STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE F. CARTER, )

)

Petitioner, )

)

vs. ) Case Nos. 85-1645

) 85-1667

FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in these two consolidated cases on February 27 and 28, 1986, in Jacksonville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows at the hearing:

For Petitioner: Mr. George F. Carter, pro se

Post Office Box 17949 Jacksonville, Florida 32216

For Respondent: Paul R. Ezatoff, Esquire

Deputy General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

At the final hearing Petitioner called as witnesses Jeremy Tyler and Timothy Deuerling. Petitioner also testified on his own behalf. Petitioner offered numerous exhibits at the hearing. Petitioner's exhibits of the following numbers were received in evidence: 6, 7, 15, 16, 27, 28, 29A, 29B, 29C, 29D, 30, 30A, 31,

33, 33A, 33B, 35, 37, and 45. Petitioner's exhibits of the

following numbers were rejected: 1, 2, 3, 4, 5, 8, 9, 10, 11,

12, 13, 19, 28B, 34, 38, and 39. Three deposition transcripts offered by Petitioner were also rejected as exhibits.

Petitioner's exhibit number 14 was withdrawn. Respondent called Jerome Rogers as a witness and offered exhibits numbered 1 through 12, 12A, and 13 through 21, all of which were received in evidence. At Respondent's request, the Hearing Officer took

official notice of Rule 17-10, Florida Administrative Code, and of an order of the Career Service Commission in Case No. 83-113 rendered January 9, 1986.

At the close of the hearing the parties requested and were granted three weeks within which to file their post-hearing submissions with the Hearing Officer. Petitioner filed post- hearing documents titled Suggested Stipulations For Settlement and Summary Of Appellant's Presentation. Respondent filed a post-hearing document titled Respondent's Proposed Recommended Order. The parties' post-hearing documents have been carefully considered in the preparation of this Recommended Order.

Specific rulings on the parties' proposed findings of fact are included in the Appendix which is attached to and incorporated into this Recommended Order.

ISSUES

In two separate Petitions For Relief From An Unlawful Employment Practice, Petitioner, George F. Carter, alleges that Respondent, State of Florida, Department of Environmental Regulation (DER), discriminated against Petitioner on the basis of his age and as retaliation for his previous filing of a complaint alleging age discrimination by DER. Petitioner alleges that as a result of the discrimination and retaliation, Petitioner was not chosen for various positions for which he applied and was given performance evaluations lower than he deserved. DER's position is that there are legitimate, non- discriminatory reasons for the actions Petitioner complains of, and that these reasons are not pretextual.

FINDINGS OF FACT

Based on the testimony of the witnesses at hearing, on the exhibits received in evidence, and on the stipulations of the parties, I make the following findings of fact.

Findings based on stipulations

1. Petitioner, George R. Carter, is an-employee of DER in the Northeast District Office in Jacksonville, Florida. Petitioner became an employee of DER after its creation in 1975. He was first employed as a Field Inspector (Position No. 0532). He was previously employed by the Board of Trustees of the Internal Improvement Trust Fund and by the Department of Agriculture.

   
   

2. On January 3, 1977, Petitioner took a voluntary demotion (deleting lead worker status) to transfer from the Gainesville office to the Jacksonville Office (Position No. 0097).

3. On June 15, 1977, Petitioner was promoted to an Environmental Specialist I position (0097) when his Pollution Control Specialist position was deleted.

   
   

4. On May 16, 1980, Petitioner was promoted to an Environmental Specialist II position (No. 0532). At that time Petitioner was given a 10% salary increase.

   
   

5. On March 1, 1982, Environmental Specialist II positions were reclassified by the Legislature as Environmental Specialist

   I. Petitioner was placed into the new class and given a salary increase.

   
   

6. On October 21, 1982, Petitioner received a written reprimand for taking unauthorized leave.

   
   

7. On July 1, 1985, Petitioner was voluntarily assigned to another ESI position (00597) in Jacksonville. On February 20, 1986, Petitioner was voluntarily reassigned to another ESI position (00524) in Jacksonville.

   
   

   The rest of the findings

   
   

8. Petitioner was born February 1, 1915. On January 11, 1980, Petitioner filed a complaint with the Florida. Commission on Human Relations in which he asserted that DER had discriminated against him because of his age. On August 2, 1982, Petitioner filed a complaint with the Florida Commission on Human Relations in which he asserted that DER had discriminated against him because of his complaint of January 11, 1980.

   
   

9. On October 19, 1976, Petitioner received a written reprimand for: (1) falsification of timekeeping records, (2) unauthorized use of a state vehicle, and (3) unauthorized leave.

   
   

10. Petitioner was suspended without pay April 27 through April 29, 1983, for insubordination. The suspension was upheld by order of the Career Service Commission dated January 7, 1986. Petitioner has appealed the suspension to the Duval County Court.

    
    

11. Petitioner's principal claim of age discrimination concerns his non-selection for an Environmental Specialist II position (No. 00354) in Tallahassee in 1978. Petitioner filed a grievance with DER alleging age discrimination. DER investigated the grievance and then dismissed it as unwarranted. The State Personnel Director adopted the DER recommendations and conclusions. Petitioner appealed the State Personnel Director's decision to the Career Service Commission, which assigned the case Docket No. 79-58. By order dated September 21, 1979, the

    Career Service Commission sustained the decision of the State Personnel Director that Petitioner's complaint of age discrimination was without foundation.

    
    

12. In addition to that specific complaint, Petitioner broadly contends that he has been discriminated against because of his age by DER's failure to hire him for a large number of other positions for which he applied, which positions are listed on Petitioner's Exhibit No. 33A. The only basis for this aspect of Petitioner's charge of discrimination is that a younger person was chosen to fill each position.

    
    

13. In 1979 Petitioner filed a grievance with DER alleging age discrimination regarding the positions listed in Petitioner's Exhibit No. 33A. DER investigated the charges. The investigation included an examination of interview summaries from twenty-three of the positions for which Petitioner applied. DER concluded that there was no evidence of age discrimination in the selection process. During the course of the investigation Petitioner admitted that age was never mentioned when he was interviewed for the positions.

    
    

14. Most of the positions for which Petitioner applied were high level positions which would have involved several steps of promotion for Petitioner. It is unusual for a person in DER to be so quickly promoted without working his way through the ranks. It is a legitimate consideration when hiring a person to look at his pattern of application for positions. If a person applied for a broad range of positions without an apparent sincere interest, that would weigh negatively against the indiscriminate applicant. The positions for which Petitioner applied were in widely varied fields, e.g., hazardous waste, solid waste, dredge and fill, potable water, groundwater, coastal zone management, limnology, noise control, domestic and industrial wastewater, water analysis, water resources restoration, grant coordination, enforcement, and quality assurance. DER could have legitimately concluded that Petitioner was indiscriminately applying for positions and weighed this against Petitioner when making its selection decisions.

    
    

15. Petitioner claims to have a Ph.D. degree in Biology from Pacific Southern University in Seattle, granted in 1976 while Petitioner was employed by DER in Gainesville, Florida. Petitioner's applications formerly listed a Ph.D. and Petitioner attached a copy of his supposed degree. Petitioner's current resume does not include a copy of his degree and notes that PSU is unaccredited. Searches by DER in 1977 and 1978 were unable to confirm the existence of PSU. The address listed on Petitioner's transcript was at the time of the search occupied by Marcia's Steno and Message Center. According to Petitioner, after

    discovering that PSU was unaccredited, Petitioner changed his resume to reflect that fact. Falsification or misrepresentation of credentials on an employment application can properly be a negative consideration when making a personnel decision. DER could have appropriately used this information in deciding to not promote Petitioner.

    
    

16. An employee's history of adherence to established policies and procedures is a valid consideration when making personnel decisions. DER could reasonably have considered Petitioner's disciplinary history when making personnel decisions concerning Petitioner. Petitioner's disciplinary history would be particularly relevant to the supervisory positions he sought.

17. Since 1980 the Petitioner has received the following performance evaluation ratings:

    
    

    September 1, 1980 to August 31, 1981:	6.86
    September 1, 1981 to August 31, 1982:	5.6
    August 31, 1982 to July 14, 1983:	4.14
    July 14, 1983 to September 1, 1983:	4.93
    September 1, 1983 to August 31, 1984:	5.1
    September 1, 1984 to June 30, 1985:	6.0

    
    

18. Petitioner was rated by the same supervisor, Jeremy Tyler, from 1980 through 1985. Mr. Tyler explained that Petitioner's initial evaluation was fairly high because he had not known Petitioner for a long time and had not had a good opportunity to appraise his work. Mr. Tyler explained that he lowered Petitioner's ratings in subsequent evaluations so that they accurately reflected Petitioner's performance in relation to his co-workers. This method of rating Petitioner was in accord with a memorandum from the Secretary of DER in 1981 requiring that performance evaluations be fair and accurate, and that outstanding evaluations be given only in instances of truly outstanding work.

    
    

19. Petitioner has been a good employee and has done acceptable work, but he has not been an outstanding employee. Petitioner's performance evaluations accurately reflect his performance. All of Petitioner's evaluations fall into the satisfactory or above satisfactory categories, (or, for the 1985 evaluation, the "achieves performance standards" category) except for the special evaluation of 4.14 which was triggered by the incident of insubordination which led to Petitioner's suspension. DER's Internal Management Policies and Procedures Manual explains that "Achieves Performance Standards" means "fully satisfactory performance or 'a job well done.'" The policy manual recognizes that the majority of the workforce should receive this rating.

    
    

20. Some employees in similar positions did less work than Petitioner or performed their work in a less timely manner than Petitioner, but had performance ratings higher than Petitioner. This was because Petitioner's supervisor attempted to evaluate his employees relative to each other based on their total performance, not on just one facet of their performance. While some employees performed fewer inspections than Petitioner, their inspections were more complex and demanded more time. While some employees were habitually late with their inspection reports, the high quality of their reports compensated for their untimeliness and the reports were never so late as to prejudice DER. With each employee's performance taken as a whole, Petitioner's performance evaluations were fair and accurate.

21. Petitioner is openly disdainful of authority. He frequently questions the decisions and policy choices of his supervisor and even of the Secretary of DER. In the incident that led to Petitioner's suspension for insubordination, Petitioner admitted that he wrote a letter (stating that DER would not allow development on a piece of property) in order to help a private individual escape a contract which Petitioner determined was fraudulent. Such a letter was not authorized by Petitioner's superiors, but Petitioner wrote it because he felt that it was the proper thing to do. Petitioner will frequently independently evaluate a situation and do what he believes is right, regardless of whether such action is authorized or in accordance with agency policy. Additionally, Petitioner claims, with sincerity. that he is an expert in a multitude of fields, although his claims of expertise have not been borne out by his performance or the observations of his superiors. Petitioner's broad claims of expertise reduce his credibility when he is being considered for positions, even when Petitioner actually may be competent in the subject matter of the position under consideration. Further, Petitioner is overly considerate of the needs and desires of the public, bending and breaking the rules as he feels is appropriate in order to aid members of the public seeking permits from DER. Petitioner does not apologize for his unauthorized and improper actions (such as doing construction drawings for applicants or requesting information by telephone instead of in Writing as required by DER rules); rather, Petitioner takes pride in helping citizens avoid the bureaucratic "red tape."

22. DER has not discriminated against Petitioner on the basis of his age, nor has DER retaliated against Petitioner because of his having filed a discrimination charge against DER. DER has had legitimate, non-discriminatory reasons for denying promotions to Petitioner, and those reasons have not been pretextual. Petitioner's performance evaluation ratings have been fair and do not reflect discrimination or retaliation against Petitioner in any way.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

24 Section 760.10(1), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person with respect to compensation, terms, conditions, or privileges of employment because of such individual's age.

1. Section 760.10(7), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate

   against a person because that person has opposed an unlawful employment practice or because that person has made a charge under Chapter 760, Florida Statutes.

   
   

2. Discrimination denotes disparate treatment, i.e., that the employer treated older employees differently than younger ones were treated or that the employer treated employees who filed discrimination charges differently than employees who did not file charges were treated. In a discrimination case the Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate reason for the Petitioner's disparate treatment. Should Respondent carry this burden, Petitioner must then have an opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not his true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

   
   

3. To present a prima facie case, Petitioner must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254. The prima facie case serves to eliminate the most common non-discriminatory reasons for the Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and n. 44, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).

   
   

4. In order to establish a prima facie case Petitioner must show: (1) that he is in a classification covered by Section 760.10; (2) that he performed his assigned duties satisfactorily; and (3) that despite his satisfactory performance he was treated in a discriminatory manner. Cf. McDonnell Douglass Corp. v. Greene, 441 U.S. 792, 93 S.Ct. 1817, 37 L.Ed.2d 668 (1973).

   
   

5. Consideration of the evidence here presented in the light most favorable to Petitioner shows that Petitioner was hired by DER when he was 60 years old; that he has been twice promoted, including a promotion in 1980 after having filed grievances in 1977 and 1979; that he has received regular salary increases; that he has at his request been transferred to other positions (twice since July of 1985); that, except for one special evaluation related to an incident of insubordination, he has consistently received evaluations at least at the satisfactory level: and that he has been disciplined on three occasions for violations of DER policies and procedures.

   
   

6. Petitioner has not established that his age or his act of filing an age discrimination charge with the Florida

   Commission on Human Relations in any way influenced the personnel decisions made by DER. The fact that Petitioner was 60 years old when hired and 66 years old when last promoted is strong evidence that DER has not discriminated against him because of his age.

   Petitioner admitted that age was never mentioned in any of the interviews for positions for which he applied. The feet that Petitioner was promoted in May of 1980 is strong evidence that there was no retaliation for his filing of an age discrimination charge, especially when coupled with the fact that Petitioner's only below satisfactory performance rating coincided with a proven incident of insubordination, and not with the filing of an age discrimination charge.

   
   

7. In brief summary, the evidence in this case simply fails to establish that DER discriminated against Petitioner because of his age or because of his having filed a complaint alleging discrimination. Accordingly, it is concluded that Petitioner has failed to establish a prima facie case of discrimination.

   
   

8. In any event, even if Petitioner had succeeded in establishing a prima facie ease of discrimination, DER has articulated and substantiated legitimate, non-discriminatory reasons for the personnel actions complained of by Petitioner and the Petitioner has presented no persuasive evidence that the articulated reasons are a pretext for discrimination because of age or because of Petitioner's having filed a complaint of discrimination.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing both of the Petitions For Relief filed by George F. Carter.

DONE AND ORDERED this 12th day of May, 1986, at Tallahassee, Florida.

4

MICHAEL M. PARRISH, 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 12th day of May, 1986.

COPIES FURNISHED:

Mr. George F. Carter Post Office Box 17949

Jacksonville, Florida 32216

Paul R. Ezatoff, Esquire Deputy General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Donald A. Griffin, Executive Director Florida Commission on Human Relations Building F Suite 240

325 John Knox Road Tallahassee, Florida 32303

Dana Baird, Esquire

Florida Commission on Human Relations Building F Suite 240

325 John Knox Road Tallahassee, Florida 32303

Ms. Betsy Howard, Clerk

Florida Commission on Human Relations Building F Suite 240

325 John Knox Road Tallahassee, Florida 32303

APPENDIX

The following are my specific rulings on the proposed findings of fact contained in the post-hearing submissions of the parties.

Rulings on Petitioner's proposed findings

Petitioner's post-hearing document titled Suggested Stipulations For Settlement does not contain any proposed findings of fact. Accordingly, no specific rulings on proposed findings of fact are addressed to that document.

Petitioner's post-hearing document titled Summary Of Appellant's Presentation contains a mixture of Petitioner's factual contentions, legal contentions, conclusions, and arguments, all of which are substantially intertwined. A large number of Petitioner's comments in the subject document are irrelevant to the issues to be decided in these consolidated cases. Similarly, much of what is included in Petitioner's post- hearing summary consists of subordinate details and unwarranted conclusions.

Addressing first the top half of the first page of the summary, the factual contentions in the first three numbered paragraphs are rejected as contrary to the greater weight of the evidence and as in large part not supported by competent substantial evidence. The unnumbered paragraph addressing low morale is rejected for several reasons, including being irrelevant to the issues in this case and not supported by competent substantial evidence.

With regard to the contentions at the bottom half of page one and at the top of page two to the effect that Petitioner is an "outstanding employee," the greater weight of the evidence supports a finding that Petitioner is on the whole a good employee or a satisfactory employee, but not an outstanding employee. While Petitioner certainly has some outstanding qualities, he has also displayed characteristics which detract from his job performance. Some of these characteristics are summarized in DER Exhibit No. 11. Other characteristics which contraindicate classification of Petitioner as an outstanding employee are reflected in the incidents described in the findings of fact which led to disciplinary action against Petitioner.

With regard to the contentions on page two of Petitioner's summary to the effect that his evaluation was unjust, the following are my specific rulings on each of the paragraphs related to that topic.

Paragraph number one is rejected because it is in part inconsistent with the greater weight of the evidence. Further it fails to take into account the quality of work, which is a major factor in evaluations.

Paragraphs number two, three, four and five are rejected because they are for the most part irrelevant. They contain inferences not warranted by the evidence and are not supported by persuasive competent substantial evidence.

The unnumbered paragraph at the bottom of page two is rejected as constituting argument rather than proposed findings, as not supported by competent substantial evidence, and as constituting inferences not supported by the evidence.

With regard to the contentions on pages three and four of Petitioner's summary on the subject of the alleged pattern of harassment, discrimination, reprimand, and reprisal, the following are my specific rulings on each of the paragraphs related to that topic.

Paragraph number one is rejected as not supported by persuasive competent substantial evidence.

Paragraph number two is rejected as not supported by competent substantial evidence.

Paragraph number three is rejected as not supported by competent substantial evidence.

Paragraph number four is accepted in part and rejected in

part. The first sentence is accepted. The second sentence is rejected as irrelevant and as not supported by competent substantial evidence.

Paragraphs number five and six are rejected as irrelevant, as not supported by competent substantial evidence, and as inconsistent with the greater weight of the evidence.

Paragraph number seven is rejected as not supported by competent substantial evidence.

The top two unnumbered paragraphs on page four are rejected as contrary to the greater weight of the evidence.

Paragraph number six at the top of page four is accepted.

With regard to the contentions on page four of Petitioner's summary under the caption "REPRISALS," the following are my specific rulings on each of the paragraphs related to that topic.

The first unnumbered paragraph under the subject caption is rejected as not supported by competent substantial evidence.

Paragraph number one is rejected as subordinate and as irrelevant in light of other more persuasive evidence as to why Petitioner was not promoted or given higher evaluations.

Paragraph number two is rejected because it consists of conclusions not warranted by the evidence, is not supported by persuasive competent substantial evidence, and is for the most part irrelevant to the issues in this case.

With regard to the contentions on page four and five of Petitioner's summary under the caption "DISCRIMINATION," the following are my specific rulings on each of the paragraphs related to that topic.

The first unnumbered paragraph under the subject caption is rejected because the first sentence is irrelevant standing alone and the second sentence is not supported by competent substantial evidence and incorporates inferences not warranted by the evidence.

Paragraph number one is accepted in part and rejected in part. The substance of the first two sentences is accepted. The last three sentences are rejected as irrelevant in light of other evidence in the record.

Paragraphs number two, three, and four are rejected as irrelevant in light of other evidence in the record.

Paragraph number five is rejected because it includes conclusions not warranted by the evidence and is not supported by persuasive competent substantial evidence.

Paragraph number six is rejected as irrelevant in light of other evidence in the record.

The paragraphs on pages five and six under the caption "PROTEST AND SUGGESTION ON HANDLING OF GRIEVANCES" do not

constitute proposed findings of fact.

Rulings on Respondent's proposed findings Paragraphs 1 through 11 of Respondent's proposed findings

are accepted.

Paragraph 12 is rejected because it is a discussion of the issues rather than a proposed finding of fact.

Paragraphs 13, 14, 15, 16, and 17 of Respondent's proposed findings are accepted.

Paragraph 18 is for the most part rejected as redundant or as constituting argument rather than proposed findings.

The substance of paragraphs 19, 20, and 21 is accepted.

Paragraph 22 is rejected because it is a discussion of the issues rather than a proposed finding of fact.

The substance of paragraphs 23, 24, and 25 is accepted with the exception of certain gratuitous editorial comments.

Docket for Case No: 85-001645

Orders for Case No: 85-001645