STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY J. POTASEK, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7083

) THE FLORIDA STATE UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 18, 19 and 20, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Bruce A. Minnick, Esquire

Post Office Box 11127 Tallahassee, Florida 32302-3127

For Respondent: Gerald B. Jaski

General Counsel Linda C. Schmidt

Associate General Counsel Florida State University

540 West Jefferson Street Tallahassee, Florida 32306-4038

and

Elsa Lopez Whitehurst Assistant Attorney General Office of the Attorney General PL-01 The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

Whether Respondent, The Florida State University, discriminated against Petitioner, Mary J. Potasek, on the basis of her sex and marital status as alleged in the Petition for Relief filed by Petitioner.

PRELIMINARY STATEMENT

On or about January 8, 1993, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). Petitioner alleged that the Respondent had discriminated against her on the basis of her sex and marital status. On June 16, 1993, the Commission entered a Notice of Determination: No Cause, finding no reasonable

cause to believe that an unlawful employment practice occurred. On August 12, 1993, the Commission entered a Redetermination: No Cause, affirming its initial decision.

On December 8, 1993, Petitioner filed a Petition for Relief From an Unlawful Employment Practice contesting the no cause determination and requesting a formal administrative hearing. The petition was filed with the Division of Administrative Hearings by Transmittal of Petition on December 15, 1993.

The case was assigned to the undersigned and was scheduled for final hearing on March 2 and 3, 1994. On February 11, 1994, a Consented Motion for Continuance was granted and the final hearing was rescheduled for April 18 and 19, 1994.

At the final hearing Petitioner testified on her own behalf and presented the testimony of James Skofronick, Ph. D., Peter Gielisse, Ph. D., Lawrence Gordon Abele, Ph. D., Louis Richard Testardi, Ph. D., and Fred Petrovich, Ph. D. Petitioner's exhibits 1-7, 9, 11-14 and 15 were accepted into evidence.

Respondent presented the testimony of Dr. Skofronick, Hon Kie Ng, Ph. D., Joseph Schlenoff and Dr. Abele. Respondent's exhibit 1 was accepted into evidence.

A transcript of the final hearing was filed on May 23, 1994. Proposed recommended orders were to be filed on or before July 5, 1994. Subsequent to the filing of the transcript, the parties requested that they be allowed to file their proposed recommended orders on or before July 25, 1994. This request was granted. On July 25, 1994, a further extension of the due date, until July 29, 1994, was granted.

The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

Subsequent to the filing of proposed recommended orders Petitioner filed a Motion to Strike. Petitioner requested that portions of Respondent's proposed recommended order be struck because of Respondent's failure to cite to the record and for other miscellaneous reasons. Petitioner's motion ignores the instructions given by the undersigned at the conclusion of the final hearing in response to Petitioner's question concerning citations to the record. The undersigned specifically told the parties that citations to the record were not required. Additionally, there is no authority that would allow portions of Respondent's proposed recommended order to be struck for a failure to cite to the record or for any of the other reasons advanced by Petitioner. Petitioner's motion is hereby denied.

1. Dr. Potasek earned a B.A. in mathematics in 1967 from the College of St. Catherine, St. Paul, Minnesota. She earned an M.S. degree in 1970 and her doctorate in 1974 from the University of Illinois. Dr. Potasek's master and doctorate degrees were in physics.

   
   

2. From 1990 until at least 1992, Dr. Potasek was employed in the Department of Applied Physics, School of Engineering and Applied Science, Columbia University, New York, New York. Dr. Potasek was employed as a research scientist.

   
   

3. Dr. Potasek's employment experience is briefly described in Petitioner's exhibit 4 and Petitioner's proposed findings of fact 2 through 4, which are hereby accepted and incorporated by reference into this Recommended Order.

   
   

4. Dr. Potasek resided in Princeton, New Jersey with her spouse and daughter.

   
   

5. The Respondent, The Florida State University (hereinafter referred to as the "University"), is a university of the State of Florida.

   
   

   1. "MARTECH".

      
      

6. The Center for Materials Research and Technology (hereinafter referred to as "MARTECH"), was created at the University in 1986. MARTECH was initially created in the physics department of the University to improve condensed matter physics.

   
   

7. There are approximately twenty-seven faculty members associated with MARTECH. Twelve and a half positions, the "core faculty," are paid for in total or in part by funds from MARTECH. There are also administrative support staff positions paid for from MARTECH's budget. Other members of MARTECH, the "faculty associates," are chosen informally by the MARTECH members and are paid for by from other funding sources.

   
   

8. All the members of MARTECH, except the support staff, have regular teaching duties at the University or the College of Engineering of the University and Florida A & M University.

   
   

9. The majority of the members of MARTECH are physicists. Other members include chemists and engineers. Of the core faculty, nine members are physicists, two are chemists and one is an engineer.

   
   

10. There is also a Director position at MARTECH. The Director has authority over the core faculty and staff. The Director is directly involved in the hiring, evaluation and firing of core faculty members.

    
    

11. Members of MARTECH seek funds through grants to conduct materials research with MARTECH acting as the administrator of grants.

    
    

12. No member of MARTECH is a female.

    
    

    1. The Search for Candidates for the Director of MARTECH.

       
       

13. During the fall of 1991, the University initiated a nationwide search for a Director of MARTECH.

14. The Dean of the College of Arts and Sciences, Lawrence Gordon Abele, Ph. D., authorized the hiring of a new Director. Dean Abele was appointed Dean in May of 1991.

1. Dean Abele requested Louis Richard Testardi, Ph. D., to head a search committee for the Director's position. The search committee was made up of MARTECH members and other interested University staff. The search committee was to screen applications, recommend the persons to be interviewed, participate in the interview of candidates and ultimately recommend a person to be hired as the Director.

   
   

2. Dean Abele had the ultimate authority to decide who was to be hired as Director of MARTECH. Dean Abele was not bound by the recommendation of the search committee.

   
   

3. The position was advertised in academic and industry publications. The advertisement for the Director provided, in part, the following:

   
   

   MARTECH invites applications for the

   position of director of our interdisciplinary program consisting of 34 faculty representing a variety of research areas in materials science. . . . The new MARTECH director should be able work [sic] with the directors of the National High Magnetic Field Laboratory, Supercomputer Computations Research Institute, and Structural Biology Initiative to optimize the interaction between these various multidepartmental centers. We seek a senior individual with international recognition in any area of materials science. The successful candidate should have administrative experience and head a vigorous independent research program, as exemplified by proven track records in publication and external funding. The director is expected to assume a leadership role in developing future cooperative scientific programs and initiating involvement with appropriate industries.

   The person will hold the academic rank of professor in a home department of chemistry, engineering, or physics. This position represents an exceptional opportunity for further development in a center which

   rapidly is gaining international recognition. FSU is an equal opportunity/affirmative action employer and especially encourages applicants from females and individuals historically underrepresented in the physical sciences. . . .

   
   

4. The search committee was comprised of Peter Gielisse, Ph. D., Fred Petrovich, Ph. D., Hon Kie Ng, Ph. D., R. Schrieffer, Joseph Schlenoff, James Skofronick, Ph. D. and Dr. Testardi.

5. The Director's position was advertised in several academic and industry publications in December of 1991 and January of 1992.

   
   

6. The salary range for the position, which was not included in the advertisement, was $60,000.00 to $75,000.00 for a nine-month contract period.

   
   

7. Dr. Testardi kept the members of the search committee informed during the application filing period of the names of persons who had filed applications. Dr. W. G. Moulten, associate director of MARTECH, Dr. Owens, the chair of the physics department, and the entire membership of MARTECH were also kept informed of various events surrounding the process.

   
   

8. In a memorandum dated February 25, 1992, Dr. Testardi informed the members of the search committee that the application filing period had closed. Dr. Testardi informed the search committee of the names of the thirty-one persons who had filed applications.

   
   

9. Dr. Potasek applied for the Director's position and filed a resume, Petitioner's exhibit 4, during the application filing period.

   
   

10. Dr. Potasek was the only female applicant for the Director's position.

    
    

11. Dr. Potasek's resume did not disclose her marital or family status.

    
    

    1. Qualifications for the Director of MARTECH.

       
       

12. From the advertisement concerning the Director's position it is apparent that a successful candidate would require the following:

    
    

    1. An ability to deal with "34 faculty representing a variety of research areas in materials science."

    2. An ability to work with directors in other scientific programs at the University.

    3. "International recognition in any area of material science."

    4. Administrative experience.

    5. Experience as the head of a vigorous independent research program.

    6. An ability to "assume a leadership role in developing future cooperative

       scientific programs and initiating involvement with appropriate industries."

       
       

13. Consistent with the advertised qualifications for the Director's position, Dean Abele was looking for the following: "(a) that they would be scientifically qualified, and (b) that they had the leadership and communication skills necessary to achieve what my vision of MARTECH was to be." Lines 1-4, Page 395, of the Transcript.

    
    

14. With regard to leadership and communication skills, Dean Abele further indicated the Director should be "someone who could bring the MARTECH faculty together, who could work closely with [Dean Abele] as director in seeking outside funding, who would work with [Dean Abele] on the State of Florida's technology council, and to generally seek external funding in addition to the other activities." Lines 2-7, Page 418, of the Transcript.

    1. The Search Committee's "Short List."

       
       

15. The search committee met on or about March 10, 1992, to discuss the applicants for Director and to decide on three or four candidates to recommend that Dean Abele invite for a visit (hereinafter referred to as the "Short List").

    
    

16. After discussion, each search committee member named the two to six persons they believed were the most qualified based upon the information provided by the candidates.

    
    

17. During the search committee's discussion of the Short List it was apparent that the search committee did not believe that Dr. Potasek was as qualified as several applicants. Dr. Testardi suggested, however, that the members of the search committee consider including Dr. Potasek on the Short List, in part, because of the University's commitment to affirmative action.

    
    

18. Dr. Testardi had been told by Dean Abele prior to the Short List meeting that, if there was any female candidate that was scientifically qualified based upon the application and resume submitted, the search committee should recommend that the female candidate be invited to visit. These instructions were consistent with the University's affirmative action program and Dean Abele's policy of interviewing individuals from under-represented groups who appeared qualified.

    
    

19. Dean Abele and Dr. Testardi believed that, even though a candidate from an under-represented group, such as females, did not appear as qualified on paper as other candidates, they should still be considered for an interview because of the possibility that the candidate would be more impressive in person than reflected on their resume.

    
    

20. Dr. Testardi's recommendation to the search committee to include Dr. Potasek on the short list was not well received by the search committee. The search committee indicated an unwillingness to include Dr. Potasek on the Short List because her qualifications were below those of the applicants which the search committee believed represented the three best qualified candidates. Only Dr. Skrofronick and Dr. Testardi included Dr. Potasek on their Short List.

    
    

21. The search committee selected the following candidates as the most qualified candidates: Dr. Jack Williams, Dr. Alan Cowley, and Dr. Len Feldman. All three are males.

    
    

22. The evidence failed to prove that the search committee had any knowledge of Dr. Potasek's marital or family status at the time that they rejected her as a Short List candidate.

    
    

23. The evidence also failed to prove that Dr. Potasek's sex entered into the initial decision of the search committee not to recommend that Dean Abele invite Dr. Potasek for an interview.

    
    

24. The evidence failed to prove that Dr. Potasek was equally or more qualified than the candidates that were selected for the Short List. It was solely because Dr. Potasek was not as qualified as the three candidates included on the Short List that the search committee voted not to include her name on the Short List.

25. In a note dated March 13, 1992, Dr. Testardi reported the search committee's recommendation to Dean Abele as follows:

    
    

    . . . .

    The MARTECH Director search committee met on 3/10 and selected the following names to recommend for a candidate to visit FSU.

    1. Alan Cowley, Chemistry Department, U. Texas, Austin

    2. Len Feldman, Bell Labs, Murray Hill, NJ 3). Jack Williams, Argonne Labs

    The choice of Cowley was unanimous before discussion, Feldman was unanimous after one committee member reviewed the folder, and Williams was unanimous with two members conceding.

    I also asked (insisted) that the committee consider the application of Mary Potasek, the (only) female candidate. Each committee member felt that her qualifications and experience were substantially below those of the three candidates named above, and that an invitation to Potasek was not appropriate.

    I agreed that her qualifications are below those of the short list candidates but I did not agree with the "no visit" recommendation because an existing affirmative action policy here (?) may make the visit a wise move.

    Do we have you [sic] permission to

    1. contact the short list candidates and invite them to FSU,

    2. charge the visit costs to travel expenditures, and

    3. take no further action with regard to Mary Potasek?

    . . . .

    
    

    Petitioner's exhibit 5.

    
    

26. The manner in which the requests for Dean Abele's permission were phrased by Dr. Testardi in his March 13, 1992 note represented the result of Dr. Testardi's efforts to reach a compromise between the initial decision of the search committee not to recommend that Dean Abele invite Dr. Potasek and Dean Abele's contrary instruction.

    
    

27. Dean Abele answered the question as to whether the search committee could take no further action with regard to Dr. Potasek in the negative. As a consequence, Dr. Potasek was added to the three candidates already on the Short List.

    
    

28. Dean Abele was not aware of Dr. Potasek's marital or family status when he made the decision to add Dr. Potasek to the Short List. The evidence failed to prove that Dr. Potasek's sex adversely impacted the decision of Dr. Abele to invite Dr. Potasek to interview. The evidence proved that Dr. Potasek's sex played a positive role in Dean Abele's decision to add Dr. Potasek to the Short List; if she had not been a female, she would not have been invited.

29. All four candidates on the Short List were contacted about visiting the University. Dr. Williams and Dr. Feldman withdrew their names from consideration before Dr. Potasek's visit. Dr. Cowley expressed interest in the position and in visiting the University. Dr. Cowley's visit was scheduled for June 20 and 21, 1992, after Dr. Potasek's visit.

    
    

30. Dr. Potasek was contacted by Dr. Testardi by telephone, was informed that she had been selected as a candidate to be invited to visit the University and inquired as to when she would be able to visit the University.

    
    

31. Dr. Testardi also informed Dr. Potasek that Dr. Petrovich's wife, a realtor in Tallahassee, Florida, would be telephoning her about housing in the area.

    
    

32. Dr. Potasek agreed to visit the University.

    
    

    1. Ms. Petrovich's Contact with Dr. Potasek.

       
       

33. After Dr. Potasek had been invited to visit the University by Dr. Testardi, and prior to Dr. Potasek's visit, Dr. Petrovich's wife telephoned Dr. Potasek. Dr. Potasek's daughter answered the telephone. When Dr. Potasek came to the telephone, Ms. Petrovich asked who the child was that had answered the telephone and was told by Dr. Potasek that it was her daughter.

    
    

34. Ms. Petrovich was also learned that Dr. Potasek was married.

    
    

35. Ms. Petrovich informed Dr. Potasek that she would like to assist her in locating a residence in Tallahassee in the event that she was hired as Director of MARTECH.

    
    

    1. Dr. Potasek's Visit to the University and Dean Abele's Decision Not to Offer Dr. Potasek the Director's Position.

       
       

36. Dr. Potasek agreed to visit the University on Thursday, May 28, 1992, and Friday, May 29, 1992. She was to be interviewed by Dean Abele, most of the selection committee members, other members of MARTECH and other interested persons. Dr. Potasek was also to present a one hour seminar and participate in an open discussion of MARTECH. Finally, social functions were planned on her behalf.

    
    

37. During Dr. Potasek's visit, which was paid for by the University, the University spent two full days with her, gave a dinner and cocktail party on her behalf at a local country club and several members of MARTECH took her to a local restaurant for dinner.

    
    

38. Dr. Testardi met briefly with Dr. Potasek on the morning of Thursday, May 28, 1992.

    
    

39. Dr. Potasek's first interview was with Dr. Ng. The evidence failed to prove that Dr. Ng was aware of Dr. Potasek's marital or family status or that Dr. Ng took into account Dr. Potasek's sex in any of his dealings with Dr. Potasek.

40. Dr. Potasek next met with Dr. Manousakis, followed by Dr. Robson. The evidence failed to prove that Dr. Manousakis or Dr. Robson were aware of Dr. Potasek's marital or family status or that either of them took into account Dr. Potasek's sex in any of their dealings with Dr. Potasek.

    
    

41. Dr. Potasek's next interview was conducted by Dean Abele. The interview took place on Thursday, May 18, 1992 and lasted approximately twenty minutes. At the time of this interview, Dean Abele was not aware of Dr. Potasek's marital or family status. Nor did Dean Abele learn of Dr. Potasek's marital or family status during the interview.

    
    

42. Dean Abele, who was the person who possessed the ultimate authority as to who was offered the position as the Director of MARTECH, determined that Dr. Potasek failed to meet all of the qualifications the University and Dean Abele were looking for in the Director.

    
    

43. Dean Abele concluded that Dr. Potasek was the least informed candidate he had ever interviewed for a senior position. Dr. Potasek had asked Dr. Testardi to send her a brochure on MARTECH and to describe the people associated with MARTECH and about the program. Dr. Potasek also looked for information in trade journals about MARTECH. The evidence failed to prove, however, that her efforts were sufficient to inform herself about the position that she was seeking.

    
    

44. Dean Abele also concluded that, although Dr. Potasek had the scientific credentials required to be Director of MARTECH, she lacked the leadership and communicative skills required of an effective Director.

    
    

45. During the interview with Dean Abele, Dean Abele found it difficult to maintain a conversation with Dr. Potasek, concluded that she lacked oral skills and indicated that "there were periods when she seemed to no longer be paying attention, to sit back in the chair, lean back, close her eyes once." Lines 8- 11, Page 460, of the Transcript. During the interview Dr. Potasek slouched in her chair.

    
    

46. At the conclusion of the interview and before learning of Dr. Potasek's marital and family status, Dean Abele decided that Dr. Potasek did not have the qualifications the University had included in its advertisement for the Director of MARTECH and decided that he would not hire her for that position.

    
    

47. The evidence failed to prove that Dean Abele's decision was in any way based upon Dr. Potasek's sex or her marital or family status. Dean Abele's decision was based upon the fact that Dr. Potasek did not evidence that she had the leadership and communication skills required by the University for the Director of MARTECH.

    
    

48. Most of the individuals who interviewed Dr. Potasek and who testified in this matter reached conclusions similar to Dean Abele concerning Dr. Potasek's lack of communication and leadership skills.

    
    

49. The evidence presented in this case, including two days of observing Dr. Potasek testify, supports Dean Abele's decision concerning Dr. Potasek's leadership and communication skills and was not refuted by Dr. Potasek.

50. Early during the week immediately following Dr. Potasek's visit to the University, Dean Abele informed Dr. Testardi that he would not agree to offer Dr. Potasek the Director's position. Dean Abele directed Dr. Testardi to proceed with the selection committee's process, however, because he wanted to know the selection committee's conclusions.

    
    

    1. Dr. Potasek's Visit After Dean Abele's Decision.

    
    

51. After meeting with Dean Abele and the decision not to hire Dr. Potasek had been made, Dr. Potasek next met and had lunch with Dr. Gielisse. Dr. Potasek was taken to the engineering school by Dr. Gielisse and met some of the faculty.

    
    

52. The evidence failed to prove that Dr. Gielisse was aware of Dr. Potasek's marital or family status or that Dr. Gielisse took into account Dr. Potasek's sex in any of his dealings with Dr. Potasek.

    
    

53. During the afternoon of May 28, 1992, Dr. Potasek conducted a professional seminar attended by approximately twenty individuals. A round- table discussion followed the seminar.

    
    

54. Dr. Potasek's next interview was with Dr. Petrovich. Dr. Petrovich had served as chairperson of a task force appointed in 1990 within the physics department of the University. The task force was formed to determine how the low representation of women and minorities in physics at the University could be remedied.

    
    

55. The task force prepared a report titled "Women in Physics" in which steps to improve the hiring of female physicists at the University were recommended.

    
    

56. One of the problems which gave rise to the need for the task force and which Dr. Petrovich was sensitive, was the possibility that positions had to be provided for the spouse of female candidates.

    
    

57. During Dr. Petrovich's interview with Dr. Potasek, Dr. Petrovich's efforts with the task force were discussed. In this context, Dr. Petrovich inquired of Dr. Potasek's marital status and whether it would be necessary to provide employment for her spouse also.

    
    

58. On Friday, May 29, 1992, Dr. Potasek first met with Dr. Crow, head of the National High Magnetic Field Laboratory. The evidence failed to prove that Dr. Crow was aware of Dr. Potasek's marital or family status or that Dr. Crow took into account Dr. Potasek's sex in any of his dealings with Dr. Potasek.

    
    

59. Dr. Potasek next met with a group of chemists, including Dr. Mellon, Mr. Schlenoff and Dr. Rees. The evidence failed to prove that these individuals were aware of Dr. Potasek's marital or family status or that they took into account Dr. Potasek's sex in any of their dealings with Dr. Potasek.

    
    

60. Dr. Potasek also met with Dr. Moulton on Friday. The evidence failed to prove that Dr. Moulton was aware of Dr. Potasek's marital or family status or that he took into account Dr. Potasek's sex in any of is dealings with Dr. Potasek.

61. Dr. Potasek last met with Dr. Testardi on Friday. Dr. Testardi inquired of Dr. Potasek's marital status and was informed that Dr. Potasek was married, had a daughter and that they lived in Princeton, New Jersey.

    
    

62. At the end of Dr. Potasek's interview with Dr. Testardi, Dr. Testardi informed Dr. Potasek that other candidates would be interviewed in July before a decision was made.

    
    

63. The evidence failed to prove that Dr. Skofronick or Dr. Schrieffer were aware of Dr. Potasek's marital or family status or that they took into account Dr. Potasek's sex in any of their dealings with Dr. Potasek. Dr. Skofronick was away from the University during Dr. Potasek's visit and, consequently, did not interview. Dr. Schrieffer did not testify during the final hearing.

    
    

64. On Thursday or Friday night of Dr. Potasek's visit to the University she was taken to a local restaurant by several faculty members and their spouses and on the other night she attended a dinner hosted by Dr. Petrovich at a country club.

    
    

65. During the dinner at the country club several persons asked Dr. Potasek about her marital status, whether she had children and the plans for her spouse and daughter if she was hired as Director.

    
    

66. The evidence failed to prove who, other than Dr. Petrovich and his spouse, attended the country club dinner. The evidence also failed to prove who asked Dr. Potasek about her marital and family status.

    
    

67. The evidence did prove, however, that no member of the selection committee other than Dr. Petrovich attended the dinner at the country club. More importantly, the evidence failed to prove that any member of the selection committee, other than Dr. Petrovich, was ever aware of any part of the conversation with Dr. Potasek during the country club dinner.

    
    

    1. Contact with Dr. Potasek After Her Visit.

       
       

68. In June of 1992 Dr. Potasek telephoned Dr. Testardi to inquire about whether any action had been taken and to inform Dr. Testardi that she would be temporarily employed at Wright-Patterson Air Force Base in Dayton, Ohio.

    
    

69. Dr. Potasek also telephoned to inform Dr. Testardi that she was married and had a child. This is the first time that Dr. Testardi remembers being aware of these facts even though Dr. Testardi had been informed during her visit to the University of Dr. Potasek's marital status. Dr. Potasek assured Dr. Testardi that her spouse would not be seeking a position in Tallahassee, that her spouse and her daughter would continue to reside in Princeton.

    
    

70. The June 1992 telephone conversation was memorialized by Dr. Potasek in a letter to Dr. Testardi dated July 2, 1992.

    
    

71. Dr. Testardi informed Dr. Potasek that another candidate was to be interviewed in July of 1992 and, therefore, no decision had been made.

    1. The Selection Committee's Decision Not to Recommend Dr. Potasek.

       
       

72. Because of the schedules of the members of the selection committee, the selection committee did not meet to discuss Dr. Potasek until after June 21, 1992.

    
    

73. The only member of the selection committee who spoke favorably about Dr. Potasek was Dr. Gielisse.

    
    

74. The selection committee was informed by Dr. Testardi that Dean Abele had indicated to him that he did not believe that Dr. Potasek should be hired as the Director.

    
    

75. The selection committee agreed not to recommend Dr. Potasek to Dean Abele for the position of Director of MARTECH. The evidence proved that two members of the seven member selection committee, Dr. Testardi and Dr. Petrovich, were aware of Dr. Potasek's marital and family status at the time of the selection committee's decision to recommend she be rejected as Director of MARTECH. The evidence failed to prove that Dr. Testardi, Dr. Petrovich or any other person informed the other five members of the selection committee of Dr. Potasek's marital or family status. The evidence also failed to prove that the knowledge of Dr. Potasek's marital and family status influenced Dr. Testardi's decision, Dr. Petrovich's decision or the decision of the other members of the selection committee to not recommend Dr. Potasek as Director.

    
    

76. All of the members of the selection committee were aware of Dr. Potasek's sex. The evidence failed to prove that Dr. Potasek's sex had any influence on the selection committee's decision not to include her name on the initial Short List or the decision not to recommend her for the Director's position.

    
    

77. The evidence also failed to prove that the decision of the search committee not to recommend Dr. Potasek as Director of MARTECH had any impact on Dean Abele's decision that Dr. Potasek would not be hired as the Director. Dean Abele had already decided not to offer Dr. Potasek the position.

    
    

78. The evidence failed to prove that, had the decision of the search committee been influenced by Dr. Potasek's sex and/or marital and family status and the committee had recommended that she be hired, that Dean Abele would have decided to offer Dr. Potasek the position.

    
    

    1. Notice of the University's Decision to Dr. Potasek.

       
       

79. On or about July 27, 1992, Dr. Testardi wrote a letter to Dr. Potasek informing her that the search committee had decided to inform Dean Abele that the selection committee had concluded that she did not fulfill a sufficient number of the criteria desired for the Director position.

    
    

80. As instructed by Dr. Potasek in her letter of July 2, 1992, Dr. Testardi sent his July 27, 1992 letter to Dr. Potasek's address in Princeton, New Jersey.

    
    

81. Dr. Potasek, who was in Dayton, Ohio, did not receive the letter and, therefore, she telephoned Dr. Testardi on August 3, 1992. Dr. Testardi informed Dr. Potasek that she had not been recommended by the search committee.

    1. The Second Search for a Director.

    
    

82. Dr. Cowley was not interviewed until June 20 and 21, 1992. In October of 1992 Dr. Cowley withdrew his name from consideration. At that time, all the candidates on the Short List had withdrawn their names or had been rejected.

    
    

83. In December of 1992 the search committee voted to recommend to Dean Abele that the search for a Director of MARTECH should be reopened. Dean Abele agreed.

    
    

84. After readvertising the position, more than fifty applications were received. No female candidates applied.

    
    

85. Two candidates, including Steven Von Molnar, Ph. D., were selected to be, and were, interviewed.

    
    

86. Dr. Von Molnar, a male, was hired as Director of MARTECH.

    
    

87. The evidence failed to prove that Dr. Von Molnar did not meet the qualifications for the Director's position.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

88. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Sections 120.57(1), Florida Statutes (1991).

    
    

    1. The Elements of Discriminatory Conduct; The Burden of Proof.

       
       

89. The Florida Human Rights Act provides that it is an unlawful employment practice for an employer to fail or refuse to hire any individual because of the individual's sex or marital status. Section 760.10(1)(a), Florida Statutes.

    
    

90. Dr. Potasek had the ultimate burden of proving by a preponderance of the evidence that the University intentionally discriminated against her because of her sex and/or marital status. McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973); Irby v. Allstate Insurance Co., 12 F.A.L.R. 2034, 2037 (Florida Commission on Human Relations 1989); and Martin v. Monsanto Co., 10 F.A.L.R. 3886, 3896 (Florida Commission on Human Relations 1988).

    
    

91. Discriminatory motive or intent may be proved by direct evidence or statistical evidence. Additionally, since discriminatory motive or intent is seldom capable of proof by direct evidence, the United States Supreme Court has established a multi-step analytical model which allows discriminatory motive or intent to be inferred on the basis of circumstantial evidence. Perryman v. Johnson, 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas, 411

    U.S. at 802-804. See also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981).

92. The Commission has adopted the following analytical model in analyzing cases under the Florida Human Rights Act, Section 760.01-760.10, Florida Statutes:

    
    

    1. The individual must present a prima facie case of discrimination;

    2. If the individual presents a prima facie case of discrimination, the employer must adequately rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for its actions; and

    3. The individual must prove that the employer's articulated reason for its actions was merely a pretext.

       
       

       1. Failure of Dr. Potasek to Present a Prima Facie Case.

          
          

93. In determining whether discrimination has occurred, the Commission requires proof of the following elements, adopted from the federal courts, in order for an individual to prove a prima facie case of discriminatory conduct in refusing to hire the individual:

    
    

    1. that the individual belongs to a group protected by the statute;

    2. that the individual was qualified for the position they applied for;

    3. that the individual applied for the position; and

    4. that the employer hired a person not in the individual's protected class.

       
       

       See St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); McDonnell Douglas; Trumbull v. Health Care & Retirement Corporation of America, 756 F. Supp. 532 (M.D. Fla. 1991), aff'd, 949 F.2d 1162; Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991); and National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988).

       
       

94. Dr. Potasek proved that her sex is female and that she is married. Dr. Potasek established, therefore, that she is an individual that belongs to two groups protected by the statute.

    
    

95. Dr. Potasek proved that she possessed the scientific qualifications for the position for which she applied. Dr. Potasek failed to prove, however, that she was fully qualified for the Director's position. In particular, Dr. Potasek failed to prove that she had the necessary leadership and communicative skills being sought by the University. Dr. Potasek, therefore, failed to prove that she was qualified for the position she sought.

    
    

96. Dr. Potasek proved that she applied for a position with the University.

    
    

97. Dr. Potasek proved that the position was filed by the University by a male. She failed to prove, however, the marital status of the person that was hired by the University to fill the position that she applied for. Therefore, Dr. Potasek proved that the employer hired a person not in one of her protected classes (female) but failed to prove that the person was not in her other protected class (married).

98. Based upon the foregoing, Dr. Potasek failed to prove a prima facie case of discrimination.

    
    

    1. The University's Reason for Rejecting Dr. Potasek.

       
       

99. Had Dr. Potasek presented a prima facie case of discrimination, the University presented evidence to adequately rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for its actions.

    
    

100. The evidence in this case proved that Dean Abele was the sole individual who had the authority to offer Dr. Potasek the Directorship of MARTECH.

     
     

101. The evidence also proved that, although he search committee played a role in the process of seeking candidates for the Director's position, Dean Abele made the decision not to offer Dr. Potasek a position during her interview with Dean Abele. This evidence was unrefuted by Dr. Potasek.

     
     

102. Finally, the evidence proved that Dean Abele had a legitimate, nonpretextual reason for his decision to fail or refuse to offer Dr. Potasek the position: Dr. Potasek did not possess the leadership and communicative skills necessary to be an effective Director of MARTECH.

     
     

     1. Dr. Potasek Failed to Prove that the University's Reason for Failing or Refusing to Hire Her was a Pretext.

        
        

103. Dr. Potasek has argued that she presented direct evidence of discrimination in this case or that an impermissible reason played some part in the University's decision not to offer Dr. Potasek the Director's position. This argument is not supported by the evidence in this case.

     
     

104. Dr. Potasek has attempted to prove a number of incidents as proof that the University discriminated against her on the basis of her sex and/or marital status when it failed or refused to hire her as Director of Martech. Dr. Potasek failed to prove many of those incidents. Those incidents which she did prove were remotely related as to time and general subject matter and she failed to prove that those incidents had any influence on Dean Abele and his decision.

     
     

105. When all the evidence is considered in this case, Dr. Potasek failed to prove that Dean Abele's rationale for deciding not to offer the position of Director to her was unreasonable and merely a pretext.

     
     

     1. Lack of Proof of Discrimination Based upon Sex.

        
        

106. The weight of the evidence proved that Dr. Potasek's sex had nothing to do with the alleged discriminatory act in this case: the decision of the University (through Dean Abele) to "fail or refuse to hire" Dr. Potasek:

     
     

     1. The evidence failed to prove that Dr. Potasek should have been included by the search committee on the Short List or, more importantly, that she would have been excluded from the list because of her sex. The evidence failed to prove that the three men included by the search committee were not more qualified than Dr. Potasek.

     2. Even if Dr. Potasek had proved that she were excluded from the initial Short List because of her sex, the evidence proved that she was ultimately included on the Short List and did obtain an opportunity to be interviewed.

        
        

     3. The evidence also proved that the only reason she was included on the Short List was because she was a female. Thus, the only role her sex played with regard to being placed on the Short List was not an adverse one and did not contribute to the University's decision to "fail or refuse to hire" Dr. Potasek.

        
        

     4. The evidence also failed to prove that any decision concerning the individuals included on the Short List impacted negatively on the ultimate decision at issue in this proceeding: the decision to refuse to hire Dr. Potasek.

        
        

     5. The evidence also failed to prove that the decision to refuse to hire Dr. Potasek was in any way influenced by her sex. It must remembered that it was Dean Abele that made the decision not to hire Dr. Potasek. Dean Abele's testimony that he did not consider Dr. Potasek's sex was credible, especially when it is remembered that Dean Abele was the individual responsible for Dr. Potasek being given an opportunity to interview for the position in the first place. But for Dean Abele's action, Dr. Potasek would not have even been invited to the University.

        
        

     6. The evidence also failed to prove that the actions of any University personnel or their family members before or after Dean Abele made his decision were based upon Dr. Potasek's sex.

        
        

     7. Even if the evidence had proved that other persons took Dr. Potasek's sex into consideration, the evidence failed to prove that those persons or their actions had any impact on Dean Abele and his decision not to hire Dr. Potasek.

        
        

        1. Lack of Proof of Discrimination Based upon Marital Status.

           
           

107. The weight of the evidence proved, however, that Dr. Potasek's marital status had nothing to do with the alleged discriminatory act in this case: the decision of the University (through Dean Abele) to "fail or refuse to hire" Dr. Potasek:

     
     

     1. The evidence failed to prove that Dr. Potasek should have been included by the search committee on the Short List or, more importantly, that she would have been excluded from the list because of her marital status. The evidence failed to prove that any member of the selection committee was aware of Dr. Potasek's marital status at the time the initial Short List was prepared.

        
        

     2. Even if Dr. Potasek had proved that she were excluded from the initial Short List because of her marital status, the evidence proved that she was ultimately included on the Short List and did obtain an opportunity to be interviewed.

        
        

     3. The evidence also failed to prove that any decision concerning the individuals included on the Short List impacted negatively on the ultimate decision at issue in this proceeding: the decision to refuse to hire Dr. Potasek.

     4. The evidence also failed to prove that the decision to refuse to hire Dr. Potasek was in any way influenced by her marital status. Again, it was Dean Abele that made the decision not to hire Dr. Potasek. Dean Abele was not aware of Dr. Potasek's marital status at the time he, and thus the University, made the decision not to hire Dr. Potasek. This testimony was credible and unrebutted by Dr. Potasek.

        
        

     5. The evidence also failed to prove that the actions of any University personnel or their family members who had knowledge of Dr. Potasek's marital status impacted Dean Abele's, and thus, the University's, decision not to hire Dr. Potasek:

        
        

        1. The evidence failed to prove that Dr. Petrovich's spouse informed Dean Abele or any other person of Dr. Potasek's marital status or that Dr. Petrovich's spouse played any role in the decision concerning Dr. Potasek's application.

           
           

        2. Only two members of the selection committee, Dr. Testardi and Dr. Petrovich, were aware of Dr. Potasek's marital status at any time prior to this matter being instituted before the Commission. The evidence failed to prove that either of them took into account Dr. Potasek's marital status in making any decision involving this case. The evidence also failed to prove that the search committee's decisions in this matter would have been any different had Dr. Testardi and/or Dr. Petrovich improperly taken Dr. Potasek's marital status into account.

           
           

        3. While some of the questions asked during the dinner at the country club would not have been appropriate questions for an interview, the evidence failed to prove that the individuals involved in the dinner that asked the questions played any role in Dean Abele's decision. Dr. Petrovich was the only member of the selection committee in attendance at the dinner and he already knew of Dr. Potasek's marital status.

           
           

        4. The evidence failed to prove that the search committee or any other individual who had knowledge of Dr. Potasek's marital status had any impact on Dean Abele and his decision not to hire Dr. Potasek. Dean Abele made his decision before Dr. Testardi or Dr. Petrovich became aware of Dr. Potasek's marital status and before the dinner at the country club. In fact, the only person who had any knowledge of Dr. Potasek's marital status at the time of the decision to reject her was Dr. Petrovich's wife and she played no role in Dean Abele's decision.

        
        

108. Having failed to prove that Dr. Potasek's marital status had any impact on the decision not to hire her, the "sex-plus" doctrine argued by Dr. Potasek has no application in this case. See Phillips v. Martin Marietta Corp., 390 U.S. 960, 90 S. Ct. 994, 25 L. Ed. 2d 252 (1971).

     
     

     1. Alleged "Systemic Sex Discrimination" and Other Allegations by Dr. Potasek.

     
     

109. Dr. Potasek has alleged in her proposed recommended order that the evidence in this case "presents a . . . tale of systemic sex discrimination in the 'hard sciences' at FSU." This assertion is based essentially upon the following allegations:

     
     

     1. Dr. Potasek was rejected only because she was not "the right person" for the position;

     2. Dean Abele's decision to interview Dr. Potasek was clearly based upon her sex;

        
        

     3. Dr. Testardi indicated in Petitioner's exhibit 5 that inviting Dr. Potasek was a "wise move";

        
        

     4. Dr. Petrovich was included on the search committee even though he is not associated with MARTECH and the physics department, and "under Dr. Petrovich's guidance" 50 percent fewer females are on the physics faculty today;

        
        

     5. Dr. Potasek proved that her marital status and "(unusual) family plans" were an issue;

        
        

     6. Dr. Potasek's marital status "didn't matter to Dr. Testardi, nor Dr. Abele . . . " because "they had no intention of hiring her from the onset because she is female, and clearly gave her an interview only to make it look good";

        
        

     7. Dr. Potasek was not hired even though all the male candidates had withdrawn their names from consideration. Instead, the search was reopened, no effort was made to inform Dr. Potasek about the second search and an "unqualified male candidate" was hired; and

        
        

     8. Dean Abele and Dr. Testardi did not offer any assistance to Dr. Potasek for other positions at the University.

        
        

110. The foregoing allegations and the implications thereof ignore the evidence in this case. The evidence simply failed to support these alleged facts.

     
     

111. One of the only two allegations remotely proved is paragraph 127b. The impact of that allegation, however, only adds support to the conclusion that Dr. Potasek was not discriminated against in this case.

     
     

112. The other allegation remotely proved by Dr. Potasek concerns efforts to place Dr. Potasek in, or consider her for, another position. It is true that the University did not take any action to attempt to find Dr. Potasek a position at the University after rejecting her as the Director. The University was, however, under no obligation to find Dr. Potasek a position. The evidence proved that the only position available and the only position Dr. Potasek had applied for was the Director's position. Having concluded that Dr. Potasek was not to be hired in the position she was hired for, the University was under no further obligation.

     
     

113. The allegations set out in paragraph 127 also ignore the ultimate issue in this case: did the University refuse to hire Dr. Potasek because of her sex and/or marital status. If Dean Abele was unaware of Dr. Potasek's marital status, as he was, how could Dr. Potasek's marital status have impacted that decision. The evidence simply failed to prove that Dr. Abele, and thus the University, considered Dr. Potasek's sex and/or marital status when the alleged discriminatory act took place in this case.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order

dismissing Mary J. Potasek's Petition for Relief.

DONE and ORDERED this 25th day of August, 1994, in Tallahassee, Florida.

LARRY J. SARTIN

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 25th day of August, 1994.

APPENDIX

Case Number 93-7083

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Dr. Potasek's Proposed Findings of Fact

Dr. Potasek has included several proposed findings of fact concerning who testified during the final hearing, i.e., "Dr. Testardi was recalled by Petitioner to testify in the rebuttal stage." These proposed findings are not relevant to this proceeding and have not been individually addressed. Dr.

Potasek also included summaries of some of the testimony of witnesses, i.e., "Dr. Testardi testified that . . . ." How someone testified is not a relevant fact. Testimony is only relevant to the extent that it supports a particular fact. Therefore, to the extent that testimony has been recited, it will be assumed that the testimony is being cited to indicate a proposed fact.

1 Accepted in 3. 2-4 Accepted in 5

1. Hereby accepted.

2. Accepted in 4 and hereby accepted.

3. Hereby accepted.

4. Accepted in 27, 48 and hereby accepted.

5. Accepted in 49.

6. Accepted in 51-53.

7. See 21 and 24.

8. See 54 and hereby accepted. The visit was scheduled for May 28 and 29, not May 27 and 28.

9. See 61. How Dr. Potasek "felt" or "thought" is not relevant to this proceeding.

10. Accepted in 54, 56 and hereby accepted.

11. See 57. What Dr. Potasek "sensed" or "felt" is not relevant to this proceeding.

12. See 35, 39 and 40-42. These proposed findings take evidence in this case out of context.

13. Accepted in 58.

14. See 59. The evidence failed to prove that Dr. Potasek's interview with Dean Abele was "superficial" or that they "met briefly." The evidence also failed to prove the fourth sentence of paragraph 18. The last sentence is not relevant to this proceeding.

15. See 20 and 60. The last sentence is not relevant.

16. Accepted in 60, 62, 64 and 68. The evidence failed to prove that Dean Abele's decision was made in the "first few minutes."

17. Accepted in 69 and hereby accepted. What Dr. Potasek "felt" is not relevant.

18. Accepted in 77 and hereby accepted.

19. See 72 and 74-75. The evidence failed to prove that Dr. Petrovich inquired of Dr. Potasek's family "immediately upon being introduced." What Dr. Potasek "wondered" is not relevant. Whether Dr. Potasek' was "upset" is no relevant.

20. Accepted in 82-83. But see 84-85. The evidence failed to prove that Dr. Potasek was asked "repeated questions." What Dr. Potasek "sensed" and whether she was "disturbed" is not relevant.

21. Cumulative.

22. See 72-74. The Women in Physics study did address the problems the University was having trying to attract and hire female physicists. The last sentence is not relevant.

23. See 83. but see 84-85. 28-29 Not relevant.

1. Not supported by the weight of the evidence.

2. Accepted in 76.

3. Accepted in 77. Whether Dr. Potasek was "impressed" is not relevant.

4. See 79.

5. Not relevant.

6. Accepted in 86. The evidence failed to prove that Dr. Testardi asked Dr. Potasek "why she didn't look for a job closer to where her husband lived."

7. Accepted in 88.

8. Accepted in 97-99. The last two sentences are not relevant.

9. Accepted in 14 and hereby accepted.

10. See 11.

11. Not relevant.

41 See 19, 35 and 38-39.

42 See 68 and 92.

43 See 86-87.

1. See 87. but see 79.

2. See 90.

3. See 91-93. The evidence failed to prove that "the rest of the committee agreed with the dean."

4. See 100-101. Dr. Potasek was no longer a candidate at or after Dr. Cowley's interview.

5. See 101-105. The evidence failed to prove the proposed facts concerning Dr. Molnar's qualifications.

6. See 104. The rest of this paragraph is not relevant.

7. Not supported by the weight of the evidence.

51-53 Not relevant. Dr. Potasek had the burden of proof in this proceeding.

54 Summary of testimony.

55-57 Not relevant. Dr. Potasek had the burden of proof in this proceeding.

The University's Proposed Findings of Fact

1. Accepted in 15,

2. Accepted in 21.

3. Accepted in 22.

4. Accepted in 20 and 60.

5. Accepted in 19-20 and 60.

6. See 20 and 60.

7. Not supported by the weight of the evidence.

8. Hereby accepted.

9. Accepted in 27-28.

10. Accepted in 33.

11. See 21 and 30.

12 See 21 and 30-32.

1. Accepted in 39 and 47.

2. Accepted in 35, 38 and 41-42.

3. Accepted in 36-37, 43 and 45.

4. See 37.

5. Hereby accepted.

6. Accepted in 48.

7. Accepted in 54.

8. Not supported by the weight of the evidence. 21 See 57-58, 65, 70, 75-78, 81 and 93-94.

22 Accepted in 75.

23 See 57-58, 65, 70, 75-78, 81 and 93-94.

1. See 66.

2. Accepted in 64. 26-27 None proposed.

28 Accepted in 62-64.

29 See 57-58, 65, 70, 75-78, 81 and 93-94.

COPIES FURNISHED:

Bruce A. Minnick, Esquire Post Office Box 11127

Tallahassee, Florida 32302-3127

Gerald B. Jaski General Counsel Linda C. Schmidt

Associate General Counsel Florida State University

540 West Jefferson Street Tallahassee, Florida 32306-4038

Elsa Lopez Whitehurst Assistant Attorney General Office of the Attorney General PL-01 The Capitol

Tallahassee, Florida 32399-1050

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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: 93-007083

Orders for Case No: 93-007083