Culpepper and William H. Milton as his witnesses. Petitioner offered Petitioner's Exhibits 1 through 9, which were received into evidence. Respondent called Alan Potter, Billy Miles, and Joseph A. Alfes as its witnesses. Respondent offered Respondent's Exhibits 1 through 9, which were received into evidence.
Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.
Petitioner has been employed with the Florida Department of Transportation since 1971. He is a graduate of the University of West Florida, with a degree in business management. Petitioner is 38 years old, with a physical disability which limits his use of his left hand and arm, and his left leg is shorter than his right.
In 1979, Petitioner was employed by Respondent in its right-of-way section, as a Right-of-Way Agent III. In that position, he was responsible for the coordination of the Acquisition, Relocation and Property Management sections of Respondent's District III. One of Petitioner's subordinates was H. E. Walls, who was in charge of the Acquisition section. Petitioner's immediate supervisor was J. F. Culpepper, Assistant Right-of-Way Administrator.
In April, 1980, a new Right-of-Way Administrator, J. A. Alfes, was assigned to District III. In 1980, and again in 1981, Petitioner filed charges of discrimination against Respondent with the Florida Commission on Human Relations premised upon Petitioner's aforementioned disability. The 1980 charge was resolved through the entry of a settlement agreement. The charge filed in 1981 was premised upon the same disability, but that charge was ultimately dismissed by the Florida Commission on Human Relations.
In January, 1981, a hearing was held in Tallahassee, Florida, on one of the charges of discrimination filed by Petitioner. On the day following that hearing, Petitioner was called into Mr. Alfes' office in Chipley, Florida, and was told that the hearing held in Tallahassee had been several hours of "horse shit."
On May 18, 1981, Mr. Alfes advised Petitioner of an impending reorganization of the section in which Petitioner was employed.
Subsequently, on June 17, 1981, Mr. Alfes told Petitioner that there would be "consequences" as a result of Petitioner's having filed complaints with the Florida Commission on Human Relations.
In 1981 a reorganization of functions occurred in all six districts statewide of DOT. This reorganization eliminated one classification of position, Right-of-Way Agent III, which Petitioner had held in District III, and elevated the positions at the head of Acquisition and Relocation sections to the administrator level.
At the time this reorganization occurred, Petitioner, as previously mentioned, was a Right-of-Way Agent III, and Herbert Walls headed the Acquisition section. Mr. Alfes, Petitioner's immediate superior, recommended that Petitioner be placed in charge of Relocation, and that Mr. Walls, who had been working in Acquisition, be placed in charge of the Acquisition section in light of his experience in that area since 1978. J. F. Culpepper, who occupied the position on DOT's organization chart to whom the Acquisition section, Relocation section, and Property Management section would report, recommended that the Petitioner be placed in charge of the Acquisition section, based upon his belief that Petitioner was better qualified by reason of his real estate training and college degree. Mr. Walls had only a high school diploma.
During the period of his employment with DOT, Petitioner had not handled any complete right-of-way acquisition matters, and had never negotiated for DOT in the acquisition of any right-of-way parcels. Petitioner had,
however, attended two relocation seminars while employed by DOT. Mr. Walls had been continually engaged in acquisition work for DOT since at least 1978.
DOT's District Engineer, Alan Potter, was the DOT employee ultimately responsible for selecting the heads of the Acquisition and Relocation sections. Mr. Potter concurred with the recommendation that Petitioner be placed in charge of the Relocation section, based upon his belief that it was the most important job involved in right-of-way acquisition, and that it required a very thorough and cautious person. Based upon Mr. Potter's evaluation of Petitioner as possessed of high ability, and being very mature and compassionate, Petitioner was placed in charge of the Relocation section.
At the time Petitioner was named as head of Relocation and Mr. Walls was placed as head of Acquisition, the two positions were both classified as Right-of-Way Specialist II's, pay grade 22. Later both were reclassified as Right-of-Way Administrator I's, at pay grade 23. The record in this cause establishes that neither position was more prestigious" than the other, or that either position placed the individual holding it in a more favorable posture for promotion or advancement.
Subsequently, in the summer of 1981, the reorganization of DOT was completed, with Mr. Walls having been appointed head of Acquisition, with approximately six subordinates. Petitioner became responsible for Relocation, and shared the supervision of a clerical employee with the head of Property Management. After reorganization, Mr. Alfes relocated Petitioner's office in another building 100 feet away from the main office. Petitioner's office was initially located in a passageway and, as a result, Petitioner was required several times a day to make trips to the main building to obtain files necessary to complete his work. In August of 1983, prior to final hearing in this cause, Mr. Alfes retired, and Petitioner's office was relocated in a more spacious office close to the Acquisition section.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.
The Florida Commission on Human Relations is charged with the duty of enforcing the Human Rights Act of 1977, codified at Sections 760.01 through 760.10, Florida Statutes.
Section 760.10(7), Florida Statutes, provides, in pertinent part, that:
It is an unlawful employment practice
for an employer . . . to discriminate against any person because that person has
opposed any practice which is an unlaw- ful employment practice under this sec- tion, or because that person has made a charge, testified, assisted, or par-
ticipated in any manner in an investiga- tion, proceeding, or hearing under this section.
The Florida Department of Transportation is an "employer" within the meaning of Section 760.02(6), Florida Statutes, and is thereby subject to the requirements of the Human Rights Act of 1977.
The Human Rights Act of 1977 was patterned after, and contains language markedly similar to, that contained in Title VII of the Federal Civil Rights Act of 1964, as amended. Thus, as pointed out by the court in Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 4th DCA 1977):
If a Florida Statute is patterned after a Federal Law, on the same
subject, it will take the same construc- tion in the Florida courts as its proto- type has been given in Federal courts, insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject.
Thus, in Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089 (1981), the Supreme Court of the United States, in construing Title VII of the 1964 Civil Rights Act, 42 U.S.C. Section 2000e, et seq., pointed out that:
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 prepon- derance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving this prima facie case, the burden shifts
to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection' . . . Third, should the defendant carry the burden, the plaintiff must then have an opportunity to prove by a preponder-
ance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination . . . 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 per- suading the tryer of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. . .
. . . We have stated consistently that the employee's prima facie case of dis- crimination 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 tryer 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 the instant case, Respondent has demonstrated legitimate nondiscriminatory reasons for Petitioner's not having been placed in charge of the Acquisition section in District III, and has therefore overcome any circumstantial evidence from which it could be concluded that awarding that position to his subordinate was accomplished in violation of Section 760.10(7), Florida Statutes. Further, although it is clear that Petitioner's immediate supervisor, Mr. Alfes, harbored resentment toward Petitioner as a result of Petitioner's claims filed with the Florida Commission on Human Relations, there has been no direct causal connection established between the opinion of Petitioner held by Mr. Alfes, and the decision made by DOT personnel in superior positions to Mr. Alfes to place Petitioner's subordinate in charge of the Acquisition section. Mr. Alfes' role in this decision was advisory only, and there was no showing that the ultimate decision makers in the DOT hierarchy were at all affected in their decision by Petitioner's having filed complaints with the Florida Commission on Human Relations.
