STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KELVIN GROOVER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5276

) JEFFERSON COUNTY BOARD OF COUNTY ) COMMISSIONERS; PUBLIC LIBRARY, )

)

Respondent. )

)_

RECOMMENDED ORDER

A hearing was held pursuant to notice on February 4, 1992, in Tallahassee, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in the above-styled case.

APPEARANCES

For Petitioner: Kelvin Groover, pro se

DC #569040, "L" Dorm

Brevard Correctional Institution Post Office Box 340

Sharpes, Florida 32959-0340

For Respondent: T. Buckingham Bird, Esquire

Post Office Box 247 Monticello, Florida 32344

STATEMENT OF THE ISSUES

Whether the Respondent discriminated against the Petitioner on the basis of his race or sex when it did not hire

him for a position at Respondent's library contrary to the Human Rights Act of 1977.

PRELIMINARY STATEMENT

Petitioner, while employed in a temporary position at the Jefferson County Library, applied for the position of Technical Specialist. Petitioner, a black male, was denied employment. The Respondent hired a white female to fill the position for which the Petitioner had applied. The Petitioner filed a complaint with the Florida Commission on Human Relations (FCHR) alleging discrimination in hiring on the basis of race and sex.

The FCHR investigated the allegations and made an unfavorable determination. The FCHR advised the Petitioner of its findings and determination, and advised Petitioner of his right to a formal hearing on the matter. The Petitioner timely requested a formal hearing, and the FCHR referred the case to the Division of Administrative Hearings.

After filing the complaint, the Petitioner was convicted for felony and sentenced to the Florida Department of Corrections. Because of his imprisonment, the hearing was continued until after his release. The hearing was held on February 4, 1992. The Respondent was given the opportunity to, and did, supplement the record by filing evidence of unemployment funds paid to the Petitioner after he left his temporary position in September of 1990. The Respondent filed a proposed order which was read and considered. Appendix A states which findings were accepted and which were rejected and why.

FINDINGS OF FACT

1. The Petitioner, a black male, was by Respondent hired in a temporary, part-time position from February 16, 1990, until September 30, 1990. The Petitioner worker 20 hours per week, and his duties were to enter data on library books into a computer utilizing cataloging software programs. In addition, he was required to maintain computer backup data, type or call in book orders, reshelve books, and perform general building

   maintenance as necessary.

   
   

2. The Petitioner's employment with the Jefferson

   County Public Library was funded through a State aid to libraries grant.

   
   

3. A new position, Technical Specialist, was created beginning in the new fiscal year which started in October of 1990. The Petitioner filed an application for this position. The Petitioner was advised of this new job position at a staff meeting and a notice of the opening of the new position was posted on the library bulletin boards.

   
   

4. The Petitioner alleges that Cheryl Turner, the Library Administrator, predetermined that she would hire a white female, Cynthia Anglin, for the position of Technical Specialist; that he was required to perform maintenance duties; and that he was not hired for the new position because he was a black male.

   
   

5. The Respondent called Cheryl Turner who testified regarding the Petitioner's job performance and the matters which

   she considered prior to hiring Cynthia Anglin. Concerning the Petitioner's job performance, Petitioner was late for work; came to work obviously "hung over;" did not input an adequate number of records into the computer; and was unable to perform general library duties assigned to him.

   
   

6. The new job position, Technical Specialist, involved original cataloging of books and performing other library oriented duties. These included shelving books, handling the circulation desk, answering reference questions, and filing

   cards.

   
   

7. Cynthia Anglin had previously been employed by the Jefferson County Library, and had shown excellent job skills and abilities while in that position. Subsequently, Cynthia Anglin was employed by the Leon County Library where she obtained additional skills and experience.

8. Another job position which came open in October of 1990, was that of Associate Librarian, a position which required a Masters Degree in library and information studies. The Petitioner did not apply for this position and did not possess the skills or training to qualify for it.

   
   

9. The Petitioner was unemployed from October 1, 1990, until his incarceration in June of 1991. During that period of time, he received $356.27 of unemployment benefits paid to him by the Jefferson County Commission.

   
   

10. The Petitioner raised several additional issues which he alleged indicated racial bias on the part of the Respondent. These included no written job performance evaluation, performance of maintenance duties around the library, and not being sent to job enhancing courses. There was no requirement for written evaluation of the temporary position held by the Petitioner. All members of the small library staff were required to perform some maintenance activities as part of their assigned duties. No money was contained within the grant under which the Petitioner was hired to provide additional training or education. None of these allegations indicated racial or sexual bias.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter, and this Recommended Order is entered pursuant to Section 120.57, Florida Statutes.

    
    

12. The Petitioner alleges he was discriminated against because of his race and sex by the Jefferson County Board of County Commissioners contrary to the Civil Rights Act of 1977,

    Section 760.10, Florida Statutes. The Petitioner showed at hearing that he was a black male, and that the Jefferson County Board of County Commissioners through the Jefferson County Public Library was an employer within the meaning of the statute. The Petitioner showed that he applied for a job with the Respondent, and that the Respondent hired a white female to fill the position.

    
    

13. The Petitioner established a prima facie showing of a violation of the Human Rights Act of 1977; however, the Respondent has articulated and proven a legitimate,

    non-discriminatory reason for not hiring the Petitioner in the position for which he applied. The Respondent showed that the Petitioner's prior job performance was unsatisfactory, and that

    he lacked the skills and training necessary to perform the library oriented technical duties of the Technical Specialist. Further, the Respondent demonstrated that the Petitioner during his employment had shown no interest in acquiring those skills

    which were necessary to perform the duties of the Technical Specialist.

    
    

14. The individual hired by the Petitioner had been a prior employee of the Respondent, had demonstrated satisfactory job performance while employed by the Respondent, and had acquired additional experience in technical library related work subsequent to her employment which enhanced her desirability as an employee in the position of Technical Specialist.

15. The Respondent proved that it had a legitimate job related basis for hiring someone other than the Petitioner. Petitioner did not prove that the Respondent's action was pretextual. The Petitioner's employment history and the other person's qualifications were the reason he was not employed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and

Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the petition of Kelvin Groover.

DONE AND ENTERED this 26 day of February, 1992, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 26 day of February, 1992.

APPENDIX

The Respondent filed a Proposed Recommended Order which contained proposed findings which were read and considered. The following states which of those findings were adopted and which

were rejected and why:

COPIES FURNISHED:

Kelvin Groover, pro se DC #569040, "L" Dorm

Brevard Correctional Institution Post Office Box 340

Sharpes, Florida 32959-0340

T. Buckingham Bird, Esquire Post Office Box 247 Monticello, Florida 32344

Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-005276

Orders for Case No: 91-005276