STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILARIO GONZALEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 76-2102

) SOUTH FLORIDA STATE HOSPITAL, ) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter,after due notice, at Hollywood, Florida, on March 4, 1977, beforethe undersigned Hearing Officer.

ISSUE PRESENTED

Whether Respondent violated Section 112.041, Florida Statutes, by failure to select Petitioner for the position of Supervisor, Forensic Social Work Unit, South Florida State Hospital.

This case arises from the filing of a complaint byPetitioner alleging that he was unlawfully discriminated againstin failing to be promoted at the South Florida State Hospital because of his national origin. Although Respondent had in existence a procedure for the handling of such complaints of discrimination, HRS regulation No. 60-1, dated December 18, 1974, it was stipulated at the hearing that both parties waived the procedural requirements of that directive and agreed that the matter would be determined solely as a result of evidence presented at the hearing herein.

FINDINGS OF FACT

1. Petitioner has been employed at the South Florida State Hospital (Hospital), Hollywood, Florida, since 1969. He started in the Hospital Day Care Center as a Social Worker. He was promoted in 1975 to Clinical Social Worker I and has held thatposition until the present time. He came to this country from Cuba in 1960, where he had been a practicing attorney since 1938,upon his graduation from the School of Law, University of Havana.During the nine years previous to his employment by Respondent he had been an insurance agent in New York and a teacher inMichigan. In 1975, he completed a special law program at the University of Florida. (Testimony of Gonzalez, Petitioner'sExhibit 6)

   
   

2. The Social Services Department at the Hospital includes all social workers assigned to the various hospital services. The director of the Department since 1960 has been Mrs. Dorothy H. Alberts. Clinical Social Workers are classified in grades I, II and III. The job description of the lowest position, Clinical Social Worker I, provides that such an employee is responsible for obtaining pertinent information from patients upon admittance to

   the hospital and thereafter serves as a member of a psychiatric team administering treatment and therapy to patients on an individual and group basis. A team is headed by a psychiatrist and includes a clinical psychologist, therapist, psychiatric aide, and social worker. The duties of the social worker also include counseling patients on adjustment problems, pre-release activities, and working with patients' families in order that they may assist in the rehabilitation process. Minimum training and experience for this position is a baccalaureate degree and one year of social work or guidance counseling experience; however, a master's degree in a social or rehabilitative science may be substituted for the required experience.

   
   

3. The Clinical Social Worker II performs essentially thesame services as the Clinical Social Worker I, but works with more acute cases, serves as a team leader in the rehabilitative process, and provides supervision of subordinate social workers. The Clinical Social Worker III assists in supervising the clinical social services activities of a major program, supervises subordinate social workers and assists the Social Service Director in implementing the team treatment approach in a mental hospital.

   
   

4. Although the above delineation of duties is reflectedin hospital job descriptions, as a practical matter the Clinical Social Worker III in the Forensic Unit of the South Florida State Hospital not only performs administrative tasks, but also deals with individual patients due to shortage of personnel. In addition to a baccalaureate degree, a Clinical Social Worker II is required to have two years of social worker guidance counseling experience. A Master's Degree in a social or rehabilitative service may be substituted for one year of the required experience. The Clinical Worker III is required to have a degree and three years of such experience for which a Master's Degree in a social or rehabilitative science may be substituted for one year of the required experience.

   
   

5. To perform effectively, a social worker must be dedicated to patient care and effectively relate to the patient.Although a knowledge of the Spanish language and culture is anasset because approximately ten percent of the patients at thehospital are Spanish-speaking or of Hispanic origin, such knowledge or background is not mandatory, particularly when occupying a supervisory position. Those social workers assigned to the Forensic Unit perform additional functions involving court liaison and therefore a legal background is helpful, but not required. (Testimony of Hahn, Hernandez, Reinoso, Alberts, Petitioner's Composite Exhibit 1)

1. In August 1976, the incumbent Clinical Social WorkerIII in Forensic Services at the Hospital, Robert Bohler, told Mrs. Alberts that he intended to leave that position for a promotion elsewhere. At that time, there were in existence no agency rules establishing the criteria or procedures for filling such a vacancy other than in broad general terms. Prevailing practice in the district where the Hospital was located was that a vacant position be advertised in a job opportunity bulletin for a period of ten days and then filled from applications received by the promoting authority.

   
   

2. In this case, the promoting authority was the Department Head, Alberts, who exercised complete authority in determiningwho was eligible for and should be appointed to the position. Since Bohler's position was non-competetive, there was no need for a candidate to be on a state register of eligible personnel and anyone meeting the minimum training and experience requirements set forth in current job descriptions could be considered. (Testimony of Rudominer, Copp, Nichols)

3. Bohler had notified Alberts of his intentionto resign, effective September 3, 1976, in a memorandum, datedAugust 23, 1976. Bohler also told Dale Frick, the Clinical SocialWorker II in the Forensic Services of his plan to depart. Frickmet with Bohler and Alberts, at which time the latter told him that he would have to apply for the position and that she would consider him along with any other applicants. Frick proceeded to file his application, dated August 24, 1976 and, on August 25, Alberts sent a memo to the Hospital Personnel Officer stating that she would like to fill the vacancy by promoting Frick who was well qualified. On August 31, Bohler sent a memorandum to Albertsrecommending Frick highly for the anticipated vacancy. On orabout September 1, Job Opportunity Bulletin No. 18 of HRS District 10 was published which included the position of Clinical Social Worker III with a closing date for applications of September 14, 1976. (Testimony of Alberts, Frick, Copp, Petitioner's Exhibits2, 5, Respondent's Exhibit 1)

   
   

4. Petitioner learned of the upcoming position vacancy in August and asked Dr. Pedro Hernandez, Clinical Director of the Forensic Services, about it. Hernandez told him that promotions were made in the Social Work Department solely by Mrs. Alberts and suggested that he see her. Petitioner thereafter had a conversation with Alberts in which he told her he would like to be considered for the position. She informed him that she did not believe he was professionally qualified for the job. Nevertheless, Petitioner filed an application on August 31, 1976. (Testimony of Hernandez, Alberts, Gonzalez, Petitioner's Exhibit 6)

   
   

5. The Job Opportunity Bulletin listing the position was posted in several places at the hospital during the time the job was being advertised. Frick was appointed to the position on an acting basis pending selection of an applicant. At the conclusion of the advertising period, Frick's application was the only one that Alberts had received. She had solicited a former employee of Hispanic origin to apply, but that individual, Angela Lavernia, declined the invitation as she had received a prior offer in the teaching field. For some reason, Petitioner's application was not transmitted to Alberts. On September 17, Frick was appointed as the Clinical Social Worker III to replace Bohler. Alberts testified at the hearing that she had considered Frick the most logical employee to fill the vacancy from the outset, and that, therefore, her premature recommendation could be termed a "prejudgment." However, she stated that she was familiar with Petitioner's record and qualifications over past years and that she would have selected Frick even if she had had Petitioner's application before her. However, if a much more qualified individual than Frick had applied, she would have changed her mind. She based her selection of Frick not only because his was the only application received. She was of the opinion that, in comparison with Petitioner, Frick's educationaland experience qualifications were superior. Additionally, he had supervisory experience, whereas Petitioner did not. She was more interested in the type of experience an applicant possessed than the amount of such experience, together with prior performance, interest in the field, knowledge, efforts to improve oneself by taking courses and workshops. In these areas, she considered Frick to excel Petitioner. Although she obtained a list of eligible applicants in Broward County from the Department Of Administration, she was not required to use that list because the position was noncompetitive. Frick was on the list but not Gonzalez, since he had never applied for certification prior to that time. (He later did so after the appointment had been effected and received certification from the State as Clinical Social Worker II and III) (Testimony of Alberts, Copp,Gonzalez, Frick)

6. Frick held a Master's Degree in psychology and, before his employment commenced at the South Florida State Hospital in March, 1976, he had been successively a special psychiatric attendant in an Indiana hospital for six months in 1973, a "house parent" with the Youth Service Bureau of Porter County, Indiana, and a director of a residential treatment center for almost a year.

   His duties had involved counseling and supervision of delinquent and emotionally disturbed adolescents. He served as a vocational rehabilitation counselor in Fort Lauderdale from July, 1974, to March 1976, with duties involving counseling, placement, and coordination of vocational services for psychiatrically handicapped persons, including group counseling for emotionally disturbed adolescents at South Florida State Hospital. In March 1976, he was appointed as a Clinical Social Worker II in the Forensic Service at the Hospital. Bohler's most recent performance evaluations resulted in an outstanding rating for Frick and an above satisfactory rating for Petitioner.

   Both employees are considered competent and equally capable of performing the duties of a Clinical Social Worker III by the Forensic Clinical Director and several of the psychiatrists. ( Testimony of Frick, Hahn, Hernandez, Reinoso, Copp, Petitioner's Exhibit 5)

   
   

7. Petitioner testified that he has been the subject of discrimination by Alberts ever since he was first employed atthe Hospital. He claims that his only promotion from Social Worker to Clinical Social Worker I in 1975 did not come about until the Hospital personnel director personally interceded with Alberts. He is further of the belief that although Alberts has not made any derogatory ethnic remarks, she has shown her prejudice by failing to promote persons of Spanish origin in her department. He further believes that she downgrades his degree from the University of Havana and considers it of no value. However, written statements of two employees at the hospital, and a former employee, all of Hispanic origin, state that Alberts had never shown any discrimination toward them or anyone else due to ethnic background. Alberts denied any discrimination on her part toward Petitioner or any other employee. (Testimony of Alberts, Gonzales, Respondent's Exhibits 2-4)

   
   

8. Although Petitioner submitted a further applicationfor Frick's former position as Clinical Social Worker II in October, 1976, that position was "frozen" and never filled after being advertised as a vacancy. (Testimony of Alberts, Gonzalez)

   
   

   CONCLUSIONS OF LAW

   
   

9. Petitioner alleges that he was discriminated againstby Respondent in violation of Section 112.041, Florida Statutes.That provision reads as follows:

   
   

   "112.041 No discrimination in state employment.--

   1. It shall be against the public policy of this state for the governing body of any state agency, board, commission, department or state officer, be cause of race, color, sex, religious creed, or national origin of any individual to refuse to hire or

      employ, to bar or to discharge from employment such individuals or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions, or privileges of employ ment, if the individual is the best able and most competent to perform the services required.

   2. Any individual claiming to be aggrieved by an alleged unlawful employment practice under this

      section may file a complaint with said agency, board, commission, department or state official and said individual shall be entitled to a hearing and judicial review as provided in parts II and III of chapter 120, commonly known as the Administrative Procedure Act."

      
      

      Additionally, subsection 110.092(1) provides:

      
      

      "110.092 political activities and unlawful acts prohibited.--

      (1) No person shall be appointed to, demoted, or dismissed from any position in the Career Service, or in any way favored or discriminated against with respect to employment in the Career Service because of race, color, sex, religious creed, national origin, or political opinions or affiliations."

      
      

10. Petitioner alleges that he was denied a promotionto Clinical Social Worker III because of discrimination by Mrs.Alberts based on considerations of his national origin. He doesnot contend that the person receiving the promotion was unqualified, but asserts that his qualifications were superior based on his experience and legal background which was of value in the Forensic Unit of the Hospital. It is net the function of the Hearing Officer to determine who would be the "best able and most competent to perform the services required." That is a matter within the discretion of the appointing authority, subject to eligibility by meeting minimum training and experience requirements. The evidence shows that both Petitioner and Frick met the minimum requirements. In the absence of a clear showing of an abuse of discretion, such as a wide disparity in educational qualifications and experience, the sound discretion of the promotion authority should not be disturbed. The evidence presented in this case shows that both of the employees possess adequate credentials and qualifications for the position.Additionally, both were held in esteem by medical supervisors andco-workers and, undoubtedly, either would perform creditably inthe supervisory position. The fact that Mrs. Alberts told the Petitioner that she did not believe he was professionally qualified was based on her belief that he lacked adequate supervisory experience. This isolated statement is not considered sufficient to warrant serious consideration even if viewed in connection with the claim of discrimination. Further, the fact that Petitioner's application was apparently misplaced and not provided to Mrs. Alberts for consideration is not of importance in a discrimination context since she was familiar with Petitioner's background and experience, and testified that she would not have appointed him to fill the vacancy even if his application had been referred to her. Although she admitted to a "prejudgment" in favor of Frick by her recommendation of him prior to the time the job was even advertised, she qualifiedthis premature action by stating that if an applicant more qualified than Frick had applied, she would have changed her mind.

18 The sole question for resolution in this proceeding is whether or not Petitioner was the victim of discrimination becauseof his national origin. The evidence fails to establish such unlawful conduct. It was shown that Mrs. Alberts had offered theposition in question to a former hospital employee of the same national origin as Petitioner. This fact tends to show that she possesses no inherent bias or prejudice towards persons of Spanish origin. Although Petitioner claimed that his original promotion came only after pressure exerted upon Mrs. Alberts, no independent evidence was submitted to support this allegation. Mrs. Alberts' denial of any discriminatory practices against

persons of ethnic backgrounds is supported by statements of other employees of Spanish origins at the Hospital. Although Petitioner objected to receipt of these statements in evidence as hearsay, they were determined to have probative value and sufficient for supplementing other evidence as to Mrs. Alberts' lack of prejudice.

19. Respondent concedes that no overt acts of discrimination based on national origin were practiced by Mrs. Alberts or anyone else at the South Florida State Hospital, but bases hisclaim on the matters mentioned above of a circumstantial nature.In view of the evidence, however, it is concluded that discrimination against Petitioner has not been established.

RECOMMENDATION

That Petitioner's complaint be dismissed.

DONE and ENTERED this 30th day of March, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Doug Whitney, Esquire 1350 Orange Avenue

Winter Park, Florida 32789

Roger Besu, Esquire

Roberts Building, Suite 900

28 Flagler Street Miami, Florida 33130

Docket for Case No: 76-002102

Orders for Case No: 76-002102