STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE BRYANT, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4660

) FLORIDA DEPARTMENT OF COMMUNITY ) AFFAIRS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 22, 1989. The Division of Administrative Hearing received a copy of the hearing transcript on May 31, 1989.

Respondent filed proposed findings of fact on June 15, 1989, and petitioner filed proposed findings of fact on June 19, 1989. The attached appendix addresses proposed findings of fact by number. By operation of Rule 22I- 6.031(2), Florida Administrative Code, the parties waived time limits prescribed by Rule 28-5.402, Florida Administrative Code.

APPEARANCES

For Petitioner: Ben R. Patterson

Patterson and Traynham 1215 Thomasville Road

Tallahassee, Florida 32315

For Respondent: Andrea Bateman

2740 Centerview Drive

Tallahassee, Florida 32399-2100 STATEMENT OF THE ISSUES

Whether respondent discriminated against petitioner by failing to hire her because of her race?

PRELIMINARY STATEMENT

In response to petitioner's complaint that respondent discriminated against her on account of her race, in failing to hire her as a planner, the Florida Commission on Human Relations (FCHR) conducted an investigation, which eventuated in a "NOTICE OF DETERMINATION: NO CAUSE," on August 24, 1988.

Petitioner then filed a petition for relief from an unlawful employment practice, pursuant to Rule 22T-9.008(1), Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So.2d 754 (Fla.

1st DCA 1985), which the FCHR transmitted to the Division of Administrative Hearings, in accordance with section 120.57(1)(b)3., Florida Statutes (1987).

FINDINGS OF FACT

1. At all pertinent times, the Department of Community Affairs, an executive agency of state government, employed more than 15 persons.

   
   

2. During fiscal year 1985-86, 398 black persons and 994 white persons applied for employment with the Department of Community Affairs. Of these, 26 black persons and 101 white persons were hired. Of the white applicants, 10.16% were hired while only 6.53% of the black applicants were hired. Petitioner's Exhibit No. 1. The evidence does not reveal the qualifications of any of these applicants.

   
   

3. Differential hiring rates for black and white applicant pools persisted in subsequent years, when looked at on a Department-wide basis, even though respondent has formally adopted affirmative action plans and has consistently met hiring goals for black candidates.

   
   

   Lay Off

   
   

4. A black woman, petitioner Michelle Bryant worked for the Department of Community Affairs from January 5, 1983, until her lay off, effective at the close of business September 30, 1987. She and four others, including Leonard Case, a white man, lost their jobs in the course of a reorganization that transferred "the Section 8 Housing Programs" in which they worked to another department of state government.

   
   

5. By letter dated September 10, 1987, Ms. Bryant was informed of the possibility that she had certain "bumping rights":

   
   

   As a permanent career service employee, you are afforded the right to request a demotion or reassignment in lieu of this lay off ... A demotion or reassignment request will be accomplished if there are other employees in appropriate classes who have a lesser amount of retention points than you.

   
   

   Petitioner's Exhibit No. 5. Responding with a memorandum to Bud Parmer dated September 22, 1987, Ms. Bryant asked to be considered for another position within the Department of Community Affairs.

   
   

6. Unlike Ms. Bryant, Mr. Case, who began work with respondent on August 11, 1987, had not attained permanent status in the career service as of September 30, 1987.

   
   

   New Jobs Sought

   
   

7. When told of the lay off, affected employees were advised to seek other employment. Taking this advice to heart, Ms. Bryant visited the personnel office in the Department of Community Affairs twice weekly, during the fall of 1987.

   
   

8. She also went to the Department of Administration, in an effort to be listed as eligible for any job in state government for which she was qualified.

   As early as 1984, she had succeeded in being listed by the Department of Administration as eligible for positions described as "planner II at HRS," "planner II in intergovernmental relations," and "planner II in environmental resources."

   
   

9. On October 22, 1987, the Department of Administration found Mr. Case qualified to hold a "planner II" position, a position which has not been designated as entry level. The parties have stipulated that Ms. Bryant is also in fact so qualified "by reason of her education, experience, and training."

   
   

10. When, on November 2, 1987, respondent announced two vacant "planner II" positions, one (No. 00136) in Apalachicola and one (No. 00250) in respondent's Bureau of Public Safety Management in Tallahassee, Ms. Bryant applied for both.

    
    

11. Because her telephone had been disconnected, she was not interviewed for the job in Apalachicola. The Bureau in Tallahassee advised her nobody would be hired to fill the other position, because "the Bureau had decided it was not going to administer the program." Prehearing stipulation, page 3.

    
    

12. When respondent's Bureau of Public Safety Management advertised two more vacant "planner II" positions (Nos. 00235 and 00244) on November 5, 1987, Ms. Bryant again applied. But, in accordance with applicable rules, these positions went to employees of the Bureau of Public Safety Management who had been subjects of another lay off there.

    
    

    Another Vacancy

    
    

13. After a "planner II" vacancy (No. 00570) arose in the Bureau of Planning, within respondent's Division of Emergency Management, the Division requested from respondent's personnel office a certificate listing people eligible to fill a "planner II" position. In contrast to the procedure others within the Department of Community Affairs followed the preceding month, no job announcement nor any other public notice of vacancy No. 00570 was ever given.

    
    

14. On December 3, 1987, at respondent's personnel office, a computer operator obtained a print-out of a "certificate of eligibles" listing names of more than three people who, according to the Department of Administration, were eligible to work in "planner II" positions. For reasons perhaps best known to the Department of Administration, Michelle Bryant, although having been listed as a "planner II" in three specific areas, was not listed under the general category "planner II." Mr. Case was the only employee respondent had laid off whose name appeared on the certificate.

    
    

    Case Chosen

    
    

15. Before it was decided to obtain a "certificate of eligibles," employees responsible for choosing the new hire discussed Mr. Case with Gordon Guthrie (T.149,150) who, as director of respondent's Division of Emergency Management, ultimately authorized hiring Mr. Case for position No. 00570. After an interview, the only one conducted, Mr. Case was hired on December 4, 1987.

    He began work in his new job on December 7, 1987.

    
    

16. All of respondent's employees involved in making the decision to hire Mr. Case are white. Brenda Brown, a black temporary employee, testified that the bureau chief knew of her interest in the job Mr. Case eventually got, at the

    time he or the division director decided against advertising and in favor of procuring a certificate of eligibles.

    
    

17. But the evidence did not show that the decision makers were told either that Brenda Brown or that Michelle Bryant was not listed on the certificate of eligibles, before they asked the personnel office to obtain the list. On the other hand, those responsible for filling the position did not make any commitment to proceeding without advertising, until after they saw the list. At least no such commitment was irrevocable.

    
    

18. Department officials testified that it was necessary to use a "certificate of eligibles," instead of advertising the vacancy, so they could fill the position quickly, in order to avoid forfeiture of federal funds, payable under a contract between the Department and a federal agency, that required a certain minimum number of workers to be on the project.

    
    

19. The Department of Community Affairs used this method of hiring with some frequency. It was not clear how much notice the Department had that a vacancy in position No. 00570 would arise.

    
    

20. Because she did not know of the vacancy, Ms. Bryant never made formal application specifically for the position Mr. Case filled. As far as the evidence shows neither she nor the Department of Community Affairs was responsible for the snafu at the Department of Administration that kept her name off of the "certificate of eligibles." But her desire to work at the Department of Community Affairs as a "planner II" was well known to the decision makers.

    
    

21. When Ms. Bryant learned what had happened, she felt something was amiss, and filed a complaint with the FCHR. Only after an ensuing hearing did the then personnel director of the Department of Community Affairs look over the certificate of eligibles. He was surprised to find Ms. Bryant's name absent, because of her diligence in pursuing jobs at the Department and in state government generally.

    
    

    Other Work Found

    
    

22. After her lay off by the Department of Community Affairs, Ms. Bryant found another job, working for the Department of Health and Rehabilitative Services. This job was not as well paid as the job that Mr. Case got at the Department of Community Affairs. Even with a recent raise, she does not make as much as she would have made, if she had gotten the job given Mr. Case and progressed as he did to a "community assistance specialist."

    
    

    CONCLUSIONS OF LAW

    
    

23. Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1987), to discriminate on the basis of race in hiring employees. Respondent Department of Community Affairs is an employer within the meaning of the statute.

1. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area. Because petitioner claims intentional race discrimination, it is appropriate to resort to the procedures set out in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981); Furnco

   Construction Co. v. Waters, 438 U.S. 567 (1978); and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under these cases, petitioner has the initial burden to establish a prima facie case of race discrimination by proving that she belongs to a racial minority, that she applied for vacant positions she was qualified to fill, and that the respondent rejected her application in favor of white applicants.

   
   

2. Although statistics alone can establish a prima facie case of discrimination against a class, James v. Stockham Valves and Fittings Co., 559 F.2d 310, 328-329 (5th Cir. 1977) cert. den. 434 U.S. 1034, 54 L.Ed. 2d 781, 98 S.Ct. 767 (1978), it is unnecessary to reach petitioner's contention that statistical evidence adduced in the present case is sufficient to make out a prima facie showing of discrimination against her. See Davis v. Califano, 613 F.2d 957 (D.C. Cir. 1979).

   
   

3. Despite the absence of a formal application for the planner II vacancy Mr. Case was chosen to fill, petitioner has made out a prima facie case, even without resort to statistical evidence. The McDonnell Douglas test requires proof:

   
   

   1. that [s]he belongs to a racial minority;

   2. that [s]he applied and was qualified for a job for which the employer was seeking applicants; (iii) that despite h[er] qualifications, [s]he was rejected; and (iv) that, after h[er] rejection the position remained open and the employer continued to seek applications from persons of complainant's qualification.

      
      

      411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted). But here, as in Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir. 1984), the employer did not advertise the job opening. Like the plaintiff there, petitioner could not be expected to ask for what she did not know was available. She "was not required to do more than indicate as best [s]he could that [s]he would take any available [planner's] job." 738 F.2d at 1132.

      
      

4. The present case differs significantly from Lewis v. Tobacco Workers' International Union, 577 F.2d 1135 (4th Cir. 1978) cert. den. 439 U.S. 1089 (1979), where the employer's failure to apprise black workers who applied for one type of job that another type of job was available, was held not to constitute "a violation of Title VII, when the company treated all applicants, black and white, the same." 577 F.2d at 1143. Here Mr. Case received preferential treatment; and Ms. Bryant had repeatedly applied for the type of job he was given.

   
   

5. Except for the lack of a formal application specifically for position No. 00570, the evidence meets the McDonnell Douglas test. Because petitioner's desire and qualifications, Cf. Tagupa vs. Board of Directors, 633 F.2d 1309 (9th Cir. 1980), for a planner's job were well known to the decision makers who hired Mr. Case, the snafu at the Department of Administration did not destroy her candidacy and does not now preclude her making a prima facie case. See International Brotherhood of Teamsters vs. United States, 431 U.S. 324, 365-67, 97 S.Ct. 1843, 1869, 52 L.Ed. 2d 396, 433 (1977); Harris v. Birmingham Board of Education, 712 F.2d 1377 (11th C. 1983).

6. The present case is distinguishable even from the decision in Williams

   v. Hevi-Duty Electric Co., 819 F.2d 620 (6th Circuit 1987), a decision which, in any case, has never been followed in Florida. There the appeals court reversed a district judge's finding that the McDonnell Douglas application requirement was met, because, the appellate court said, the employer's disregard of applications more than a year old (although updated within a year) grew out of a "rational, racially neutral ... policy ... fairly and consistently applied." 819 F.2d at 629. The evidence adduced here did not reveal any rational, consistent policy at the Department of Administration that accounted for listing Mr. Case but not Ms. Bryant on the "certificate of eligibles."

   
   

7. Both the Department of Administration and the Department of Community Affairs are components of state government. Viewed separately, the Department of Administration acted as an agent of the Department of Community Affairs in preparing lists of eligible candidates.

   
   

8. Petitioner adduced statistical evidence as part of her effort to make a prima facie showing of race discrimination, but she has not contended that such evidence does any more than impose on respondent the burden to articulate a legitimate nondiscriminatory reason for its failure to hire her. She does not claim that respondent has the burden of producing evidence of a business justification for the use of the certificate of eligibles procedure. In short, this is not a disparate impact case, see Wards Cove Packing Co., Inc. vs. Atonio, No. 87-1387, 57 USLW 4583 (U.S.; June 5, 1989); Albemarle Paper Co. vs. Moody, 422 U.S. 405 (1975), but one in which petitioner seeks to prove that intentional race discrimination resulted in her nonhire.

   
   

   Prima Facie Case Not Enough

   
   

9. Petitioner has "the burden of proving that each employment decision that adversely affected ... her was the product of a discriminatory motive." Perryman vs. Johnson Product Co., 698 F.2d 1138, 1143 (11th Circuit 1983).

   
   

   One of the purposes of title 7 is to make persons whole for injuries suffered on account of unlawful discrimination ... [B]efore the court may award damages, plaintiff must first establish that she has, in fact, sustained an economic loss from defendant's discrimination.

   
   

   Taylor v. Phillips Industries, 593 F.2d 783, 787 (7th Cir. 1979). Petitioner has "the burden of proving that each employment decision that adversely effected

   ... her was the product of a discriminatory motive." Perryman v. Johnson Products Co., 698 F.2d 1138, 1143 (11th Cir. 1983). Whether statistical evidence also established a prima facie case is immaterial, in light of the rule that "statistics alone can not make a case on individual disparate treatment." Carmichael v. Birmingham Saw Works, 738 F.2d at 1131.

   
   

10. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Texas Department of Community Affairs vs. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. Because petitioner made out a prima facie case, it was incumbent on respondent to articulate a lawful, racially neutral reason for its hiring choice, in order to encumber petitioner with the burden of proving the asserted reason a pretext.

11. Specifically authorized by duly promulgated rules, the "certificate of eligibles" methodology is plainly lawful in and of itself. Rule 22A- 3.007(3)(b)1., Florida Administrative Code, provides:

    
    

    In a class that has not been

    designated as entry level, an employing agency may either announce a vacancy and add the names of additional qualified applicants to the current Certificate of Eligibles for the class, or not announce a vacancy and select an applicant from the current Certificate of Eligibles for the class, provided that three or more

    names are contained on the Certificate.

    
    

    Respondent's Exhibit 1. The Department articulated as a reason for using the "certificates of eligibles" procedure a need to fill the vacancy quickly.

    
    

12. Petitioner did not prove that this claimed need was a pretext. Using the certificate procedure precluded offering anybody not on the list the job. In order to offer the job to an unlisted person like petitioner, applicable rules would have required the Department to advertise the vacancy, which would have created the delay the officials purportedly sought to avoid.

    
    

13. Petitioner tried to prove that use of the "certificate of eligibles" was a sham contrived to conceal the fact that "Mr. Case was selected before the Certificate of Eligibles was requested. Thus, the Certificate of Eligibles, and the reliance upon Rule 22A-3.007, F.A.C. formed a facade of objectivity to mask the pre-selection of Case." Petitioner's Proposed Recommended Order, page 15. Petitioner did not prove this allegation. Proof that Mr. Case was preferred over Ms. Bryant would not, moreover, disprove respondent's claimed need to fill the vacancy quickly.

    
    

14. Finally, petitioner cites Harris v. Birmingham Board of Education, 712 F.2d 1377 (11th Circuit 1983) for the proposition that the hiring procedures respondent used are such that "no legitimate reason can be shown," 712 F.2d at 1383, for Mr. Case's selection over Ms. Bryant. In the Harris case, the court stated:

    
    

    Title VII, Supreme Court precedent, and our holdings would be rendered a farce if a public employer, without notification of job opportunity procedures, without uniform criteria for determining qualifications, and with a totally subjective system of selection could rebut a prima facie case by a prospective employee of the protected by showing that the employee never had the opportunity to learn of and apply for the job.

    
    

    712 F.2d at 1384. In the present case, job opportunity procedures were no secret. Petitioner had in fact gone to the Department of Administration, in an effort to be listed as eligible, an effort that failed for reasons the record does not disclose. Nor are petitioner's qualifications in dispute here.

15. Petitioner would not have been hired, even if she had learned of and made specific written application for the vacancy Mr. Case filled, because, say respondent's witnesses, she could not have been hired quickly enough, since her name did not appear on the certificate of eligibles. But a procedure for getting her name on the list did exist. Petitioner proved only that the procedure went awry, not that it was intentionally distorted to discriminate against her on account of her race.

RECOMMENDATION

It is accordingly, RECOMMENDED:

That respondent deny the petition for relief from an unlawful employment practice.

DONE and ENTERED this 9th day of November, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1989.

APPENDIX

Petitioner's proposed findings of fact Nos. 1 through 14, 16 through 24, 27, 33, and 34 have been adopted, in substance, insofar as material.

Petitioner's proposed finding of fact No. 15 was not proven.

Petitioner's proposed findings of fact Nos. 25, 26, 28 through 32, 35 and

36 relate to subordinate matters.

With respect to respondent's proposed finding of fact No. 1, petitioner was an applicant despite not being listed.

Respondent's proposed findings of fact Nos. 2 through 10, 15, and 19 have been adopted, in substance, insofar as material.

With respect to respondent's proposed finding of fact No. 11, petitioner could have been hired if respondent had advertised the position.

With respect to respondent's proposed finding of fact No. 12, it was only Mr. Irwin who, as far as the proof showed, did not realize Ms. Bryant's name was not listed when Mr. Case was hired. He was not shown to have participated in the hiring decision.

Respondent's proposed findings of fact Nos. 13, 17, and 18 are properly proposed conclusions of law.

With respect to respondent's proposed finding of fact No. 14, it was not clear how far ahead the agency knew the vacancy would occur.

With respect to respondent's proposed finding of fact No. 16, things did not necessarily occur in that order.

Respondent's proposed findings of fact Nos. 20 through 24 pertain to subordinate matters.

COPIES FURNISHED:

Thomas G. Pelham, Secretary 2740 Centerview Drive

Tallahassee, FL 32399

Ben R. Patterson, Esquire Patterson and Traynam 1215 Thomasville Road

Tallahassee, FL 32315

Andrea Bateman, Esquire 2740 Centerview Drive

Tallahassee, FL 32399-2100

Docket for Case No: 88-004660

Orders for Case No: 88-004660