STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RICHARD C. BISHOP, )
)
Petitioner, )
)
vs. ) CASE NO. 94-0793
)
STATE OF FLORIDA, )
DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Notice was provided and on October 20, 1994, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.
APPEARANCES
For Petitioner: Richard C. Bishop, pro se
1606 Northeast Seventh Terrace Gainesville, Florida 32609
For Respondent: Charles G. Gardner
Assistant General Counsel Department of Transportation
605 Suwannee Street, Mail Station 58 Haydon Burns Building
Tallahassee, Florida 32399-0458 STATEMENT OF ISSUES
Is Petitioner entitled to relief from an alleged unlawful employment practice by Respondent through discrimination against Petitioner for charging the Respondent with alleged age discrimination? In particular, is Petitioner entitled to relief because Respondent through its employees interfered with Petitioner's opportunity to gain employment with a private engineering firm, which firm was doing consulting work for Respondent? See Section 760.10(1) and (7), Florida Statutes.
PRELIMINARY STATEMENT
On March 26, 1992, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations. He alleged that the Respondent had discriminated against him based upon his age. Petitioner also alleged that Respondent retaliated against him by interfering with Petitioner's opportunity for employment with Reynolds, Smith and Hills, an engineering consultant doing work on Respondent's projects.
In accordance with a work-sharing agreement between the Florida Commission on Human Relations and the EEOC, the initial processing of the complaint was performed by the EEOC. Through its investigation, the EEOC determined that the statute of limitations had run on the claim of age discrimination. The EEOC also found that there was no reasonable cause to believe that an unlawful employment practice had occurred concerning the allegation of retaliation. As a result of the EEOC findings the Florida Commission on Human Relations issued a determination of no cause consistent with the EEOC findings. The decision not to find cause was made on December 14, 1993 and filed on December 17, 1993.
On December 17, 1993, the Florida Commission on Human Relations issued its notice of determination of no cause.
The file number for the action by the Florida Commission on Human Relations was FCHR No. 92-3446. The companion case number by the EEOC was EEOC No.
15D920426.
Through the notice of determination of no cause Petitioner was afforded the opportunity to petition for additional relief.
Petitioner sought further relief by filing a petition on January 24, 1994. This petition was filed with the Florida Commission on Human Relations. Through the petition it was alleged that Respondent prevented Petitioner from future employment with the private contractor after Petitioner left the employment of Respondent. Again this referred to Petitioner's employment opportunities with Reynolds, Smith and Hills.
The petition for relief filed January 24, 1994, after the preliminary determination that the age discrimination claim was untimely, did not include a substantive claim of age discrimination.
On February 11, 1994, the Commission noticed Respondent of the filing of the petition for relief. On that same date the petition for relief was transmitted to the Division of Administrative Hearings for consideration of the dispute.
Petitioner moved for summary judgment but withdrew that motion.
A prehearing conference was conducted by telephone between previously assigned Hearing Officer Davis, Petitioner and counsel for Respondent. This conference took place on July 11, 1994. Being uncertain concerning the proper disposition in the case, Hearing Officer Davis issued an order to show cause on July 18, 1994 designed to clarify that uncertainty. Ultimately, Ms. Davis determined to proceed to hearing as reflected in the order and notice of hearing issued on September 21, 1994.
Unilateral responses were made to the requirements in the order of prehearing instructions issued by Ms. Davis on February 22, 1994. In some respects the suggested fact stipulations by the parties coincide. Therefore, they are available to the Hearing Officer for fact finding purposes in the recommended order. The separate prehearing stipulations are submitted with this recommended order.
Petitioner testified in support of his petition for relief. He presented the testimony of Henry Glowacki, Lee Minson, Lorraine Roberts, Neil Rissman and
Dan Turner. Petitioner's Exhibit 1 was admitted. Petitioner's Exhibit 2 was denied admission. Petitioner's Exhibit 3 was identified in the record but not offered.
In defense, Respondent presented the testimony of Angie Cynkar, Jim Martin, Gerry Smith and Robert Stewart. Respondent's Exhibits 1-7 were admitted.
Respondent's Exhibit 8 was presented for consideration and withdrawn. Respondent's Exhibits 9 and 10 were admitted.
Official recognition was made of Chapter 14-15, Florida Administrative Code.
A transcript of the hearing was filed on November 22, 1994. Petitioner gave written notice that he did not intend to file a proposed recommended order. Respondent timely submitted a proposed recommended order. The fact finding suggested in that proposed recommended order is commented on in the appendix to the recommended order.
FINDINGS OF FACT
Respondent at times relevant to the inquiry employed 15 or more employees in each working day in each of 20 or more calendar weeks in the year.
Petitioner worked for the Respondent from May 7, 1984 through December 19, 1991.
Petitioner had tendered his resignation on December 6, 1991 from his position as Engineering Technician IV. His intention was that his resignation become effective December 20, 1991.
On December 6, 1991, Jerry G. Smith, District Land Surveyor for District II, State of Florida, Department of Transportation, accepted Petitioner's resignation effective December 20, 1991. This action by Mr. Smith was by virtue of his responsibility for the Mapping and Surveying Section of which Petitioner was a part.
Respondent did not solicit Petitioner's resignation.
In the chain of command Mr. Smith was 2 or 3 times removed from Petitioner.
Respondent's Exhibit No. 1 describes the duties of Engineering Technician IV incumbent upon Petitioner until November 12, 1991. Those duties were as follows:
Plots and inks the final right of way and assists other Department Personnel in the preparation of maps. These maps must meet
D.O.T. and Federal Highway Administration Standards.
Works with the Document Preparation Section in locating property lines and determining what information is needed on maps in order to prepare legal descriptions.
Assists in the verification of final right of way requirements with Road Design Personnel.
Assists in the review of right of way maps prepared by Consultants.
Assists in making the computations that are needed for map and deed preparation.
Provides other Department Personnel and the General Public with right of way information as required.
Performs related work as required. Percentages of time will vary due to work load.
Respondent's Exhibit No. 2 describes the job description for Engineering Technician IV related to the Petitioner from the period November 12, 1991 through December 19, 1991. Those duties were as follows:
30 percent Prepares very complicated legal descriptions of real property to be acquired by the Department of Transportation. These are written by hand and also by using "Legal Holiday", Computer Software.
30 percent Plots Title Search (Abstract) on Right of Way Maps and determines owners and encumbrances.
15 percent Reviews legal descriptions of real property and related documents prepared by other employees or/and Consultants.
15 percent Compute areas of parcels needed for right of way. Also, computes areas, distances, and bearings on property remainders.
5 percent Determines the types of instruments of conveyance to be prepared.
5 percent Performs related work as required.
Percentages of time will vary, due to work load.
Some unspecified person within the architectural and engineering firm, Reynolds, Smith and Hills, Inc. made contact with Petitioner concerning the possibility that he might serve as an office engineer in the firm's Lake City, Florida office. This contact was made in October, 1991.
On December 3, 1991, Ed Griffin and Eric Rosenstein called Petitioner about the availability of the office engineer position. They wanted Petitioner to come to their Longwood, Florida office and interview about the position.
On December 6, 1991, Petitioner went to the firm's Longwood office and was interviewed by Eric Rosenstein and Ed Griffin. They took a photocopy of his social security card and his resume to support his application for employment.
Petitioner testified that Mr. Griffin and Mr. Rosenstein during the December 6, 1991 interview specifically stated that they wanted to hire him. These hearsay comments attributable to Mr. Griffin and Mr. Rosenstein were not otherwise proven. Therefore, it has not been established that Petitioner was offered a job with the Reynolds firm on December 6, 1991.
Based upon the interview with Griffin and Rosenstein, Petitioner called Jerry Smith's office on December 6, 1991, and spoke to Carol Streer, secretary to Jerry Smith. He told her to prepare a letter of resignation for Petitioner and he told her to tell Jerry Smith that Petitioner would be leaving his position with Respondent in two weeks and wanted to give the Respondent two weeks' notice. This led to the resignation and acceptance of that resignation that has been addressed above.
On November 1, 1991, the Reynolds firm had entered into an agreement with Respondent to serve as a consultant for purposes of construction engineering and inspection. This was in association with the resurfacing with bridge widening of Interstate 75. It is inferred that Petitioner had been interviewed by the Reynolds firm to serve as an office engineer to the Reynolds firm on the resurfacing project.
In accordance with the agreement between the Reynolds firm and Respondent, related to the Interstate 75 resurfacing project, a definition is given concerning minimum training and experience standards for consultant personnel. Specifically, the training and experience anticipated for an office engineer is described in that agreement to this effect:
OFFICE ENGINEER - High school graduate plus three (3) years experience in responsible charge of a construction office. Should exercise independent judgment in planning work details and making technical decisions related to office engineering aspects of the project. Accepts general supervision and verbal instructions from the Resident Engineer. Serve as the Resident Compliance Officer in surveillance of the
Contractor's compliance with contract requirements.
Within the agreement under Section 2.0 entitled: SCOPE, it states:
. . . The Consultant shall provide technical and administrative personnel meeting the requirements set forth Section 9.0 of this Scope of Services in appropriate numbers at the proper times to
ensure that the responsibilities under this Agree- ment are effectively carried out. All services shall be performed in accordance with the estab- lished standard procedures and practices of The Department. . . .
Section 9.0C. entitled Staffing, within the agreement, states:
. . . no personnel shall be assigned to this project by the Consultant until the qualifications of each person proposed have been reviewed and approved in writing by the Program Manager. The Consultant's personnel approval requests shall be submitted at least two weeks prior to the date an individual is to report to work.
The Program Manager, according to the agreement, is: "the District employee designated to be in responsible charge and direct control of the projects covered by this agreement."
On December 9, 1991, in accordance with the agreement, the Reynolds firm submitted Petitioner's name as proposed office engineer on the Interstate
75 project. This submission was made through a form seeking approval from the program manager.
In support of the request to have the program manager approve the Petitioner to serve as an office manager to the consultant, the Reynolds firm submitted a resume which Petitioner had provided that firm.
The resume which Petitioner gave to the Reynolds firm and the firm in turn gave to the Respondent's program manager stated as follows:
R E S U M E
Richard C. Bishop
HOME
1605 N. E. 7th Terrace Gainesville, Florida 32609
Telephone (904) 373-6510
538-5225
OFFICE
Surveying & Mapping Dept. Post Office Box 1089
Lake City, FL 32056-1089
Telephone (904) 752-3300
EXT. 3662
PERSONAL:
Male, Caucasian, U. S. Citizen, Good Health, 5' 10",
195 lbs.
EDUCATION:
Univ. of Florida Business Administration San Jose City College Associates Degree, Electronic Engineering
Univ. of North Florida Communications and Electronics US Air Force
EXPERIENCE:
Atlantic Ballistic Missile Range with Radio Corporation of America as Electronic-Equipment-Man working with HF and VHF Receivers and Transmitters, a 200+ station North Electric all
system, Emergency Networks (radio and telephone), Radar Boresight Cameras, Optical Trackers, Control Room Plotting Boards and Captain of Disaster Control Team.
West Virginia Department of Highways: Completed Engineer-In-Training program covering all phases of Construction Maintenance, Soil Mechanics and Testing including Marshall Stability Tests, Los Angeles Abrasion Tests as well as standard sieve
analysis, flow plasticity, density, specific gravity, extractions, gradations and concrete and asphalt mix designs.
Set up and managed a Complaint Department while continuing duties as an Area Maintenance Assistant over several counties.
Certified Portland Cement Concrete Technician with sampling and testing experience in both field and laboratory testing methods.
Licensed Nuclear Densitometer Operator with considerable experience using the Troxler Nuclear Densitometer measuring densities on fills, sub- grades and asphaltic concrete bases and overlays.
Management and/or supervision in several privately owned asphalt paving and construction companies.
Construction Inspection School for 10 weeks at St. Petersburg Junior College. Construction inspection on I-75, Alligator Alley and Toll Plaza, Marco Island Road and other projects in the Naples area, then SR 21, Orange Park to Middleburg, SR 121 at Raiford, Rocky Creek Bridge, 53rd Ave and Waldo
Road intersection and others in the North Florida area.
Presently working in Right of Way Engineering ordering, receiving and plotting title searches on maps and producing corresponding accurate maps and all the necessary legal documents required for the actual acquisition of real property with a right of way.
In December, 1991, the program manager for Respondent on the Interstate 75 resurfacing with bridge widening project was Thomas E. Brenner.
Mr. Brenner has never been acquainted with the Petitioner other than responding to the Reynolds firm's request to have the Petitioner approved to be the office engineer on the project. No proof was shown that Mr. Brenner has ever made derogatory statements about the Petitioner.
Mr. Brenner in carrying out his function as program manager wrote to the Reynolds firm on December 11, 1991, disapproving the request to have the Petitioner approved as the office engineer for the consultant. In disapproving that request he made the following remarks: "Needs some EEO [sic] experience and three (3) years in responsible charge of a construction office."
The experience which Petitioner had prior to December 9, 1991, when the Reynolds firm requested that he be approved as office engineer did not meet the training and experience standards within the agreement which were incumbent upon a person serving as an office engineer for the consultant. Thus, the reason for disapproving the request to have Petitioner serve as office engineer is borne out.
The record is not clear concerning what is meant by the need for EEOC experience and what experience the Petitioner may have had with the EEOC process. However, it was not shown that Mr. Brenner placed the requirement for EEOC experience as a means to discriminate against the Petitioner in the firm's attempt to have him approved as office engineer.
Following the disapproval of the request to have Petitioner approved as the office engineer for the consultant, Mr. Rosenstein called the Petitioner around December 17, 1991. He told the Petitioner that the Reynolds firm was having a problem getting the Petitioner approved to do work with the Respondent. This refers to the work on the Interstate 75 project as office engineer. Specifically, Mr. Rosenstein told the Petitioner that the difficulty had to do with not enough EEOC experience. Petitioner explained in response that he did not consider that this was a significant problem.
Two or three days after December 17, 1991, Mr. Rosenstein called the Petitioner again and told him that the problem about EEOC had settled down and that the Respondent was opposing recognition of approval of the Petitioner for work as an office engineer based upon the Petitioner's lack of experience in the computer field related to LOTUS 1-2-3. Petitioner acknowledged that he did not have experience with that form of computer. The record does not bear out how those requirements with LOTUS 1-2-3 coincided with Mr. Brenner's reasons for disapproving the request to have Petitioner serve as office engineer to the consultant, if at all.
Some time in January, 1992, Petitioner went to the Reynolds' Longwood, Florida office to give Ed Griffin further information in support of his application for employment. At that time Petitioner learned that the Reynolds firm did not intend to follow up their discussions held with Petitioner concerning his employment and that he would not be hired by the Reynolds firm.
In addition to failing to prove that Mr. Brenner had made derogatory statements about him which might have interfered with Petitioner's opportunity to gain employment with the Reynolds firm, Petitioner failed to prove that any of Respondent's employees or managers had made derogatory statements which interfered with his opportunity to gain employment with the Reynolds' firm. The only suggestion that anyone working for the Respondent had made derogatory remarks about the Petitioner were promoted by the Petitioner himself. He told others who worked for Respondent that Jerry Smith wanted to get rid of or fire Petitioner and that Jerry Smith had said that Petitioner would never work a day for the Reynolds firm. Jerry Smith had not made these remarks. Jerry Smith had no contact with the Reynolds firm concerning the Petitioner.
Moreover, Jerry Smith has had limited contact with Mr. Brenner and none of it was designed to influence Mr. Brenner in his decision to disapprove the request by the Reynolds firm to have Petitioner serve as office engineer for the consultant.
Mr. Smith works in the production side of the District II operation. Mr. Brenner worked in the construction side of the District II operation while he was employed there.
Unrelated to the attempt by Petitioner to gain employment with the Reynolds firm, Jerry Smith has had involvement with the Petitioner concerning personnel matters. On several occasions discussions were held between the Petitioner and Smith in which Petitioner was attempting to gain a promotion. On those occasions Smith told the Petitioner that he did not think that the
Petitioner was operating at a level that warranted discussing promotion. Smith held the opinion of the Petitioner that the Petitioner could not perform the job duties incumbent upon him in his position as Engineering Technician IV. In particular, Mr. Smith did not believe that Petitioner would finish a task assigned and always had to have someone else finish the work for the Petitioner. Mr. Smith tried to have the Petitioner focus on the perceived shortcomings, but this did not lead to a satisfactory result from the point of view which Mr.
Smith felt. When the Petitioner left his employment with the Respondent Mr. Smith made a notation that he would not recommend rehiring the Petitioner at some future date.
There is no indication that Mr. Smith or anyone in a supervisory position with the Respondent ever took disciplinary action against the Petitioner for matters related to the Petitioner's performance as Engineering Technician IV.
Robert Stewart who is a project manager for Respondent, a friend of Jerry Smith, was not involved in making the decision on December 9, 1991, to disapprove the request to have Petitioner serve as office engineer for the consultant. As stated before Robert Stewart had no contact with the Reynolds firm concerning the Petitioner and the Petitioner's possible employment with the Reynolds firm.
The job description and resume information do not support the Petitioner in his claim that his experience gained while employed by the Respondent equates to the necessary experience to perform the duties as office engineer for the consultant in the Interstate 75 project. Nor does the record indicate that Mr. Brenner was aware of any experience outside the position description and resume when disapproving the request to have Petitioner serve as office engineer.
Finally, the numerous requests which Petitioner made to gain additional training while employed by Respondent, which requests were not granted, were not matters which Petitioner has shown that he was entitled to be granted. Moreover, those requests have not been shown to be matters which coincide with the requirements for the position of office engineer to the consultant in the Interstate 75 project.
On September 2, 1994, in the prehearing conference held by telephone, Petitioner indicated to Hearing Officer Davis that he accepted the "no charge" determination of the Florida Commission on Human Relations as to the untimeliness of his age discrimination allegation and waived his right to proceed on that claim. Petitioner's position by the Petitioner was memorialized in the order by Ms. Davis entered September 15, 1994.
At the hearing held on October 20, 1994, Petitioner proceeded on the basis that the age discrimination claim was no longer viable.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Sections 120.57(1), 760.10(1) and 760.10(7), Florida Statutes.
Consideration of this dispute is in accordance with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 817, 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 Department of Corrections v. Chandler, 582 So.2d 1183
(Fla. 1stDCA 1991).
On March 26, 1992, Petitioner filed a complaint charging the Respondent with discrimination related to age and retaliation for interfering with his employment opportunities with the Reynolds firm.
The age discrimination claim was as set forth in the Exhibit to the complaint.
Petitioner did not pursue the claim of age discrimination following the determination by the Florida Commission on Human Relations that the age discrimination claim was beyond the statute of limitations. This determination was made on December 17, 1993.
The petition for relief which Petitioner filed beyond the notification finding his age discrimination claim to be untimely, did not include an allegation of age discrimination. The petition for relief was filed on January 24, 1994. Nor did Petitioner assert substantive age discrimination claims in his prehearing statement filed on September 1, 1994 or in the prehearing conference held on September 2, 1994 as memorialized by the September 15, 1994 order. Petitioner made no attempt to advance substantive claims of age discrimination at the hearing on October 20, 1994.
What remains to be considered is Petitioner's assertion that Respondent had prevented his employment with the Reynolds firm in retaliation for his age discrimination claim. To prevail Petitioner must prove that Respondent has committed an unlawful employment practice in connection with the Petitioner's attempt to gain employment with the Reynolds firm.
Section 760.10(7), Florida Statutes, states:
It is an unlawful employment practice for an employer, an employment agency, a joint labor- management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an
unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
Respondent is an "employer" as defined in Section 760.02(7), Florida Statutes. Petitioner is a "person" as defined in Section 760.02(6), Florida Statutes. Petitioner has not shown that Respondent committed an unlawful employment practice by discriminating against him because Petitioner opposed an unlawful employment practice, i.e., that is to say that he opposed age discrimination as defined in Section 760.10(1), Florida Statutes. There has been no proof that age discrimination occurred as a means to claim an unlawful employment practice for opposing such age discrimination. Nor has Petitioner proven that Respondent has committed an unlawful employment practice by discriminating against him based upon the charges which he made against the Respondent, about which he has testified, assisted or participated in any manner related to the investigation of, proceeding about or hearing to consider those charges. The term charges relates both to the original charge of age
discrimination and the charge of retaliation by preventing the Respondent from gaining employment with the Reynolds firm.
Respondent took no retaliatory action to prevent the Petitioner from gaining employment with the Reynolds firm. Through its employee the Respondent acted in accordance with its business agreement with the Reynolds firm. Respondent through its employee objectively determined that the Petitioner did not qualify to be the office engineer on the Interstate 75 project. By this action the Respondent did not discriminate against the Petitioner for any opposition to the Respondent's practices or because Petitioner had made charges against Respondent, testified against Respondent, assisted or participated in any manner in any investigation, proceeding or hearing against Respondent.
Petitioner failed to prove by competent evidence the reasons why he was not employed by the Reynolds firm; however, to the extent that reasons may have been associated with the decision by the Respondent's employee to disprove the request to have the Petitioner assigned as the office engineer on the Interstate 75 project, that determination by Respondent was a legitimate business purpose and was not discriminatory as defined in Section 760.10(7), Florida Statutes.
Upon consideration of the facts found and the conclusions of law reached, it is,
RECOMMENDED:
That a final order be entered which dismisses the petition for relief based upon a claim of an unlawful employment practice by the Respondent as defined in Section 760.10(7), Florida Statutes.
DONE and ENTERED this 22nd day of December, 1994, in Tallahassee, Florida.
CHARLES C. ADAMS
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 22nd day of December, 1994.
APPENDIX
The following discussion is given concerning the proposed facts found in Respondent's proposed recommended order:
Paragraphs 1 through 4 are subordinate to facts.
Paragraphs 5 through 7 are not necessary to the resolution of the dispute. Paragraphs 8 through 20 are subordinate to facts found.
Paragraphs 21 and 22 are not necessary to the resolution of the dispute.
COPIES FURNISHED:
Richard C. Bishop
1606 Northeast Seventh Terrace Gainesville, FL 32609
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street
Tallahassee, FL 32399-0458
Thornton J. Williams, General Counsel Department of Transportation
562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
Sharon Moultry, Clerk Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, FL 32303-4113
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.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS
RICHARD C. BISHOP,
EEOC Case No: 15D920426
Petitioner, FCHR Case No: 92-3446 DOAH Case No: 94-0793
FCHR Order No: 95-043
DEPARTMENT OF TRANSPORTATION,
Respondent.
/
FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE
PRELIMINARY MATTERS
Richard C. Bishop, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Florida Civil Rights Act of 1992, Sections
760.01 - 760.11, Florida Statutes (Supp. 1992), alleging that the Department of Transportation, Respondent herein, unlawfully discriminated against him on the basis of his age by retaliation.
In accordance with the Commission's rules, the allegations of discrimination were investigated and an Investigatory Report was submitted to the Executive Director who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred. Thereafter, Petitioner filed a Petition for Relief From an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.
On December 22, 1994, DOAH hearing officer Charles C. Adams issued a Recommended Order of Dismissal. Pursuant to notice, public deliberations were held on May 25, 1995 in Tallahassee, Florida before this Commission, at which deliberations the panel determined the action to be taken upon the Petition for Relief.
FINDINGS OF FACT
We adopt the hearing officer's finding of fact set forth in the Recommended Order as competent substantial evidence exists in the record to support these findings.
RULINGS ON EXCEPTIONS
Petitioner filed unnumbered exceptions to the hearing officer's findings. Taking these exceptions in order, the first exception states that "the Florida Department of Transportation failed to satisfactorily answer the
interrogatories" propounded by Petitioner. The Florida Administrative Code places the authority to compel discovery with the hearing officer. See 60Q- 2.019, 60Q-2.024, and 60Y-4.019, F.A.C. Petitioner failed object to this at the hearing before the hearing officer and therefore failed to preserve the issue on appeal. As such, we decline jurisdiction to hear this matter.
Second, Petitioner states that he was prejudiced by Respondent's counsel who represented at the September 1, 1994 prehearing counsel that he would be calling three witnesses that Petitioner felt were important to his case. These included the persons from the private firm who interviewed Petitioner for the office engineer position at issue. All parties to the DOAH formal hearing are notified that it is their responsibility to subpoena their own witnesses. This is included in the initial order and Pro Se guide from DOAH. We find that Petitioner was on notice of his responsibility to subpoena witnesses and absent any evidence in the record that Respondent's counsel acted to mislead Petitioner we accordingly deny adoption of this exception.
Petitioner's exceptions, appearing to be, numbers three through eleven are exceptions to the Hearing Officer's findings of fact. As such, the Commission must follow the provisions of the Administrative Procedure Act in determining whether any of these exceptions may be adopted. The Administrative Procedure Act states:
"The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The agency may not reject or modify findings of fact, including findings of fact that form the basis of an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or
that the proceedings on which the findings were based did not comply with the essential require- ments of the law." Section 120.57(10), Florida Statutes (1993).
Petitioner argues that competent substantial evidence does not exist to support the hearing officer's findings of fact. However, the hearing officer is the fact finder. He is the one in the best position to evaluate the demeanor and testimony of the witnesses in determining their individual credibility. In this case, we find that the hearing officer's findings of fact are supported by the preponderance of the evidence in the record and may not be disturbed.
Finally, Petitioner's last exception is to the hearing officer's conclusion of law that the Petitioner was required to prove the underlying age discrimination claim in order for the retaliation claim to be sustained. (See 48, Recommended Order). Petitioner asserts that this is not the case and we find that he is correct. It is not necessary for the underlying claim to be sustained or even resolved in order to sustain a claim of retaliation.
Opposition to Respondent's practices or a charge need merely be filed. Lockhart
v. Olin Corporation, 13 FALR 4144 (FCHR 1991). We therefore adopt this exception and modify the hearing officer's finding of fact accordingly.
CONCLUSIONS OF LAW
With the modification made by the adoption of Petitioner's exception number twelve, we agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. Accordingly, we adopt the hearing officer's conclusions of law as modified.
DISMISSAL
The Petition for Relief From an Unlawful Employment Practice and the Complaint of Discrimination are DISMISSED with prejudice.
Each party is advised of the right to petition appropriate the Florida District Court of Appeal for judicial review of this Final Agency Order. Such Notice of Appeal must be filed with the court and the Commission within 30 days of the date that this Order is filed with the clerk of the Commission. Section 120.68, Florida Statutes, and Fla. R. App. P. 9.110(b).
DONE AND ORDERED this 6th day of June ,1995. FOR THE FLORIDA COMMISSION ON RELATIONS:
BY:
Commissioner Geraldine Thompson, Chairperson Commissioner Chriss Walker
Commissioner Clarethea Brooks
FILED this 22nd day of June, 1995, in Tallahassee, Florida.
Sharon Moultry
Clerk of the Commission
NOTICE TO COMPLAINANT/PETITIONER
As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission's final agency action. To secure a "substantial weight review" by EEOC, you must request it in writing within 15 days of your receipt of this order. Send your request to Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Blvd., Suite 2700, 27th Floor, Miami, FL 33131.
COPIES FURNISHED:
Richard C. Bishop, Pro Se 1606 N.E. 7th Terrace Gainesville, Florida 32609
Charles G. Gardner Asst. General Counsel
Department of Transportation 605 Suwannee Street, M.S. 58
Tallahassee, Florida 32399-0458 Jennifer M. Monrose, FCHR Legal Advisor Charles C. Adams, DOAH Hearing Officer
| Issue Date | Proceedings |
|---|---|
| Jun. 23, 1995 | Final Order Dismissing Petition for Relief From An Unlawful Employment Practice filed. |
| Jan. 17, 1995 | Petitioner`s Exceptions to Hearing Officer`s Recommended Order Tagged filed. |
| Dec. 22, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 10/20/94. |
| Dec. 02, 1994 | (Petitioner) Notice filed. |
| Dec. 01, 1994 | Agency's Proposed Findings of Fact, Conclusions of Law filed. |
| Nov. 22, 1994 | Transcript (Volumes I, II, tagged) filed. |
| Oct. 20, 1994 | CASE STATUS: Hearing Held. |
| Oct. 19, 1994 | Subpoena Ad Testificandum (from R. Bishop); Return of Service filed. |
| Oct. 13, 1994 | Respondent`s Notice of Filing; CC: Letter to E. Croft from T. Brener filed. |
| Oct. 06, 1994 | Respondent`s Notice of Filing; Respondent`s Answers to Interrogatories filed. |
| Sep. 21, 1994 | Amended Order and Notice of Formal Hearing sent out. (hearing set for 10/20/94; 10:30am; Lake City) |
| Sep. 21, 1994 | Petitioner`s Motion for Subpoenas filed. |
| Sep. 15, 1994 | Order and Notice of Formal Hearing sent out. (hearing set for 10/20/94; 10:30am; Lake City) |
| Sep. 01, 1994 | (Joint) Prehearing Stipulations filed. (from R. Bishop) |
| Aug. 29, 1994 | Respondent`s Prehearing Statement filed. |
| Aug. 29, 1994 | Respondent`s Prehearing Statement filed. |
| Aug. 19, 1994 | Petitioner`s Reply to Order to Show Cause filed. |
| Jul. 18, 1994 | Order on all Pending Motions and Cancelling Formal Hearing Pending Future Filings sent out. (Hearing cancelled; parties to file prehearing stipulation and mutual dates within 45 days.) |
| Jul. 18, 1994 | Order to Show Cause sent out. (response to questions posed at 7-11-94 telephone conference) |
| Jul. 12, 1994 | Motion to Force Compliance to Answer Interrogatories (from R. Bishop); Interrogatories to Respondent filed. |
| Jul. 08, 1994 | (Petitioner) Motion for Summary Judgement; Motion to Force Compliance to Answer Interrogatories; Joint Prehearing Stipulation filed. |
| Jul. 08, 1994 | (Petitioner) Motion to Force Compliance to Answer Interrogatories; Joint Prehearing Stipulation; Motion for Summary Judgement filed. |
| Jul. 05, 1994 | Respondent`s Notice of Service of Answers to Interrogatories; Respondent`s Answers to Interrogatories Propounded by Petitioner filed. |
| Jun. 28, 1994 | Letter to C. Gardner from EJD (Re: enclosing copy of letter from R. Bishop received 6/15/94, filed w/DOAH) sent out. |
| Jun. 15, 1994 | (2) Subpoena Duces Tecum w/Possible Witnesses for Petitioner & cover letter filed. |
| Jun. 14, 1994 | Order sent out. (parties are granted extension of time until 7/8/94 to prepare and file the joint prehearing stipulation w/DOAH) |
| May 20, 1994 | Petitioner`s Motion for Access to Personnel Files; Petitioner`s Motion for Subpoena filed. |
| Mar. 04, 1994 | Order on Motion to Strike and Continuing Formal Hearing sent out (Hearing set for 7/20-21/94; 10:30am; Lake City) |
| Mar. 02, 1994 | Respondent`s Motion to Strike; Respondent`s Answer and Affirmative Defenses filed. |
| Mar. 02, 1994 | Respondent`s Motion to Reschedule Hearing filed. |
| Feb. 22, 1994 | Notice of Hearing sent out. (hearing set for 6/16/94, with 6/17 also reserved; 10:30am; Lake City) |
| Feb. 22, 1994 | Order of Prehearing Instructions sent out. |
| Feb. 21, 1994 | Respondent`s Response to Initial Order filed. |
| Feb. 16, 1994 | Initial Order issued. |
| Feb. 14, 1994 | Transmittal of Petition; Charge of Discrimination; Notice of Determination: No Cause; Determination: No Cause; Petition for Relief; Notice to Respondent of Filing of Petition for Relief from an Unlawful Employment Practice filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 06, 1995 | Agency Final Order | |
| Dec. 22, 1994 | Recommended Order | Employer did not act in a manner which kept employee from obtaining other employment. |
