STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DORIS E. LEITZ, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2563

) DEPARTMENT OF STATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer, on January 7, 1987, in Tallahassee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Doris E. Leitz, pro se

4015 Buster Road

Tallahassee, Florida 32304

For Respondent: Thomas G. Tomasello, Esquire

General Counsel Department of State The Capitol, LL10

Tallahassee, Florida 32399

This cause arose on the filing of a Petition for Relief with the Florida Commission on Human Relations concerning alleged discrimination against the Petitioner on account of her age. Specifically, the Petitioner complaints of not being hired for a job as an archivist with the Respondent, Department of State (Department) and that, instead, the job she sought was awarded to a younger person. The Petitioner alleges she was thus discriminated against on account of her age. After investigation and a determination of "no cause," the matter was ultimately referred to the Division of Administrative Hearings and the undersigned Hearing Officer. At the hearing the Petitioner presented her own testimony and that of. David Leitz, her son, as well as offering two exhibits which were admitted into evidence. The Respondent presented the testimony of Gerard Clark, Jay Kassees and Randall Kelly. The Respondent presented Exhibits 1-23, all of which were admitted into evidence.

At the conclusion of the hearing, the parties requested a transcript of the proceedings and availed themselves of the right to file Proposed Findings of Fact and Conclusions of Law. The parties waived the time constraints of Rule

28-5.402. The Proposed Findings of Fact and Conclusions of Law were timely submitted and treated in this Recommended Order as well as being addressed again in the Appendix attached hereto and incorporated by reference herein.

The issue to be resolved in this proceeding concerns whether the Petitioner failed to obtain employment and was discriminated against by the Department of State on account of her age.

FINDINGS OF FACT

1. On August 7, 1985, the Respondent, Department of State (Department) issued a job opportunity announcement (announcement number 85-150), whereby it expressed the intention to fill an employment position of "Archives Assistant" in its Division of Archives, History and Records Management. The qualifications for this position consist of a Bachelor's degree with a major in history, library science or one of the social sciences, or a Bachelor's degree and one year experience in the preservation or restoration of documents or materials. The degree in library science is a minimal requirement and is consistent with the minimum qualifications established by the Career Service class specifications prepared by the Department of Administration for the Archives Assistant class title. Twenty-two applicants who met these minimum qualifications applied for this position in response to this announcement. On August 20, 1985, the Respondent issued a second job opportunity announcement (announcement number 85-159) for this same position. The qualifications for this position obviously were the same as those specified in announcement number 85-150. The Respondent issued this second announcement in order to solicit applications from a broader range of applicants in order to fulfill its goal of finding the most qualified applicant for the position. As, a result of the second announcement, an additional 13 applicants meeting the minimum qualifications filed applications. Both job opportunity announcements required that all applicants submit a completed copy of the Florida Employment Application form to the Department in order to apply for the position. The Petitioner did not submit a completed application form, however, in a letter dated August 26, 1985, she submitted her resume to Mr. Randall Kelly, Director of the Division, wherein she expressed her desire to be employed in the vacant position at issue. The Respondent Department received the Petitioner's letter on August 27, 1986, one day before the deadline for filing applications related to the second employment announcement referenced above.

   
   

2. In spite of the fact that she had not submitted an application in the proper form and manner, the Petitioner was considered for the position of Archives Assistant by Gerard Clark of the Division of Archives, History and Records Management (Division). Mr. Clark was an Archivist Supervisor II at the time the position was advertised and was responsible for reviewing, screening and interviewing applicants for the position. He was responsible as well for selecting an applicant for the position and recommending an applicant selection to the Division Director, Mr. Randall Kelly. Mr. Clark interviewed nine of the

   35 eligible applicants. He did not interview the Petitioner because he was already familiar with her work and her qualifications since he had been her supervisor when she worked with the Division as an intern. It was the policy of the Respondent at times pertinent hereto not to interview every applicant, but to use the interview process to get to know applicants better and to determine the most qualified applicant. Since Mr Clark was already aware of the Respondent's quality of work and qualifications, he did not deem it necessary to interview her. She was considered an eligible candidate for the position, however.

   
   

3. The Petitioner had worked part time for the Division as an Archives Intern from May 1984 to July 1985. At that time she was a student at Florida State University in a Master's degree program within the History Department and received academic credit for her work with the Division. She also received

   monetary compensation for her internship from the Senior Community Service Employment Program, a federal grant program, during this time.

   
   

4. Ms. Nadine Doty-Tessell submitted an application for the subject position on August 19, 1985, and was also considered an eligible applicant by the Respondent. Mr. Clark ultimately selected Ms. Doty-Tessell as the most qualified applicant and recommended her hiring to Mr. Randall Kelly. Mr. Kelly accepted Clark's recommendation and hired Ms. Doty-Tessell for the Archives Assistant position. In a September 11, 1985 letter to the Petitioner, Mr. Kelly notified her that another applicant had been chosen. In an October 3, 1985 letter to the Petitioner, Mr. Jay Kassees also notified her of the selection of another candidate, as well as that the selection constituted the promotion of an employee within the agency.

   
   

5. After receiving this information, the Petitioner filed a charge of discrimination with the Equal Employment Opportunity Commission on October 29, 1985. She alleged she was denied this position because of her age, in violation of the Age Discrimination in Employment Act, 29 USC 621 et seq. On November 4, 1985, that Commission referred the charge of discrimination to the Florida Commission on Human Relations. On June 30, 1986, following an investigation, the Commission determined that no cause existed for the filing of the charge but, pursuant to its rules, ultimately referred the matter to the Division of Administrative Hearings because the Petitioner filed a Petition for Relief following the determination of "no cause." The case ultimately came on for hearing on the above date.

   
   

6. Ms. Doty-Tessell was a Library Technical Assistant I in the State Library of Florida within the Respondent's Division of Library Services since April 1983 and was so employed at the time she applied for the Archives Assistant position at issue. She has a Bachelor of Science degree in library science from Florida State University and was working in a Master's degree program in library science at F.S.U. She has since earned that Master's degree. From August 1981 to July 1982, Ms. Doty-Tessell acquired a full year of direct archival experience while employed as a Library Technical Assistant. She acquired this experience by arranging, appraising, indexing and describing the voluminous papers in the Mildred and Claude Pepper archival collection at the Florida State University Library. During her tenure as a Library Technical Assistant I with the Respondent's agency between April 1983 and August 1985, she acquired an additional 29 months of archivally related work which also served as a qualification for the position at issue. The Career Service system position description for a Library Technical Assistant I, which was the position formerly held by Ms. Doty-Tessell, describes the duties and responsibilities of that position as encompassing a thorough knowledge of reference materials and search methods, extensive searching experience, coordinating the State Library of Florida's flag collection, coordinating and maintaining the inter-library paperback collection and performing bibliographic searches. Mr. Clark's and Mr. Kassees' testimony establishes that these duties and responsibilities are "archivally related" and that they further qualified Ms. Doty- Tessell for the Archives Assistant position in terms of experience. Additionally, the duties and responsibilities in the Career Service position description for Archives Assistant are close parallels to those for Library Technical Assistant I.

   
   

7. In view of her work on the Pepper collection and her experience as a Library Technical Assistant, Ms. Doty-Tessell was established to have over 3 1/2 full time years of archival or archivally related experience upon her filing of her application for the subject position.

8. Although Petitioner alleged that she had worked for the Respondent from May 1984 to July 1985, that was not full time employment. During this time she worked for 14 months on a part time basis and thus acquired a total of 7 full time months of archival experience. She was not a salaried employee at this time.

   
   

9. Although the Petitioner received an excellent rating in her initial employment performance evaluation as an intern, her subsequent and final evaluation of March 28, 1985 showed that her performance had declined to a satisfactory level. During the rating periods between April 1983 and April 1985, Ms. Doty-Tessell received three outstanding evaluations, the highest evaluation in the Career Service performance evaluation system at that time.

   
   

10. It was established by the testimony of Mr. Kassees that the Respondent has a consistently followed, written policy to accord first consideration for open positions to employees within the Department of State who are qualified for promotion to vacancies. Under this policy, where two or more applicants are equally qualified and one is eligible for promotion, that applicant is accorded first consideration since that applicant is already entitled to a promotion. This policy is based in part on the master contract between the State of Florida and various unions which represent State employees. Ms. Doty-Tessell was shown to be qualified for promotion and to have been an employee .of the Department at the time the position was advertised and at the time she applied for it. The Archives Assistant position at issue constituted a promotion for her.

    
    

11. Both the Petitioner and Ms. Doty-Tessell had comparable educational qualifications for the position, but Ms. Doty-Tessell was more qualified than the Petitioner because she had more archival and archivally related experience and had received superior performance evaluations to those of the Petitioner.

    
    

12. In a letter Petitioner wrote on July 10, 1985 to the Secretary of State, she expressed significant criticism of the Division and her supervisor regarding her tenure as an intern with the Division. She accused fellow workers of being "gold brickers who waste time, giggle and walk aimlessly in the halls." She complained that their supervisor, Mr. Clark, was arrogant toward her. Mr. Clark testified that the Petitioner's critical comments about him and other employees in the Division concerned him and were an additional factor in his decision not to hire her because he was concerned about her ability to get along with her fellow workers, as well as him.

    
    

13. Both Mr. Clark and Randall Kelly selected Ms. Doty-Tessell for the subject position because she was the most qualified candidate and she was further given first consideration because she was already employed by the agency and was qualified for promotion. Both Mr. Clark and Mr. Kelly testified that their hiring of Ms. Doty-Tessell was not related to her age or the Petitioner's age. Ms. Doty-Tessell was 26 years of age at the time of her hiring and the Petitioner was 59 years of age.

    
    

14. Although the Petitioner testified she was upset and humiliated because she was not selected for the position, she did not offer any testimony which substantiates her allegation that she was not selected on account of her age.

    At the time the Respondent hired Ms. Doty-Tessell there were 48 employees out of

    133 employees in the Division who were 40 years of age or older. This represents 36 percent of the total staff of the Division. At the same time, 31 percent of the 13 employees in the Bureau of Archives were 40 years of age or older.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has juris- diction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes, and Section 22T-9.08, Florida Administrative Code.

    
    

16. Florida appellate decisions in cases arising under Chapter 760, Florida Statutes, have construed it as being similar to its federal counterpart. See School Board of Leon County vs. Hargis, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981); Pasco County School Board vs. Florida Public Employees' Relations Commission, 353 so.2d 108 (Fla. 1st DCA 1977). The burden of proof standard for cases arising under the Civil Rights Act of 1964 has been held applicable to cases arising under Chapter 760, Florida Statutes (1985). Those standards were enunciated in MacDonald- Douglas Corp. vs. Greene, 411 US 792 (1973), and Texas Department of Community Affairs vs. Burdine, 450 US 248 (1981). Under those decisions, as modified by the case of Lee vs. Russell County Board of Education, 684 Fed.2d 769 (11th Cir. 1982), the employee or the person claiming employment discrimination has the initial burden of establishing a prima facie case. That burden has been met herein in that the parties have stipulated that the Petitioner has established a prima facie case of age discrimination. That is, the Petitioner was qualified for the position applied for, but was not hired and a person outside of the protected class of applicants over 40 years of age was hired in her stead. If the Petitioner meets this initial burden of establishing a prima facie case, the burden of going forward with evidence to articulate a legitimate, non-discriminatory reason why the Petitioner was not hired shifts to the employer- Respondent. Only the burden of going forward with evidence shifts to the employer, however, not the ultimate burden of persuasion in the case. That burden remains with the Petitioner. Texas Department of Community Affairs vs. Burdine, supra. at 254- 6. Thus, one must consider whether the Respondent offered an explanatory defense of a legitimate non-discriminatory reason for the hiring decision at issue. If the employer carries the burden of showing that there was a non-discriminatory reason for its hiring decision herein, then the Petitioner must prove by preponderance of the evidence that the reasons offered by the employer were in fact pretextual and that the intent behind the employer's refusal to hire her was actually discriminatory. This burden is not satisfied by proof creating an equipoise. See Florida Department of Health and Rehabilitative Services vs. Career Service Commission, 289 So.2d 4112 (Fla. 4th DCA 1974). After one situated as the Petitioner has putatively shown a pretextual basis for the hiring decision, the employer has the opportunity to rebut that showing by proof of the absence of a discriminatory motive.

    
    

17. The Respondent in this proceeding clearly and adequately articulated and substantiated non-discriminatory reasons for rejecting the Petitioner's application and hiring Ms. Doty-Tessell. Ms. Doty-Tessell was the more qualified applicant. She had considerably more archival and archivally related experience than the Petitioner. In addition, she had received consistently more favorable performance evaluations during her tenure with the Respondent agency. The Respondent also acted in accordance with its consistent, written policy of giving first consideration to employees already employed within its agency who were qualified for promotion. Ms. Doty-Tessell was such an employee and the Archives Assistant position at issue constituted a promotion for her. The Petitioner's critical remarks about her supervisor and fellow employees were a legitimate basis for Mr. Kelly and Mr. Clark, in the fair exercise of their discretion, to determine that the Petitioner would likely have a problem in her personal relationships and "getting along" with her fellow employees and her supervisor if she were hired. These were legitimate factors to weigh in the Respondent's determination to reject her application for employment.

18. Thus, for these reasons, the Petitioner did not meet her burden of persuasion to show that the Respondent rejected her employment application because of her age or that the reasons articulated by the Respondent were merely pretextual ones. Indeed, the Petitioner did not offer any evidence that her age played a role in the Respondent's decision to reject her. See Texas Department of Community Affairs vs. Burdine, supra. It has thus not been established that age was a factor in Respondent's decision to reject the Petitioner's application for employment and accept that of Ms. Doty-Tessell. The number of employees in the Division over 40 years of age further demonstrates that age was not a motivating factor in the Respondent's employment decision in this case and in its past hiring decisions. Its past hiring decisions, as reflected in the significant number of employees in the Division over 40 years of age, is strong circumstantial evidence supporting an inference that the hiring decision in the instant case was not made on account of the age factor. No evidence was offered which would refute such an inference. Accordingly, it is concluded that the Petitioner has failed to establish by competent, substantial, preponderant evidence that the Respondent's decision not to hire her and to hire a person under 40 years of age was made for discriminatory motives.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusion of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED

That the petition of Doris E. Leitz be dismissed with prejudice. DONE and ENTERED this 3rd day of April, 1987, Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2563

Respondent's Proposed Findings of Fact: 1-16. Accepted.

17 & 18. Rejected as cumulative and subordinate to the Hearing Officer's findings in this regard.

19-37. Accepted.

Petitioner's Proposed Findings of Fact:

1. Rejected as subordinate to the Hearing Officer's findings in this regard.

2. Rejected as subordinate to the Hearing Officer's findings in this regard and as being not in accord with the greater weight of the testimony and evidence.

3. Rejected as constituting argument regarding quantity and quality of evidence and not a Finding of Fact.

4. Rejected as constituting argument regarding quantity and quality of evidence and not a Finding of Fact and as subordinate to the Hearing Officer's findings in this regard.

5. Rejected as subordinate to the Hearing Officer's findings in this regard.

6. Rejected as not a Finding of Fact, but commentary on quantity and quality of evidence.

7-9. Rejected as subordinate to the Hearing Officer's findings in this regard.

10. Rejected as subordinate to the Hearing Officer's findings in this regard and as immaterial.

11 & 12. Rejected as subordinate to the Hearing Officer's findings in this regard.

COPIES FURNISHED:

Doris E. Leitz, pro se 4015 Buster Road

Tallahassee, Florida 32304

Thomas G. Tomasello, Esquire General Counsel

Department of State The Capitol, LL10

Tallahassee, Florida 32399

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

325 John Knox Road

Tallahassee, Florida 32399-1925

Dana Baird, Esquire General Counsel

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1925

Docket for Case No: 86-002563

Orders for Case No: 86-002563