ESTHER C. REEDY, )
vs. ) CASE NO. 80-1346
NORMAN A. JACKSON, Executive ) Director, Florida Commission on ) Human Relations, )
Intervenor. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 8, 1981, in Tallahassee, Florida.
Petitioner, Esther C. Reedy, was represented by Robert I. Scanlan, Esquire, Tallahassee, Florida; Respondent, State of Florida, Department of Education, was represented by Gene T. Sellers, Esquire, Tallahassee, Florida; and Intervenor, Norman A. Jackson, Executive Director, Florida Commission on Human Relations, was represented by Aurelio Durana, Esquire, Tallahassee, Florida.
Petitioner, Esther C. Reedy, filed a Complaint of Discrimination against Respondent, State of Florida, Department of Education, with the Florida Commission on Human Relations. Petitioner contended that Respondent discriminated against her by refusing to hire her because of her national origin and/or her age. Thereafter, the parties engaged in all procedural steps required as conditions precedent to the filing of a Petition for Relief from an unlawful employment practice. The Commission referred Petitioner's petition for Relief to the Division of Administrative Hearings for the purpose of conducting a formal hearing and submitting a recommended order to the Commission. Prior to the formal hearing in this cause, Norman A. Jackson, Executive Director, Florida Commission on Human Relations, was permitted to intervene. The issue for determination herein is whether Respondent unlawfully discriminated against Petitioner because of her national origin and/or age in denying her application for employment.
Petitioner presented the testimony of Edward M. Bennett, Sr.; Myra Burkhalter (by deposition); John S. Staples; Esther C. Reedy; and Bob Scanlan. Additionally, Petitioner's Exhibits numbered 1 through 13 were admitted in evidence.
Respondent presented the testimony of Francis N. Millett, Jr.; Patricia Wortham; and Garfield Wilson. Additionally, Respondent's Exhibit numbered 1 was admitted in evidence.
The Intervenor presented no witnesses and no exhibits.
All parties submitted post-hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
At the conclusion of the Petitioner's case in chief, Respondent moved for dismissal of Petitioner's claim as to discrimination based upon her age, and the Petitioner stipulated that no proof of discrimination as to age had been presented. Accordingly, Respondent's motion to dismiss was granted.
Respondent filed a post-hearing Motion to Strike Portion of Intervenor's Proposed Findings of Fact, and the Intervenor filed a Response to Respondent's Motion to Strike. Respondent's Motion to Strike be and the same is hereby denied.
On or about January 30, 1979, Respondent, State of Florida, Department of Education (hereinafter "Department") issued an Announcement of Position Vacancy for Position number 00533 for an Educational Data Analyst I (hereinafter "EDA-I"). The deadline for filing applications was February 20, 1979. The minimum qualifications were:
Graduation from an accredited four-year college or university and two years of experience in school administration, teaching or experience directly related to the specific school service program. Professional or technical experience in one of the above areas may be substituted for the required college training on a year-for-year basis.
These qualifications, known as class specifications, are issued by the Department of Administration.
The advertised position was in the Teacher Certification Section. John Stables was the Administrator for the Teacher Certification Section during all times material hereto.
The first step in the selection process begins with the request for announcement of position vacancy. When this is approved, the Department issues an Announcement of Position Vacancy. The Announcement contains a closing date by which all those interested in the position must file their applications. The applications are received in the Department's Personnel Office and are screened to determine whether or not the applicant meets the minimum qualifications as set forth in the Announcement. As the applications are received, they are forwarded to the section where the vacant position is available.
After the applications are received by the section that has the vacant position, the applications are reviewed, interviews are conducted, and the top candidates are designated. A specific recommendation is made by the section head, approved by the Division Director, and then reviewed by the Personnel Office for compliance with appropriate rules and to verify that all paperwork has been properly completed. The recommendation is then forwarded to Francis N. Millett, Jr., the Deputy Commissioner of Education, who is also the Department's Equal Employment Opportunity Officer, who reviews it. The recommendation then goes to Commissioner Turlington, who makes the final decision and signs the appointment letter.
In the Teacher Certification Section, Patricia Wortham had the duty of receiving all applications and compiling a list of the applicants. It was also her duty to make arrangements for interviews of any applicants that requested an interview. In addition, when the Section had made its recommendation, she typed the Department's form containing statistical information and returned the form with the applications of those who had not been selected to the Personnel Office.
In the Teacher Certification Section, Myra Burkhalter, an Educational Consultant III, had the duty of conducting interviews with the applicants in the first instance. Burkhalter had been employed in the Section for approximately ten years and had served as an Educational Consultant III for the last three or four of those years. The Educational Data Analysts I and II were under her general supervision. She was the highest ranking employee in the Section, outranked only by Staples, and was specifically given the task of interviewing applicants.
After Burkhalter completed her interview with a particular applicant, she would introduce the applicant to Staples if he were available.
The EDA-I position is a meticulous job that requires from one to one and a half years of training before the individual is capable of performing the job. There is contact between the EDA-I and persons in educational institutions outside the Department. The analysts review transcripts of persons applying for a teaching certificate in the State of Florida.
The duties require counseling and interviewing with teacher-applicants and further require an almost instant recall of all the statutes and State Board of Education teacher certification rules. The analyst reviews the courses and experience of the teacher-applicant and applies the course work and credits against the rules to determine whether the person applying for a certificate meets the minimum qualifications.
Some 1,600 to 1,700 institutions from which the certification applicants obtained schooling have to have their accreditation status verified by the analyst in order to determine whether or not that institution meets the standards set by the State of Florida. Additionally, many applicants have degrees from institutions in countries other than the United States, and the analyst must either know or be able to find information regarding the schools in those foreign countries.
Staples and Burkhalter considered the interview process of an applicant for an EDA-I position to be imperative. Burkhalter explained to the applicant in some detail the preciseness required in performing the job and the pressures of the job, since there were always teacher certification requests to be analyzed. The year's training procedure, the amount of knowledge that must
be acquired by the analyst in order to perform the required functions, and the importance of the screening process of the certification applicants in order to assure that only qualified teachers are certified were explained to the interviewee.
Additionally, Burkhalter talked with the EDA-I applicant to determine how that person's reaction would be (as near as possible in an interview) to the type of work and duties of the position. The communicative skills of the job applicant were discussed. It is absolutely essential that the EDA-I have the ability to communicate both orally and in writing.
The reason for the high degree of communication ability is that an EDA-I, after the training period, writes letters to educational institutions concerning transcripts and talks to and corresponds with persons requesting certification. Part of the duties involve contact with the public. An analyst spends one week out every six or eight weeks at the front desk working with office visitors. Good communicative skills are required in order that the EDA can answer questions posed by applicants for teacher certification. The interviewing process is thus required in order to ascertain the applicant's communicative skills.
Another purpose of the interview is to determine as nearly as possible the applicant's attitude in interpersonal relationships, since there are approximately eighteen analysts doing the same thing, and it is essential that they work as a team. The job places the EDA-I under considerable pressure in working closely with other people, especially during the training period. The training period, by necessity, requires close supervision of the EDA-I and involves frequent correction of the trainee's work.
Since the Department invests over a year in the training of an EDA-I, it is essential that an applicant's future plans be discussed, particularly the applicant's intentions concerning how long the applicant intends to remain in Tallahassee, the job location, and how long the applicant intends to remain in the position. Inasmuch as the information to be given to and received from the interviewee can only be communicated and evaluated in a face-to-face meeting, it is essential that those applying for the position be interviewed.
The Department has no established policy regarding the conducting of employment interviews. The method utilized is left up to the particular section doing the interviewing. Furthermore, the Department of Administration has promulgated no rules or guidelines requiring that interviews be conducted in a certain manner, that an agency interview a certain number of applicants, or that an agency interview any applicants.
Since there were no state or department rules for conducting interviews, it was the practice of the Section to interview those applicants requesting an interview. Since there were many applicants for each EDA-I position, and since most of the applicants met the minimum qualifications, experience had shown that there would be a sufficient number of applicants that requested an interview from which the top four or five names would be submitted to Staples for his recommendation.
Staples believed that the fact that a person would call and ask for an interview was indicative of the person's enthusiasm and interest in the job itself. He believed it was a further indication of the person's self-confidence and desire to obtain employment.
Burkhalter and Staples endeavored to evaluate whether the applicant would fit into the EDA-I job during the interview process.
Staples and Burkhalter never refused to interview anyone who requested an interview. Additionally, no one was hired who had not been interviewed.
On or about February 16, 1979, Petitioner filed an application with the Personnel Office for the EDA-I Position number 00533. She was born in Puerto Rico, where the main language is Spanish. Her family spoke French and Spanish while she was growing up, and Petitioner speaks English with an accent and Spanish.
Petitioner's application was forwarded to the Teacher Certification Section. Twenty-five applications were received for Position number 00533. Eight persons were interviewed by Burkhalter for Position number 00533--five were interviewed in February and March, 1979, and three had been interviewed on previous occasions.
Approximately two weeks after Petitioner filed her application at the Personnel Office, she called the Teacher Certification Section inquiring as to what action had been taken with her application. Since the person answering the telephone had no information regarding the applications for the position, Petitioner requested that Staples return her phone call. When she did not receive a return call from Staples, she again called the Teacher Certification Section, again spoke to someone with no information regarding the pending applications, and again requested that Staples return her call. When she did not receive a return phone call from Staples, Petitioner called the Teacher Certification Section a third time.
Patricia Wortham, the person in charge of scheduling interviews of applicants, took the third phone call and distinctly remembers her conversation with Petitioner. Petitioner asked if the position had been filled and why she had not been called for an interview. Wortham explained that the Section did not call applicants to schedule interviews, but rather waited until an applicant requested an interview. Wortham asked Petitioner if she would like to come in for an interview, and Petitioner replied that she did not want an interview. Wortham was surprised by Petitioner's refusal to come in for an interview since in the seven years that Northam had worked in that position, she had never had an applicant decline to come in for an interview.
Petitioner's telephone conversation with Wortham concerning an interview occurred before anyone had been selected to fill the position. Petitioner was informed that the position had not been filled, and that an interview was available.
Although Petitioner denies that she was offered an interview, she does admit that during her third phone call to the Teacher Certification Section an interview was discussed.
By the time Petitioner called the Section for the fourth time, the position had been filled, and she was so advised by Burkhalter. Shortly thereafter, she received a letter officially notifying her that a selection had been made.
Margaret Goforth filled an application and met the minimum qualifications for the position. She requested and was granted an interview. Since she was believed to be the best applicant of those interviewed, she was
selected. Staples signed the recommendation to hire Goforth on March 16, 1979, and she began work on April 24, 1979.
After Ralph Turlington became Commissioner of Education in 1974, he determined that the Department needed to have an Equal Employment Opportunity (hereinafter "EEO") policy committee and EEO officer. The Department subsequently instituted an EEO policy. The purpose of the policy is to provide people of all racial and ethnic backgrounds a greater opportunity to apply for and be selected for positions in the Department. To implement the policy, the Department began to advertise widely positions that became open so that people meeting the qualifications would have an opportunity to apply.
An EDA-I is considered a professional position. The Department sends position vacancy announcements for professional positions to approximately six hundred locations, including universities, community colleges, school districts, minority groups, affirmative action groups, and also distributes the announcement within the Department. The purpose of the EEO policy is to ensure that all applications for positions are given equal treatment. The policy sets forth target areas such as minorities, handicapped persons, and affirmative action groups in order for these persons to be notified and have the opportunity to apply for positions.
The EEO policy does not specify how job applicants are to be interviewed or selected for interviews. The procedure for conducting the interviews and making the final selection is left up to the individual section, provided the procedure used does not discriminate against an applicant.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter hereto. Section 120.57(1), Florida Statutes (1979).
Section 23.167, Florida Statutes (1979), provides, in pertinent part:
It is an unlawful employment practice for an employer:
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, national origin, age, handicap, or marital status.
To limit, segregate, or classify employees or applicants for employment in a way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
Petitioner's claim of discrimination by the Respondent against her was based upon her age and/or her national origin.
At the conclusion of Petitioner's case in chief, Respondent moved to dismiss her claim. Although Petitioner's application for employment reflects the date of her birth, no other testimony or evidence was presented concerning Petitioner's age or how Petitioner's age was allegedly a factor in the hiring process. After Petitioner's attorney conceded that no proof of an age discrimination claim had been made, Respondent's motion to dismiss was granted insofar as Petitioner's claim of discrimination based upon her age. Accordingly, only Petitioner's claim of discrimination based upon her national origin need be determined.
It should also be noted that the issue as plead by the Petitioner and Respondent and as tried by them involves whether or not Respondent violated Section 23.167(1)(a). The alleged violation of Section 23.167(1)(b) was interjected by the Intervenor in this cause and appears in the proposed recommended order. Although the Intervenor has injected many legal and emotional arguments throughout this proceeding, the Intervenor presented no evidence in this cause and did not examine or cross-examine any of the Petitioner's witnesses or any of the Respondent's witnesses except for asking a question which was then withdrawn of Petitioner's attorney on the issue of attorney's fees. Although an examination of the record in this cause reveals that Petitioner's claim is one of disparate treatment and not of disparate impact, both arguments will be dealt with herein.
There is a dearth of cases construing Section 23.167(1), Florida Statutes, and, accordingly, Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e, et seq., as amended, and the cases decided thereunder are looked to for guidance. In Texas Dept. of Community Affairs v. Burdine, 101 S.Ct. 1089 (1981), the Supreme Court of the United States reexamined the burden of proof and order of proof in cases arising under the federal counterpart to Florida's Human Rights Act:
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id., at 802, 93 S.Ct., at 1824.
Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804, 93 S.Ct., at 1825.
The nature of the burden that shifts to the defendant should be understood in light of the plaintiff's ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at
all time with the plaintiff.
. . . (Footnote omitted.) At 1093.
. . .We have stated consistently that the employee's prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus. . .
At 1096.
. . .When the plaintiff has proved a prima facie case of discrimination, the defendant bears only the burden of explaining clearly
the nondiscriminatory reasons for its actions. . . At 1097.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), the Supreme Court of the United States set forth the requirements of a prima facie case of discrimination by requiring the complainant to show: (1) that he belongs to a protected minority, (2) that he applied and was qualified for a job for which the employer was seeking applications, (3) that he was rejected despite his qualifications, and (4) that the position remained open after his rejection and the employer continued to seek applicants from persons of complainant's qualifications. Since Petitioner's testimony that she is a Hispanic and, therefore, a member of a protected class is uncontroverted, Petitioner has satisfied the first requirement set forth in McDonnell Douglas Corp. v. Green, supra. However, Petitioner's proof fails as to the remaining three requirements set forth therein.
Petitioner's claim is bottomed on two primary factors: (1) The interview process was discriminatory, and (2) the statistics show discrimination was involved. Neither of these concepts have been proven by a preponderance of the evidence. Regarding the first factor, the application process involved an interview. Testimony showed in great detail the importance of the interview in the selection process for the EDA-I positions. In her seven years of arranging interviews, Patricia Wortham had never had anyone decline to come in for an interview, and she, accordingly, recalls specifically her conversation with the Petitioner. Even Petitioner admits that an interview was discussed. When Petitioner refused to accept the opportunity to come in for an interview, the position was still open, and she herself refused to comply with the additional screening requirement. Petitioner was informed of the additional selection technique utilized by Respondent in determining which of the qualified applicants to hire; she rejected the opportunity; and she consequently failed to show the employer she had the temperament, communicative skills, and other attributes that were necessary to perform the duties of the job. Since Petitioner, in effect, withdrew her application for employment by refusing an interview, she fails to meet the second, third, and fourth McDonnell requirements.
The Department has articulated legitimate reasons for utilizing an interview stage in selecting among qualified applicants, particularly where a large pool of qualified applicants is involved. Neither Staples nor Burkhalter had ever refused to interview an applicant who requested an interview.
The interview process was directly and specifically related to ascertaining the applicant's ability to perform the job duties. The job was a meticulous, highly detailed job that would require approximately one year or more in training. Not every applicant would be interested in such an arrangement. It was imperative that this and other aspects of the work be relayed to those that were interviewed. Additionally, the interview was an effort to ascertain an applicant's communicative skills, particularly oral skills. The job requires the ability to communicate with teacher certificate applicants, as well as with universities and colleges throughout the world. Information regarding communicative skills cannot be ascertained from an employment application. The purpose for conducting and requiring an interview was related specifically to the job to be performed and was a business necessity. Petitioner's failure to accept the opportunity to have an interview is not the fault of the Respondent and cannot constitute proof of discrimination.
Even if it could be determined that the interview process as utilized by the Respondent was less than fair, it must still be recognized that the process was equally unfair to all applicants. Any applicant who was unaware of the interview process and who did not request an interview would be excluded from the second stage of consideration intended to narrow the pool of applicants to be selected for the one position available. All employers must use some technique to narrow down the number of applicants for a job where one job is available and many persons have applied. However, whether all applicants were advised of the interview requirement is immaterial to whether Petitioner can prevail on her claim. Petitioner was advised of the interview requirement before a decision was made by the Teacher Certification Section as to the applicant to be recommended to the Commissioner for appointment. Accordingly, Petitioner has failed to show that the interview process was discriminatory as to her specifically or as to protected classes in general. There was no showing of any correlation between the method of selecting applicants through the interview process and any disparate treatment of Petitioner based on her national origin. Likewise, there was no showing of any correlation between that method and any disparate impact on Hispanics as a class or on any other class. All applicants of any national origin suffered the second stage of screening in an equal and same manner.
Petitioner argues that her qualifications were superior to the qualifications of the person eventually selected for the position. Both persons, however, were equally qualified as far as meeting the minimum qualifications for the position. The fact that Petitioner had more teaching experience and a higher degree than the person selected is immaterial; rather, the difference is that the successful applicant requested an interview and was given one, while Petitioner was offered an interview and declined to accept it. The employer has discretion to choose among qualified applicants, and it is immaterial that the successful applicant was not a member of a protected class based upon national origin. Neither Petitioner nor Intervenor has cited any law requiring that an employer hire a minority applicant over a non-minority applicant.
The second thrust of Petitioner's argument is that the statistics show that discrimination was involved. Petitioner offered into evidence statistics to show that there were no Hispanic persons employed in the Teacher Certification Section at the time of her application for the EDA-I position. That statistic cannot be utilized to prove that Petitioner was not hired on account of her national origin. Petitioner made no showing of how many
Hispanics had ever applied for the EDA-I position in the Teacher Certification Section; Petitioner made no showing of the labor pool from which the successful applicant had come; and Petitioner made no showing of how many applications had been received and rejected for EDA-I positions during any time period prior to her application. Petitioner's reliance on the statistics she presented without further explanation or any showing from where they were derived is insufficient to prove even a prima facie case that Respondent discriminated against her or Hispanics on account of that national origin.
Petitioner has failed to prove a prima facie case of disparate treatment in accordance with the requirements set forth in McDonnell Douglas Corp. v. Green, supra, and Texas Dept. of Community Affairs v. Burdine, supra; the Respondent has articulated legitimate, nondiscriminatory reasons for Petitioner's rejection; and Petitioner has failed to show that the legitimate reasons were not true reasons, but rather were a pretext for discrimination. Additionally, Petitioner has failed to show that the Department's actions were directed toward or had an impact on Hispanics in any way different than the impact on those members of any or all other classes based upon national origin. Accordingly, Respondent has not violated the provisions of Section 23.167(1)(a) or (b), Florida Statutes (1979).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
A final order be entered by the Florida Commission on Human Relations finding that Esther C. Reedy was not discriminated against on the basis of her age or national origin and dismissing her Petition for Relief with prejudice.
RECOMMENDED this 31st day of August, 1982, in Tallahassee, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1982.
Robert I. Scanlan, Esquire Post Office Box 10311 Tallahassee, Florida 32302
Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32301
Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
Mr. Richard Williams Executive Director
Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
