STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAYLOR D. HALL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5469

) ALACHUA COUNTY DEPARTMENT OF ) COMMUNITY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer, of the Division of Administrative Hearings, in Gainesville, Florida.

APPEARANCES

For Petitioner: N. Albert Bacharach, Jr., Esquire

115 Northeast 7th Avenue Gainesville, Florida 32601

For Respondent: Robert M. Ott, Esquire

Post Office Box 2877 Gainesville, Florida 32602

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner has been the victim of an unlawful employment practice by the refusal by the Respondent to hire him for an employment position and whether that refusal was based upon the Petitioner's race or his age, as envisioned in the provisions of Section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

This case arose upon the filing of a Petition for Relief with the Florida Commission on Human Relations (Commission) by the Petitioner, Taylor D. Hall. In that Petition for Relief, he alleges that the Respondent, Alachua County Department of Community Services, wrongfully and discriminatorily refused to

hire him for the position of Retired Senior Volunteer Director of Alachua County with the Retired Seniors Volunteer Program (RSVP). The Petitioner alleges that a white person, 33 years of age, instead, was hired for the position. In due course, the Petition for Relief was transmitted to the Division of Administrative Hearings and the undersigned Hearing Officer for formal proceedings upon the Petitioner's claim. The cause came on hearing as noticed. The Petitioner presented one witness, and the Petitioner and the Respondent presented five witnesses at the hearing. The Petitioner's and the Respondent's exhibits were admitted into evidence, as shown at page 3 of the transcript.

Subsequent to the proceeding, the parties obtained a transcript thereof and requested and were accorded an extended briefing schedule. Pursuant thereto, the parties submitted proposed findings of fact and conclusions of law. The proposed findings of fact submitted by the parties have been addressed in this Recommended Order and are treated once again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is a black male, age 73, at the time the application for employment in question was submitted. The Respondent is a department of the Alachua County government maintaining, among other operations, the RSVP. This is a county-staffed program which organizes and facilitates retired or senior citizens providing volunteer services to various organizations in the community in and around Alachua County. The Respondent is an "employer" for purposes of Chapter 760, Florida Statutes.

   
   

2. In March 1992, the Petitioner was the "911 coordinator" for Alachua County, earning a salary of $25,000.00 per year. He became aware of the subject opening with the RSVP operated by Alachua County. He submitted an application for that job, the position of Director of the RSVP. The Respondent operates seven programs, including the RSVP, the foster grandparents program, crime advocates, the crisis center, veteran services, social services and animal services.

   
   

3. Elizabeth Jones is a 59-year-old white female, who has been director of the Department of Community Services since 1991. The director of the RSVP, the position in question, is supervised by Ms. Jones.

   
   

4. Elmira Warren is a 44-year-old black female, who was director of the RSVP. Shortly before the announcement of the vacancy for the RSVP director, Ms. Warren was promoted from that position to the position of director of the foster grandparents program by Ms. Jones. On March 5, 1992, Ms. Jones executed and submitted to the county's personnel department the "Alachua County Notice of Vacancy" for the position of the RSVP director. The Notice of Vacancy form depicts that the Respondent had a vacancy for the RSVP director which had been created by Ms. Warren's promotion. Pursuant to county procedure, the department submitting a Notice of Vacancy advises the personnel department as to whether the job description for the vacant position involved is an accurate one. Ms. Jones reviewed that job description to make sure that it was correct and reviewed the minimum qualifications, including the requested preference for applicants with experience working with senior citizens. The Notice of Vacancy form contains a verification that the job description has been reviewed and accurately reflects the position, including the minimum requirements, which are job related. Ms. Jones used the job description throughout the interview process.

   
   

5. The job description for the RSVP director has not changed since 1983. It requires that occupants of the position shall have obtained graduation from an accredited four-year college or university, with major course work in a human relations field and with three years responsible experience in social work, community development, group organization, and grantsmanship, preferably with senior citizens. It requires that one year of that training be in a supervisory and administrative position or any equivalent combination of training and experience. Pursuant to county personnel procedure, the position vacancy was

   posted. The accuracy of that posting was verified by Ms. Jones. It was also advertised in the Gainesville Sun, a newspaper of general circulation in Alachua County.

   
   

6. Thirty-three (33) applications were received by the personnel office for that position and reviewed by that office to determine which applicants met the minimum qualifications for the position. Eight applications were determined to meet the minimum qualifications and were forwarded to Ms. Jones and her department for consideration and the interview and selection process. The Petitioner's application was forwarded by the personnel office to the Department, along with seven others, including that of Ms. Gablehouse, the applicant ultimately selected to be hired.

   
   

7. Both the job description and the job announcement specify a hiring preference for an applicant with experience with senior citizens. Pursuant to regular county personnel policy and procedure, a department may initially screen forwarded applications for a background which more closely resembles the qualities in a prospective employee that the department is looking for, within the overall general minimum qualifications. When there are a number of candidates who meet the minimum requirements, as well as the preferred or desired level of background experience, as for instance, the preference for persons for experience working with senior citizens, the county generally selects employees from those people who have the preferred or desired background or experience. Thus, the preferred job criteria, as a matter of regular practice and policy by the county, is used as a device to further screen applicants.

   
   

8. Ms. Jones decided what criteria to use in judging the applications prior to receiving the applications. Her criteria included the job description and specifically included the preference for experience working with senior citizens. After reviewing the applications, Ms. Jones decided to interview everyone, except Mr. Ray, Mr. Davis, and the Petitioner, of the eight applicants that were forwarded to her.

   
   

9. Ms. Jones did not interview applicant Davis because he had a conviction for battery on his record, and his only experience with senior citizens was in conjunction with work with his church, rather than in a community-at-large type of setting. Ms. Jones did not interview Mr. Ray because he had recently been terminated from his previous employment and his references were not favorable. Ms. Jones did interview the Petitioner, as there was nothing on the face of his application showing that he had experience with senior citizens. The four persons interviewed by Ms. Jones for the RSVP director position had all listed relevant experience with senior citizens. Two of them referred for interview were not actually interviewed because they withdrew their applications from consideration. The Petitioner's application, by his own admission, did not list or reflect experience working with senior citizens.

   
   

10. Pursuant to regular county procedure, an interview log is used to identify all applicants interviewed and to provide comments concerning why a specific person was selected for the position. Ms. Jones kept such an interview log and explained in writing in the log why the Petitioner was not interviewed. She explained that the Petitioner was not interviewed because his experience did not include experience with senior citizens. Pursuant to county personnel procedure, the personnel staff reviews the log and the position vacancy package to insure that comments in the log correspond with information contained in the

    individual applications. This process provides oversight of the selection process. The personnel office review found the selection process used by Ms. Jones to be proper and in accord with county policy and procedure.

    
    

11. The RSVP is one involving a staff that meets with senior citizen volunteers who are looking for volunteer experiences. That staff interviews those retired citizens and suggests sites or activities that can utilize senior citizen volunteers. Ms. Jones continued the job preference criteria for senior citizen experience because she regarded it as important that the RSVP director have such experience working with senior citizens. Such criteria, in her belief, had been useful in the past in selecting employees who were capable and appropriate for work with senior citizens.

    
    

12. Melinda Gablehouse is a 33-year-old white female. She was ultimately hired by Ms. Jones for the RSVP director position in question. Her application for the position reflects extensive experience working with senior citizens.

    She also had prior experience with the RSVP prior to working for Alachua County. Based upon her past employment experience, Ms. Gablehouse believes that experience working with senior citizens is vital to the success of the directorship of the RSVP.

    
    

13. Ann Snavely is a 55-year-old white female. She is a program specialist who has been with the RSVP since 1982. Ms. Snavely also believes that experience working with senior citizens is an important job criteria reflective of a necessary skill for the position of director of the RSVP.

    
    

14. Ms. Elmira Warren is a 44-year-old african-american female. She was previously the RSVP director until she was promoted by Ms. Jones to director of the foster grandparents program. Ms. Warren stated that it would be very helpful for the RSVP director to have experience with senior citizens, as well. In her testimony, she pointed out the differences involving work with senior citizens as clients, members of the public, or employees, as opposed to working with youth or more youthful citizens or employees.

    
    

15. Ms. Jones ultimately selected Ms. Gablehouse for the position of RSVP director because her background reflected the best level of experience working with senior citizens. This, coupled with her personal knowledge and experience working with the RSVP in a prior job position, together with her attitude toward the position, reflected, in the mind of Ms. Jones in selecting her, that she was clearly the best qualified candidate. Neither age nor race was a factor used by Ms. Jones in deciding who she would interview nor who she would hire for the RSVP director position. Experience with senior citizens is an age-neutral and race-neutral job criterion and a criterion readily qualifiable. It is, therefore, an objective job criterion. The evidence establishes that Ms. Gablehouse was more qualified than the Petitioner for the position of RSVP director.

    
    

    CONCLUSIONS OF LAW

    
    

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

17. Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer:

    
    

    To discharge or fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

18. The preponderant evidence, culminating in the above Findings of Fact, establishes that the Respondent is an employer within the meaning of Chapter 760, Florida Statutes.

    
    

19. The United States Supreme Court has set forth the procedure and method of proof essential for establishing claims of discrimination in McDonald-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 125 L.Ed.2d 407. These cases stand for the principle that the Petitioner has the initial burden of establishing a prima facie case of intentional discrimination, which if established, raises a rebuttable assumption that the employer discriminated against such a petitioner. In order to establish a prima facie case, the Petitioner must establish:

    
    

    1. That he is a member of the protected class as, for instance, persons over 40 years of age, for an age discrimination claim, or that he is a member of a protected racial minority;

       
       

    2. That he applied for and met the stated qualifications for the position in question;

       
       

    3. That he was denied the position despite his qualifications; and

       
       

    4. That another individual was hired who was younger than the Petitioner with respect to the age claim, or who was not a member of a protected racial minority with respect to the race discrimination claim.

       
       

20. If such a prima facie showing is made, then the burden shifts to the Respondent to go forward with evidence which articulates a legitimate, non- discriminatory reason for the action complained of. Once the legitimate, non- discriminatory reason is articulated by the Respondent, whether credible or not, the burden of going forward with the evidence then shifts again, to the Petitioner, to show by a preponderance of the evidence that the articulated reason is pretextual and that the discrimination was intentional. The ultimate burden of proof or persuasion remains with the Petitioner. St. Mary's Honor Center v. Hicks, supra.

    
    

21. The Petitioner herein failed to establish a prima facie case of discrimination. The Petitioner did not show that he met all of the stated qualifications for the position in question. The evidence is uncontradicted that the stated qualifications include a preference for a person with experience with senior citizens. The Petitioner included no such experience on his application, which information, or the lack of it in the case of the Petitioner, was the basis for the judgment on which applicants to interview for selection

    purposes. Thus, although the Petitioner's application met the minimum qualifications sufficient to have his application forwarded to the selecting official, his application did not reflect all of the qualifications for the position, while the other applicants' applications did so reflect all of the qualifications required for the position. Because of this, the Petitioner was never interviewed.

    
    

22. Recognizing that the Petitioner did not meet the stated qualifications for the position, the Petitioner could have attempted to challenge the disqualifying criteria under the disparate impact model, as envisioned in Wards Cove Packing Co. v. Atonia, 109 S.Ct. 2115, 2124-25 (1989). The Petitioner, however, presented no such evidence, as envisioned by the Wards Cove decision in this proceeding. In fact, the preferred job criteria of experience working with senior citizens is facially age and race neutral and capable of objective, rather than subjective, determination.

    
    

23. Even if be assumed arguendo that a prima facie case was established, the Respondent articulated a legitimate, non-discriminatory basis for its hiring decision. That non-discriminatory basis was that the county wished to hire an RSVP director with experience working with senior citizens. As noted above, the application of the Petitioner reflected no experience working with senior citizens. The evidence demonstrates that the persons interviewed for the position all reflected experience with senior citizens in their applications. Furthermore, the person hired for the position had the most extensive experience working with senior citizens. Additionally, the job criteria for experience working with senior citizens was created in 1983, long before the Petitioner ever applied for the position and, as noted above, the criteria is facially neutral, objective, was advertised, and is clearly linked to job performance for the position in question. Finally, it should be noted that with this criteria in place for the position, Elmira Warren, an african-american female, had been employed in the position. Further, Ms. Jones, the selecting official for the RSVP directorship, had previously selected Ms. Warren to be promoted at a time when she was over 40 years of age. Ms. Jones' selection of Ms. Warren demonstrates a lack of the bias the Petitioner alleges in his complaint. Once the Respondent established a legitimate, non-discriminatory basis for the hiring decision, the burden of going forward with evidence shifted back to the Petitioner to prove by a preponderance of the evidence that that articulated, legitimate, non-discriminatory basis was pretextual and really amounted to intentional discrimination. The Petitioner failed to establish this.

Therefore, it has not been established by a preponderance of the evidence that the Petitioner was rejected for reasons based upon his race or age nor that Ms. Gablehouse was hired for other than legitimate, non-discriminatory reasons, as delineated above.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief.

DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5469

Petitioner's Proposed Findings of Fact 1-21. Accepted.

22. Rejected, as not entirely in accord with the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter.

23-30. Accepted.

31-32. Accepted, but not itself dispositive of the material issues presented.

33-38. Accepted, but not itself dispositive of the material issues presented, and subordinate to the Hearing Officer's findings of fact on this subject matter.

39-40. Accepted, but not dispositive of the material issues presented. 41-42. Accepted.

43. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

44-48. Rejected, as immaterial.

1. Accepted.

2. Accepted, but immaterial to resolution of the issues presented.

Respondent's Proposed Findings of Fact 1-6. Accepted.

7. Rejected, as immaterial. 8-21. Accepted.

22. Rejected, as immaterial. 23-50. Accepted.

1. Rejected, as immaterial.

2. Accepted.

COPIES FURNISHED:

N. Albert Bacharach, Jr., Esquire

115 N.E. 7th Avenue Gainesville, Florida 32601

Robert M. Ott, Esquire Post Office Box 2877

Gainesville, Florida 32602

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, Esquire General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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: 93-005469

Orders for Case No: 93-005469