Moreover, at the final hearing, Mr. DeDonatis

expressed that USS SA “had a plan in place that this Association

wouldn’t get old at the top. That we would get fresh, and we

would keep fresh blood into it all the time.”

30. Petitioner offered two witnesses to discuss the quality

of his job performance as USSSA’s Natio nal Umpire in Chief.

First, Petitioner called Randy Fisher. Mr. Fishe r is a former

employee for the C ity of Kissimmee, Florida, where he worked in

the Parks & Recreation Department. In Parks & Recreation,

Mr. Fisher served as the athletic supervisor ove r facilities.

31. Mr. Fisher testified that during the period he worked

with Parks & Recreation (2006 - 2013), USSSA frequently used one of

Kissimmee’s athletic complexes for its tournaments. Over this

time, he often met with Petitioner to coordinate and schedule

sporting events.

32. Mr. Fisher relayed that Petitioner directed multiple

USSSA softball tournaments per year at the Kissimmee athletic

fields. Mr. Fisher expressed that he enjoyed working with

Petitioner, and they developed a good working rela tionship.

Mr. Fisher encountered no issues with the manner in which

Petitioner managed tournaments. Mr. Fisher found Petitioner

well - prepared, responsive, and timely. Mr. Fisher never heard or

observed Petitioner yelling at umpires, embarrassing umpires , or

denying umpires breaks. Mr. Fisher further conveyed that he

never knew Petitioner not to abide by the parks’ lightning

detection system.

33. Finally, M r. Fisher represented that the C ity of

Kissimmee hired Petitioner twice a year to conduct traini ng

clinics for its local umpires, which Mr. Fisher found very well

done.

34. Buddy Mesher also testified on Petitioner’s behalf.

Mr. Mesher worked as an umpire for USSSA for approximately

12 years prior to the final hearing. He worked for ten years

dire ctly under Petitioner.

35. Mr. Mesher considers Petitioner a mentor. He has

officiated hundreds of tournament games Petitioner organized. In

addition, Mr. Mesher has attended many umpire clinics Petitioner

conducted. Mr. Mesher commented that Petit ioner’s training

clinics were very polished and well done.

36. Regarding Petitioner’s management style, Mr. Mesher

voiced that Petitioner was a very good representative of USSSA.

Mr. Mesher expressed that Petitioner took his job very seriously,

and he ne ver found Petitioner complacent. Petitioner frequently

provided advice to umpires and prepared them well for their

performances on the field. Mr. Mesher found Petitioner honest

and straightforward.

37. Further, Mr. Mesher never saw Petitioner abuse,

e mbarrass, or yell at an umpire. If Petitioner had “teaching

moments,” he would pull the umpire aside and talk to him or her

privately.

38. Regarding Petitioner’s oversight of USSSA tournaments,

Mr. Mesher conveyed that he never experienced any issues dur ing

tournaments. Mr. Mesher never saw Petitioner put any umpire in

danger. Nor did he ever deny an umpire’s request for water.

39. To support its defense, USSSA called

Charles “Doc” Beckwell, the person who Mr. DeDonatis selected to

assume Petitioner’ s National Umpire in Chief duties.

40. USSSA retained Dr . Beckwell as its National Director of

Officials in January 2017 . Dr. Beckwell was 56 years old at the

time (approximately eight years younger than Petitioner).

Dr. Beckwell described his job as a contract position. For his

services, Dr. Beckwell confirmed that he is paid $30,000 a year

by USSSA .

41. In his role, Dr. Beckwell oversees all umpire

development and training for the 16 to 17 different sporting

operations USSSA conducts. He also serv es as the Umpire in Chief

for USSSA’s softball (slow pitch and fast pitch) and baseball

operations.

42. Prior to becoming USSSA’s Umpire in Chief, Dr. Beckwell

umpired for USSSA for approximately 37 years. He started on the

softball circuit in Michigan . Thereafter, USSSA regularly

promoted him to officiate more significant events, including the

softball World Series (2002 to present), as well as serve as an

instructor at numerous umpire clinics.

43. Dr. Beckwell has known Petitioner since 1999. He first

met him when Petitioner served as USSSA’s Umpire in Chief, and

they have worked numerous sporting events together. Dr. Beckwell

believes that he and Petitioner have a good relationship, and he

considers Petitioner a friend.

44. Regarding Petitio ner’s job performance, Dr. Beckwell

credibly disclosed that, towards the end of Petitioner’s tenure

as Umpire in Chief, he became aware of several complaints from

fellow umpires regarding Petitioner’s management style. These

umpires resented the manner in which Petitioner occasionally

spoke to them. Other criticisms concerned difficulties in

obtaining water when on the field. (Dr. Beckwell urged that he

makes a determined effort to ensure his umpire teams stay

hydrated.) Dr. Beckwell was also aware of a general complaint

regarding insufficient or inadequate training opportunities for

umpires.

45. In addition, Dr. Beckwell persuasively attested that he

attitude when dealing with umpires. Dr. Beckwell also witnessed

Petitioner speak in a sarcastic manner to umpires, which included

screaming and yelling.

46. Finally, Dr. Beckwell acknowledged that Petitioner’s

relationship with a number of USSSA Conference umpires had

deteriorated. Dr. B eckwell agreed that Petitioner’s demeanor had

created a “toxic” environment. Dr. Beckwell revealed that some

umpires expressed that they did not want to work with Petitioner.

47. Dr. Beckwell professed no specific knowledge of the

reason Mr. DeDonatis terminated Petitioner. However,

D r. Beckwell ’s description of Petitioner’s management style in

his final years as Umpire in Chief was convincing and is

credited.

48 . Based on the competent substantial evidence in the

record, the preponderance of the evi dence does not establish that

USSSA discriminated agai nst Petitioner based on his age.

Accordingly, Petitioner failed to meet his burden of proving that

USSSA committed an unlawful employment practice against h im in

violation of the FCRA.

CONCLUSIONS OF L AW

49 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to sections 120.569, 120.57(1), and 760.11(7),

Florida Statutes. See also Fla. Admin. Code R. 60Y - 4.016.

50 . Petitioner brings this action charging that USSSA

discriminated against him in violation of the FCRA. Petitioner’s

claim centers on his allegation that USSSA terminated him based

on his age. The FCRA protects employees from age discrimination

in the workplace. See § § 76 0.10 - .11, Fla. Stat. Section 760.10

states, in pertinent part:

(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,

pregnancy, national origin, age, handicap, or

marital status.

51 . Section 760.11(7) permits a party for whom the

Commission determines that there is not reasonable cause to

believe that a violation of the FCRA has occurred to request an

administrative hearing before DOAH. Following an administrative

hearing, if the Administrative Law Judge (“ALJ”) finds that a

discriminatory act has occu rred, the ALJ “shall issue an

appropriate recommended order to the commission prohibiting the

practice and recommending affirmative relief from the effects of

the practice, including back pay.” § 760.11(7), Fla. Stat.

5 2 . The burden of proof in this admi nistrative proceeding,

absent a statutory directive to the contrary, is on Petitioner as

the party asserting the affirmative of the issue. Dep’t of

Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); see

also Dep’t of Banking & Fin., Div. of Sec. & Investor Prot. v.

Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996)(“The general

rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.”). The

preponderance of the evidence standard is applic able to this

matter. See § 120.57(1)(j), Fla. Stat.

53 . Regarding age discrimination, the FCRA was derived from

two federal statutes, Title VII of the Civil Rights Act of 1964

and 1991, 42 U.S.C. § 2000e, et seq. ; and the Age Discrimination

in Employment Act (“ADEA”), 29 U.S.C. § 623. See Brown Distrib.

Co. of W. Palm Beach v. Marcell , 890 So. 2d 1227, 1230 n.1 (Fla.

4th DCA 2005). Florida courts apply federal case law

interpreting Title VII and the ADEA to claims arising out of the

FCRA. Id. ; see also City of Hollywood v. Hogan , 986 So. 2d 634,

641 (Fla. 4th DCA 2008); and Sunbeam TV Corp. v. Mitzel , 83

So. 3d 865, 867 (Fla. 3d DCA 2012).

54 . Discrimination may be proven by direct, statistical, or

circumstantial evidence. See Valenzuela v. GlobeGrou nd N. Am.,

LLC , 18 So. 3d 17, 22 (Fla. 3d DCA 2009) . Direct evidence is

evidence that, if believed, would prove the existence of discriminatory intent behind the employment decision without any

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); see also Holifield v. Reno , 115 F.3d

1555, 1561 (11th Cir. 1997). Courts have held that “‘only the

most blatant remarks, whose intent could be nothing other than to

discriminate . . .’ will constitute direct evidence of

discr imination.” Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations omitted).

55 . Petitioner presented no direct evidence of age

discrimination on the part of USSSA. Similarly, the record in

this proceeding contain s no statistical evidence of

discrimination related to USSSA’s decision to terminate

Petitioner’s employment.

56 . In the absence of direct or statistical evidence of

discriminatory intent, Petitioner must rely on circumstantial

evidence of discrimination to prove his case. For discrimination

claims involving circumstantial evidence, Florida courts follow

the three - part, burden - shifting framework set forth in McDonnell

Douglas Corp. v. Green , 411 U. S. 792 (1973), and its progeny,

Valenzuela , 18 So. 3d at 2 1 - 22; see also St. Louis v. Fla. Int’l

Univ. , 60 So. 3d 455, 458 (Fla. 3d DCA 2011).

57 . Under the McDonnell Douglas framework, a petitioner

bears the initial burden of establishing, by a preponderance of

the evidence, a prima facie case of discrimination . See

McDonnell Douglas , 411 U.S. at 802 - 04; Burke - Fowler v. Orange

Cnty. , 447 F.3d 1319, 1323 (11th Cir. 2006). Demonstrating a

prima facie case is not difficult, but rather only requires the plaintiff “to establish facts adequate to permit an inference of

discrimination.” Holifield v. Reno , 115 F.3d at 1562.

58 . To establish a prima facie case of age discrimination

in a promotion decision, Petitioner must demonstrate that : 1) he

is a member of a protected class, i.e., at least forty years of

age; 2) he is otherwise qualified for the position; 3) he was

subjected to an adverse employment action; and 4) his position was

filled by a worker who was substantially younger than

Petitioner. 3/ O’Connor v. Consol. Coin Caterers Corp. ,

517 U.S. 308 (1996); Krag or v. Takeda Pharm. Am., Inc. , 702 F.3d

1304, 1308 (11th Cir. 2012); and Hogan , 986 So. 2d 634, 641 (Fla.

4th DCA 2008).

59 . Florida and federal case law further instruct that, t o

prevail on an ADEA (and FCRA) claim, the employee must prove, by

a prepond erance of the evidence, that the employer’s adverse

employment action would not have occurred “but - for” the

employee’s age. Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167,

180, 129 S. Ct. 2343, 2352, 174 L. Ed. 2d 119 (2009); Rodriguez

v. Cargo Airport Serv s. USA, LLC , 648 F. App’x 986, 989 (11 th Cir.

2016). T he petitioner’s age must have “actually played a role in

[the employer’s decision - making] process and had a determinative

influence on the outcome.” Hogan , 986 So. 2d at 641; Hazen Paper

Co. v. Biggin s , 507 U.S. 604, 610, 113 S. Ct. 1701, 1706 (1993);

see also Cap. Health Plan v. Moore , 44 Fla. L. Weekly D2590 (Fla.

1 st DCA October 23, 2019) (the “ ‘ but - for cause’ does not mean ‘sole

cause . . . an employer may be liable under the ADEA if other

factors c ontributed to its taking the adverse action, as long as

age was the factor that made a difference’ . . . age must be

determinative.”) (citing Leal v. McHugh , 731 F.3d 405, 415 (5th

Cir. 2013) .

60 . If the p etitioner establishes a prima facie case, he

crea tes a presumption of discrimination. At that point, the

burden shifts to the employer to articulate a legitimate, non -

discriminatory reason for taking the adverse action. Valenzuela ,

18 So. 3d at 22. A legitimate reason is “ one that might motivate

a rea sonable employer.” Rodriguez , 648 F. App’ x at 990. The

reason for the employer’s decision should be clear, reasonably

specific, and worthy of credence. Dep’t of Corr. v. Chandler ,

582 So. 2d 1183, 1186 (Fla. 1st DCA 1991).

61 . The employer has the bu rden of production, not the

burden of persuasion, to demonstrate to the finder of fact that

the decision was non - discriminatory. Flowers voup Cnty. ,

803 F.3d 1327, 1336 (11th Cir. 2015). This burden of production is “exceedingly light.” Holifield , 1 15 F.3d at 1564. The

employer only needs to produce evidence of a reason for its

decision. It is not required to persuade the trier of fact that

its decision was actually motivated by the reason given.

St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502 (U.S. 1993).

62 . If the employer meets its burden, the presumption of

discrimination disappears. The burden then shifts back to the

p etitioner to prove that the employer’s proffered reason was not

the true reason but merely a “pretext” for discrimination. Com bs

v. Plantation Patterns , 106 F.3d 1519, 1538 (11th Cir. 1997);

Valenzuela , 18 So. 3d at 25.

6 3. To establish “pretext,” the petitioner must show

“directly that a discriminatory reason more likely than not

motivated the decision, or indirectly by showi ng that the

proffered reason for the . . . decision is not worthy of belief.”

Chandler , 582 So. 2d at 1186 (citing Tex. Dep’t of Cmty. Aff. v.

Burdine , 450 U.S. 248, 252 - 256 (1981)); Kogan v. Israel , 211 So.

3d 101, 109 (Fla. 4th DCA 2017). The proffered explanation is

unworthy of belief if the petitioner demonstrates “such

weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could find th em unworthy

of credence.” Combs , 106 F.3d at 1538; see also Reeves v.

Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143 (2000). The

petitioner must prove that the reasons articulated were false and

that the discrimination was the real reason for the act ion. City

of Miami v. Hervis , 65 So. 3d 1110, 1117 (Fla. 3d DCA 2011)

(citing St. Mary’s Honor Ctr . , 509 U.S. at 515)(“[A] reason

cannot be proved to be ‘a pretext for discrimination ’ unless it

is shown both that the reason was false, and that discriminat ion

was the real reason.”).

6 4 . Despite the shifting burdens of proof, “the ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the [petitioner] remains at

all times with the [petitioner].” Burdine , 450 U.S. at 253;

Valenzuela , 18 So. 3d at 22.

65 . Turning to the facts found in this matter, Petitioner

failed to establish a prima facie case that USSSA discriminated

against him based on his age. Regarding the first three

elements, Petitioner sufficiently demonstrated that: 1) he is a

member of a protected class (Petitioner was 65 at the time he was

let go); 2) he was qualified to hold his position at USSSA

(Petitioner persuasively established that he competently

performed as USSSA’s National Umpire in Chi ef for over ten

years); and 3) he was subjected to an adverse employment action

(Petitioner was fired).

66 . Although the burden o f proving a prima facie case is

not difficult, satisfying the fourth element is problematic for

Petitioner. On the one hand , the language of several federal

cases supports Petitioner’s position. See O’ Connor , 517 U.S. at

313, which ruled that the prima facie case does not require the “substantially younger” person to be outside of the protected

class, i.e., under forty years of age; Carter v. Decisionone

Corp. , 122 F.3d 997, 1003 (11th Cir. 1997) a three - year age

difference was sufficient to establish age discrimination; and

Mazzeo v. Color Resolutions Int’ l, LLC , 746 F.3d 1264, 1271 (11th

Cir. 2014)(“A plaintiff may demonstra te that he was replaced by showing that, after his termination, some of his former responsibilities were delegated to another employee.”) . When

viewed in the light most favorable to Petitioner, the evidence

shows that USSSA fired Petitioner and assigned h is job

responsibilities to a “substantially younger” person.

67 . On the other hand, however, two facts stymie

Petitioner’s argu ment. First, the evidence substantiates that

USSSA eliminated Petitioner’s position. Mr. DeDonatis resolved

not to staff a ful l - time National Umpire in Chief after USSSA

moved to Brevard County. Consequently, USSSA did not “replace”

Petitioner with another (younger) employee. Secondly, USSSA did

not shift any of Petitioner’s Umpire in Chief duties to another

USSSA worker. Inst ead, USSSA outsourced all umpire oversight and

management to an “independent contractor” (Dr. Beckwell).

Therefore, the evidence establishes that USSSA did not fill the

position from which Petitioner was fired with a younger employee.

6 8. Moreover, eve n assuming arguendo that Petitioner

established a prima facie case of age discrimination, USSSA

articulated several legitimate, non - discriminatory reasons for

the adverse employment action about which Petitioner complains.

USSSA’s burden to refute Petitio ner’s prima facie case is light.

USSSA met this burden. First, Mr. DeDonatis persuasively

attested that his decision to fire Petitioner was broadly

motivated by his effort to reduce expenditures. This position is

supported by the fact that USSSA paid Dr . Beckwell less than half

Petitioner’s salary to assume the Umpire in Chief

responsibilities. As an additional reason, USSSA provided

credible testimony that USSSA began questioning Petitioner’s

management style. Dr. Beckwell confirmed Mr. DeDonatis’

sta tements that Petitioner’s personal interactions with several

umpires had created a “toxic” atmosphere within the USSSA

Conference officiating corps.

6 9. Completing the McDonnell Douglas burden - shifting

analysis, Petitioner did not prove, by a preponde rance of the

evidence , that USSSA’s stated reasons for firing him were merely

a “pretext” for unlawful discrimination. The record in this

proceeding does not support a finding or legal conclusion that

USSSA’s proffered explanations were false or not worth y of

credence.

70 . As detailed above, USSSA persuasively argued that

USSSA’s decision to discharge Petitioner in June 2017 was based

on non - discriminatory grounds. First, the evidence bears out

that USSSA terminated Petitioner for economic reasons. Bo th

Mr. DeDonatis and Dr. Beckwell credibly testified that

Dr. Beckwell can capably ser ve as Umpire in Chief as a part - time

independent contractor while reducing USSSA’s expenditures.

71 . Second ly , the facts found in this matter support

Mr. DeDonatis’ re presentation that Petitioner wielded a brusque

management style that rankled some of the umpires he supervised.

Mr. DeDonatis had no firsthand knowledge of any such

confrontations . Nor did he produce any documentation backing his

statement. However, Dr. Beckwell, who personally observed

“numerous” confrontations between Petitioner and USSSA umpires,

confirmed Mr. DeDonatis’ testimony.

7 2. Based on this evidence, Petitioner did not prove

“pretext.” In other words, Petitioner did not show that the

reas ons Mr. DeDonatis raised for terminating Petitioner were

false. Neither does the evidence establish that USSSA fired

Petitioner based on his age. 4/

73 . Accordingly, even if Petitioner presented enough

evidence to establish a prima facie case of age discrimination,

he did not produce sufficient evidence to prove that USSSA would

not have fired him “but - for” his age. Consequently, Petitioner

did not meet his ultimate burden of proving, by a preponderance of

the evidence, that USSSA’s decision affectin g his employment was

based on discriminatory intent.

7 4. The undersigned is also mindful that in a proceeding

under the FCRA, the court is “not in the business of adjudging

whether employment decisions are prudent or fair. Instead, [the

court’s] sole c oncern is whether unlawful discriminatory animus

motivates a challenged employment decision.” Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d at 1361. Not everything

that makes an employee unhappy is an actionable adverse action.

Davis v. Town of Lake Park, Fla. , 245 F.3d 1232, 1238 (11th Cir.

2001). For example, an 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 action is not for a

discriminatory reason.” Nix v. WLCY Radio/Rahall Commc’ns , 738

F.2d 1181, 1187 (11th Cir. 1984). “ An at will employee may be

discharged at any time, as long as she is not terminated for a

reason prohibited by law, such as retaliation or unlawful

discrimination .” Laguerre v. Pal m Beach Newspapers, Inc. , 20 So.

3d 392, 395 (Fla. 4th DCA 2009) .

75 . Moreover, it has been consistently held that in

reviewing employers’ decisions, the court’s role is to prevent

unlawful employment practices and “not to act as a super

personnel departm ent that second - guesses employers’ business

judgments.” Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1092

(11th Cir. 2004). An employee cannot succeed by simply

quarreling with the wisdom of the employer’s reasons. Chapman v.

AI Transp. , 229 F.3d 1012 (l1th Cir. 2000); see also Alexander v.

Fulton Cnty., Ga . , 207 F.3d 1303, 1341 (11th Cir. 2000)(“[I]t is

not the court’s role to second - guess the wisdom of an employer’s decisions as long as the decisions are not racially motivated.”).

76 . The above dir ections are nevermore applicable than in

the present dispute. Petitioner emphatically challenged USSSA’s

representation that he performed his duties as National Umpire in

Chief with less than exemplary conscientiousness and expertise.

And, indeed, much o f the evidence substantiates Petitioner’s

asseverations. However, the undersigned’s function is not to

is charged to determine the employer’s motivation. In this

matter, the preponderance of the testimony in the record does not

link Petitioner’s termination with actual discriminatory animus.

On the contrary, USSSA presented plausible justifications for its

decision to fire Petitioner, and Petitioner did not demonstrate

that those reasons w ere a “pretext” for age discrimination.

77 . In sum, while Petitioner intensely believes (and

credibly proved) that USSSA did not need to replace him with

another worker, Petitioner did not establish that USSSA’s decision

to eliminate his job was based o n the fact that he was older than

the person who assumed his responsibilities. Consequently,

Petitioner failed to meet his ultimate burden of proving that

USSSA discriminated against him based on his age.

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 that Petitioner,

Richard Robertson, did not prove that Respondent, USSSA,

committed an unlawful employment practice against him; and

d ismissing his Petition for Relief from an unlawful employment

practice.

DONE AND ENTERED this 9th day of December , 2019 , in

Tallahassee, Leon County, Florida.

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Ad ministrative 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 9th day of December , 2019 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (2019),

unless otherwise noted.

2/ During the final hearing, USSSA attempted to argue that it

te rminated Petitioner in December 2016, when Mr. DeDonatis began

shifting Petitioner’s respon sibilities to Dr. Beckwell. However,

the facts show that Petitioner was employed by USSSA through June

2017. While USSSA may have removed Petitioner from his position

as National Umpire in Chief in De cember 2016, it continued to pay

him at the same rate, as well as assign him the same duties,

through June 15, 2017 (when Petitioner received his last

paycheck). USSSA did not prove that it was simply paying

Petitioner a severance package from Decemb er 2016 through

June 2017.

3/ which the FCRA is modeled) While the federal ADEA (on

specifically protects employees aged 40 and older, the FCRA does

not set a minimum age for a classification of persons protected

thereunder. The Commission has determined that the age “40” has

no significance in interpreting the FCRA. Accordingly, to

establish a prima facie case of ag e discrimination under the

FCRA, Petitioner must show that similarly situated individuals of

more favorably. See Downs v. Shear Expres s, Inc. , Case No. 05 -

2061 (Fla. DOAH March 14, 2006), modified, Order No. 06 - 036 (Fla. FCHR May 24, 2006); Boles v. Santa Rosa Cnty. Sheriff’s Off. ,

Case No. 07 - 3263 (Fla. DOAH December 5, 2007), modified, Order No. 08 - 013 (Fla. FCHR Feb. 8, 2008); Ellis v . Am. Aluminum , Case

No. 14 - 5355, modified, Order No. 15 - 059 (Fla. FCHR Sep. 17, 2015).

4/ Notwithstanding this conclusion, Mr. DeDonatis plainly made

several graceless comments regarding Petitioner’s age while

transitioning Petitioner out of his role as Umpire in Chief,

including his sentiment at the final hearing that USSSA would not

“get old at the top.” Despite these remarks, the preponderance

of the evidence establishes that Respondent’s age was not the

determinative or “but - for” reason for Mr. DeDo natis’ decision to

fire him.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Jennifer K. Birmingham, Esquire

The Birmingham Law Firm, P.A.

Suit e 100

1353 Palmetto Avenue

Winter Park, Florida 32789

(eServed)

Richard A. Robertson

2703 Scarborough Court

Kissimmee, Florida 34744

(eServed)

Cheyanne Costilla , General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahas see, Florida 32399 - 7020

(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 age ncy that

will issue the Final Order in this case.