STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOYD GREEN, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 83-1049

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on September 30, 1983, in Orlando, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon the filing of a complaint by the Petitioner alleging that the Department of Transportation had discriminated against him and had committed unlawful employment practices by failing to employ him in a position for which Petitioner was qualified.

APPEARANCES

For Petitioner: Harry L. Lamb, Jr., Esquire

738 West Colonial Drive Post Office Box 7085-A Orlando, Florida 32854

For Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32301-8064 ISSUE

The ultimate issue presented is whether the Respondent, the Department of Transportation, violated Section 23.167, Florida Statutes, in its employment practices by failing to hire the Petitioner because of discrimination against him based upon his race.

Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

FINDINGS OF FACT

1. On December 17, 1981, the Respondent Department of Transportation published an advertisement announcing a vacant position for a welder at its Orlando Maintenance Yard. This advertisement specified that applicants must

   possess either a welder's certificate or have at least one year's welding experience.

   
   

2. Applicants for the position had to be certified as eligible prior to the date of their employment interview.

   
   

3. The closing date of this initial advertisement for the welder's position was established as January 5, 1982. The Department did not receive any applications for this position prior to the closing date of January 5, 1982.

   
   

4. The Petitioner first heard about the welder's position from a friend who was working for the Department. The Petitioner went to the Orlando Maintenance Yard and read about the position on the shop bulletin board. After obtaining a chauffeur's license as required by the position, the Petitioner filed an application for the position on January 10, 1982, after the closing date for the advertisement. On January 19, 1982, the Petitioner was certified as eligible for the position of welder.

   
   

5. On January 27, 1982, the Department readvertised the position, establishing a closing date of February 10, 1982. This advertisement was identical to the initial advertisement published on December 17, 1981. Although the Petitioner's application was received between the closing date of the first advertisement and the initiation of the second advertisement, his application was considered for the welder's position. The Petitioner was interviewed by C.

   P. Bronson, Sid Bronson, and W. O. Downs between January 19 and February 10, 1982.

   
   

6. Petitioner, a black male, had the required welder's certificate and 14 years' experience as a welder. The Petitioner could execute drawings and designs, do layouts, and cut metal, which he could weld into a finished product.

   
   

7. The welder's position had become vacant due to the promotion of the incumbent in August or September 1981. Shortly after the incumbent was promoted, C. P. Bronson spoke with John Mierstein, a white male employed at the Orlando Maintenance Yard as a mechanic, and urged Mierstein to apply for the welder's position. In September 1981, Mierstein filed an application in an attempt to become certified as a welder. Mierstein was notified that he was not qualified for a position as a welder because of lack of experience. Mierstein reapplied and, following the advice of C. P. and Sid Bronson, listed among his experiences "all-purpose welder." Mierstein was again notified that he was not qualified for the position.

   
   

8. Mierstein had been employed by the Department of Transportation as a mechanic on July 7, 1981. Prior to that time, Mierstein had worked for eight years for the Orange County School Board. For three years, while he was with the School Board, Mierstein repaired playground equipment and gates. Welding duties were approximately 60 percent of his work time. While working for the Department, Mierstein worked with heavy equipment and mowing equipment. His welding duties were approximately 50 percent of his time. In addition, Mierstein's other duties involved rebuilding transmissions and engines on this equipment. While with the Department, Mierstein's welding duties had increased from 40 percent of the time to 60-to-70 percent of the time after the incumbent left the position of welder.

   
   

9. The Bronsons spoke separately with Mierstein about the welding position, but, because of their knowledge of his welding work and their familiarity with his work habits, they did not conduct a formal interview.

10. The Petitioner was interviewed by W. O. Downs, Sid Bronson, and C. P. Bronson. After the interview, Downs and the Bronsons met together and collectively arrived at a numerical rating of the Petitioner's scores in each of the nine categories reflected on the Department's Applicant Selection Guide. These categories included qualifying minimum training and experience, communication skills, motivation and interest in position, interpersonal relationships, appearance, knowledge and skills of occupational subject, education, planning and organizational skills, and ability to accomplish assignments.

    
    

11. W. O. Downs never participated in an interview of Mierstein. Mierstein's scores on the Applicant Selection Guide were arrived at between C.

    P. and Sid Bronson; therefore, although the Petitioner's Exhibit 2-A indicates that all three individuals interviewed Mierstein, the evidence reflects that Mierstein was never formally interviewed by W. O. Downs.

    
    

12. Pete Bronson, shop foreman of the Orlando Maintenance Yard, regularly encouraged his employees to seek promotion. He also assisted his employees in filling out their applications and obtaining eligibility for promotion. In the case of Mierstein, Pete Bronson spoke with a supervisor in the Orange County School Board maintenance system about Mierstein's work as a welder, specifically the amount of time Mierstein spent welding in his position with the School Board. This conversation took place before Mierstein filed his second application. This information was reported to John Dollar, former maintenance engineer for the Department of Transportation. . . .

    
    

13. Two days prior to Mierstein's promotion to the position in question on February 10, 1982, Dollar telephoned the Department's district personnel director, Susan Bickley to obtain a certification of eligibility for Mierstein.

    
    

14. Ms. Bickley telephonically approved Mierstein's training and experience based upon Dollar's representation that Mierstein had spent 60 percent of his time with the School Board performing welding duties. Based upon Mierstein's performance with the School Board for over three years and with the Department of Transportation for seven months, Ms. Bickley determined that Mierstein had over a year's experience in welding and therefore was eligible for the position. Ms. Bickley was authorized to certify applications for noncompetitive positions.

    
    

15. In addition to his duties as a welder, Mierstein had experience in mechanical repairs upon the various pieces of equipment used by the Department and maintained at the shop.

    
    

16. Ms. Bickley also provided certain information concerning the Department's hiring practices. The Department has a conciliation agreement with the FHWA to hire 50 percent minority employees in all new hiring situations. In fiscal year 1981-82, 50 percent of all new hires were minorities, and in fiscal year 1982-83, 55 percent were minorities (not including female employees).

    
    

17. The Department had an Upward Mobility Program as set forth in Rule 14- 17.06, Florida Administrative Code. This policy provided that the Department should give priority to Department employees when they applied for a position.

    
    

18. The Petitioner was not hired as a result of Mierstein's promotion into the vacant position.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties of this proceeding pursuant to Section 120.57(1), Florida Statutes, and Rules 9D-9.08(5) and 9D-8.16(2)f Florida Administrative Code.

    
    

20. As stated above, the sole issue presented is whether the Respondent Department is guilty of discrimination in its employment practices based upon the Petitioner's race in denying him employment in the basic position of welder.

    
    

21. In the case of McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 002 (1973), the Supreme Court of the United States set forth the requirements for a primafacie 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.

    
    

22. Clearly, the Petitioner in this cause has established that he is a member of a protected minority, that he applied and was qualified for the position of welder as advertised by the Department of Transportation, and that he was rejected despite his qualifications. Concerning the fourth requirement, the facts are reasonably clear that the first advertisement closed prior to the time the Petitioner filed his application, which was before the Department readvertised the position. It is clear that Mierstein's application had not been filed at that time. Because no one has clarified the Department's options under these circumstances, it is deemed that the fourth requirement has been met. The Petitioner, having made the foregoing showing, has established a prima facie case of discrimination.

    
    

23. The Department has articulated a lawful reason for employing Mierstein, to wit: the requirement to adhere to its rules to promote from within. In addition, the record reflects that Mierstein had significant experience in welding on the type of equipment being used by the Department and in the mechanical repairs to such equipment. Although the Petitioner had exceptional qualifications, both applicants were qualified.

    
    

24. The burden ultimately rests upon the Petitioner to show that the proferred reasons for the Petitioner's rejection were a pretext. The record reflects that Mierstein had worked for the Department for seven months, was certified eligible in accordance with DOT policy, and that his work was satisfactory to his superiors. At the time, Mierstein was performing the duties of the position of welder. There were reasonable, legitimate, non- discriminatory reasons for the Department's promotion of Mierstein into the position of welder.

    
    

25. The Petitioner has failed to carry his ultimate burden of establishing by a preponderance of the evidence that the reasons articulated by the Respondent Department were not its true reasons for rejecting the Petitioner but were a pretext or a cover-up for a discriminatory motive.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order

denying the Petition for Relief from an Unlawful Employment Practice and dismissing Petitioner's complaint of discrimination.

DONE and RECOMMENDED this 6th day of December, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1983.

COPIES FURNISHED:

Harry L. Lamb, Jr., Esquire 738 West Colonial Drive Post Office Box 7085-A Orlando, Florida 32854

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street, MS-58 Tallahassee, Florida 32301

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303

Docket for Case No: 83-001049

Orders for Case No: 83-001049