Dean, assigned Hearing Officer of the Division of Administrative Hearings, on December 8, 1993, in Tallahassee, Florida.
For Petitioner: D. Paul Sondel, pro se
For Respondent: Robert B. Jurand, Esquire
Whether the Respondent discriminated against the Petitioner by refusing to hire him for a vacant position because of his age.
On or about June 26, 1992, the Respondent advertised an opening for employment as a Resident Housing Coordinator, position No. 60584 (the position). The Petitioner applied for the position and subsequently was not selected for employment. On or about September 23, 1992, the Petitioner filed a petition alleging age discrimination by the Respondent in denying him employment in the position. The Florida Commission on Human Relations (Commission) initiated an investigation which rendered a determination of no cause and advised the Petitioner of his right to request a formal hearing on his allegations before the Division of Administrative Hearings. The Petitioner requested a formal hearing on his allegations, and the Commission forwarded this case to the Division.
The case was noticed for hearing on December 8, 1993. At the formal hearing, the Petitioner presented his own testimony and that of Phyllis McCluskey-Titus. The Respondent called Ms. McCluskey-Titus and Marge Granger of the University personnel office.
Both parties submitted posthearing pleadings which were read and considered. The Appendix attached to this Recommended Order states which of the proposed findings submitted by the parties were adopted and which were rejected and why.
The Petitioner is a white male approximately 65 years of age at the time of the hearing, and was 63 years of age when he applied for the position.
The Respondent is a state funded university with tens of thousands of students which provides housing for male, female, married, unmarried, undergraduate, and graduate students. This housing is managed and administered by the Respondent.
On or about June 26, 1992, the Respondent advertised an opening for employment as a Resident Housing Coordinator, position No. 60584 (the position).
The Petitioner timely applied for the position. The position was vacant as a result of the resignation of the incumbent employee.
The position had been advertised by various means. The job vacancy notice stated the minimum qualifications and job description of the position.
The minimum qualifications for the position were a masters degree or a bachelors degree with two years of experience.
The standardized application used by the Respondent asked for the applicant's degrees and the dates it conferred. The application does not ask for the applicant's age. The Petitioner listed his degrees but did not indicate the year in which they were conferred.
Ms. Granger, Coordinator of University Relations, Employment and Recruitment, reviewed the various applications for the position. Ms. Granger annotated the Petitioner's application in a handwritten marginal note to check the Petitioner's degree dates.
Ms. Granger sent the Petitioner's application to the University housing office for review by Ms. McCluskey-Titus because the Petitioner met the minimum qualifications for the position.
In addition to the application, the Petitioner sent a curriculum vitae which indicated his considerable experience to include recently managing a dormitory at a Florida junior college. That position had duties similar to those required for the position for which he was applying at the University.
Ms. McCluskey-Titus reviewed the applications for the position in her capacity as Associate Director of the University housing. Ms. McCluskey-Titus manages the 14 on-campus residential halls housing over 4,000 students. The Resident Housing Coordinator oversees developmental programing and is
responsible for student activity budget. The Coordinator assists in researching information on student residents and coordinates certain central office functions.
The Resident Housing Coordinator is responsible for the administration and management of a residential hall which houses 400 to 600 students. The Resident Housing Coordinator selects, trains and supervises the student housing assistants. The Resident Housing Coordinator is the Chief Judicial Officer of the building, and administers justice for housing infractions.
From the dates of the Petitioner's degrees, it is clear that he is an older individual.
Ms. McCluskey-Titus described the position as an entry-level position and indicated that these positions are generally sought by individuals beginning a career in university housing management. She indicated that the applicants for these positions are generally young.
The Petitioner's vitae indicates that he has a bachelors of arts in psychology and sociology, a masters in education, and had completed the course work for a doctorate in education at Florida State University. The Petitioner's work experience included teaching, speech, drama, history and reading; being a Principal; assisting in establishing a job corp training program; working overseas for the United Nations, the World Bank, and various U.S. agencies; coordinating the energy management program of the Florida Department of Transportation; managing his own consulting business; and most recently was director of resident halls at Chipola Junior College for 14 months.
The Petitioner's synopsis of his experience points out his varied career and highlights his work at Chipola Junior College.
Ms. McCluskey-Titus selected Sara Steyer to fill the position for which the Petitioner had applied. Ms. Steyer was born on March 24, 1968. Ms. Steyer's experience included managing a residents hall for two academic years; serving as a resident assistant for three academic years; and experience while in school in student affairs related areas, to include freshman orientation, fraternal organizations, and the University's judicial process. Ms. Steyer received a masters degree from Bowling Green State University in student personnel management. The position at FSU was her first position after receiving her masters degree.
Ms. McCluskey-Titus has hired no applicants who are over the age of 30 for positions in the University housing office.
Ms. McCluskey-Titus assessed the applicants, looking for people who had degrees in student personnel, a relatively-recent degree field, and people who were beginning a career in this area.
Ms. McCluskey-Titus was looking for an applicant with experience as a dorm leader as an undergraduate, and a degree in college student personnel and a background in student affairs. These criteria were not part of the stated education and experience for the position.
The criteria utilized by Ms. McCluskey-Titus resulted in the consideration of only young people, just beginning their careers. The selection criteria used by Ms. McCluskey-Titus excluded older applicants. The criteria used as a basis by Ms. McCluskey-Titus were not those developed by the employer
on the basis of job related necessities. Ms. McCluskey-Titus admitted that FSU did not have any mid-level career positions into which to promote these young people, and that this resulted in a high turnover of the employees who were hired in entry-level positions.
Although it is not stated on the Petitioner's curriculum vitae, he did possess experience in student government and related areas during his undergraduate training. He did not include these in his curriculum vitae because of the more extensive experience which he has had since leaving school.
Ms. McCluskey-Titus was aware that it would have been illegal to advise applicants that they were looking only for young people.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Petitioner is a person, and the Respondent is an employer, within the meaning of Chapter 760, Florida Statutes.
The Petitioner bears the burden of proof in this case. See, McDonnell-Douglas v. Green, 93 S.Ct. 1817 (1973).
The Petitioner bears the burden of establishing a prima facie case of discrimination. See, McDonnell v. Douglas, supra. Once the Petitioner has established a prima facie case by a preponderance of the evidence, the Respondent must articulate some legitimate, nondiscriminatory reason for its actions. See, McDonnell-Douglas, supra. Once the Respondent has articulated a reason for its actions, the Petitioner must prove by a preponderance of the evidence that the Respondent's articulated reason was not the true reason, but was a pretext for discrimination. See, St. Mary's Honor Center v. Hicks, 113 S.Ct. 2747.
The Petitioner must prove that the reason articulated by the Respondent was false and that discrimination was the real reason for the Respondent's actions. See, St. Mary's Honor Center, 113 S.Ct. at 2752. The foregoing federal standards have been adopted in Florida and are applicable to cases arising under Chapter 760, Florida Statutes. See, Harris v. School Board of Leon County, 400 So.2d 103 (Fla. 1st DCA 1981).
It is undisputed in this case that the Petitioner met his burden of establishing a prima facie case showing by a preponderance of the evidence that his age was 63 at the time of submitting his application, that he was minimally qualified for the position, that he was not hired for the position, and that a person was hired for the position who was younger than he was.
The Respondent articulated a legitimate, nondiscriminatory reason for hiring Sara Steyer instead of the Petitioner; to wit, Ms. Steyer's specific educational background and recent experience as a dorm leader and working in student affairs. Quoting from the University's brief, "Ms. Steyer's involvement in and commitment to University student affairs and housing began early in her undergraduate education, and continued into her master's program, coupled with two years of direct experience in University resident housing, and leading to
her current position at FSU. In contrast, the Petitioner's only direct experience in student housing, which lasted 14 months at a junior college, occurred in 1989, approximately 29 years after he received his masters degree.
According to Ms. McCluskey-Titus' testimony at the hearing, she was very concerned about filling these entry-level positions with individuals commencing a career in University housing.
In this particular instance, the criteria selected by the individual responsible for the hiring screened out older individuals, to include the Petitioner. The degree for which Ms. McCluskey-Titus was looking is a degree conferred relatively recently. She sought recent experience in managing a dormitory, being a hall counselor, being involved in student affairs and student government. She sought an individual commencing a career in student housing. None of these criteria are stated educational or experience criteria for the position, and none of them have been designated job related or necessary.
The Petitioner has demonstrated that the criteria selected by the Respondent for filling the vacancy discriminates against older applicants. He has further demonstrated that the criteria used and which results in the elimination of older applicants is not job related, is not stated in the job description, and is discriminatory.
The process by which Ms. McCluskey-Titus filled the last six positions in the housing office with incumbents whose average age is 26.5 years is not invidious black-hearted discrimination, but a more subtle process of exclusion of individuals whose experience with student government affairs is 29 years old, and who is ending a career and not beginning one, and whose degrees are more general.
Contrary to the Respondent's argument that it is not responsible for the lack of qualified applicants of more advanced years to be in the pool of individuals applying for positions, it is, indeed, responsible for the criteria that it has used for selecting its employees. When the criteria selected are not job related or necessary and they mitigate against the selection of individuals of age, then they are, in fact, discriminatory.
