STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDRICK BASS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2450

)

THE UNIVERSITY OF WEST )

FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on September 27, 1995, in Pensacola, Florida.

APPEARANCES

For Petitioner: Fredrick Bass, pro se

75 South Madison Drive Pensacola, Florida 32505

For Respondent: M. J. Menge, Esquire

SHELL, FLEMING, DAVIS & MENGE

Post Office Box 1831 Pensacola, Florida 32598

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner, Fredrick Bass, was subjected to employment discrimination by the Respondent, The University of West Florida, on account of his race or disability or as retaliation because of his past filing of an EEOC complaint against a former employer.

PRELIMINARY STATEMENT

The Petitioner is a male, African-American, with a disability involving post-traumatic arthritis of the left knee. On or about July 28, 1994, the Petitioner filed a Notice of Discrimination with the Florida Commission on Human Relations alleging that the Respondent had denied him employment as a Senior Custodial Supervisor in November of 1993 because of his race and his disability. That charge was subsequently amended to include a charge that he had been denied the employment position in question also as retaliation because of his earlier filing of an EEOC complaint against a former employer.

The Florida Commission on Human Relations (Commission) conducted an investigation of the charges and the circumstances surrounding his prior employment and his attempt to gain the employment position at issue in this

proceeding. It determined that there was no reasonable cause to believe that an unlawful employment practice had occurred, thus, issuing a "no cause" determination. The Petitioner timely sought to contest that agency action and filed a timely Petition for Relief with the Commission requesting an administrative proceeding. The cause was duly transmitted to the Division of Administrative Hearings and the undersigned Hearing Officer for conduct of that proceeding.

The cause came on for hearing as noticed. The Petitioner presented his own testimony and presented five exhibits, which were admitted into evidence. The Respondent presented the testimony of Daniel C. Simpler, the Director of Building Services with the Respondent. Mr. Simpler is the Supervisor who had the need to fill the position of "Senior Custodial Supervisor", a position which operated under his direction and supervision. The Respondent also presented the testimony of Sheryl Hendrickson, the Director of Human Resources for the Respondent, responsible for advertising the vacancy for the position in question; and Bertha Mae Jones, the person who interviewed the Petitioner and others for the position.

Upon conclusion of the hearing, the parties requested an extended briefing schedule for submission of proposed findings of fact and conclusions of law.

That request was granted, and post-hearing proposals were timely submitted by the parties. The Respondent submitted a proposed recommended order containing separately-stated proposed findings of fact. The Petitioner presented argument and some proposed facts, essentially in letter form. Those proposed facts are not separately stated in discreet paragraphs; therefore, it is difficult to make specific rulings on them. The findings of fact in this Recommended Order and those rulings which can be made on specific factual assertions by the Petitioner in the Appendix attached hereto and incorporated by reference herein, together address all of those proposed facts.

FINDINGS OF FACT

1. The Petitioner is a black male with a disability involving a post- traumatic, arthritic condition of the left knee. In his past work history, the Petitioner had been a firefighter. When he was thus employed, on one occasion, he filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) against the fire department where he was employed.

   
   

2. The Respondent is the University of West Florida, a state agency. It became embroiled in the disputes at issue when it first advertised for the filling of a vacancy for the position of Senior Custodial Supervisor and, after the advertising and interviewing process described below, hired another black male with a disability, instead of the Petitioner.

   
   

3. The Respondent advertised to fill the vacancy for the position of Senior Custodial Supervisor because of the death of the person who had previously occupied that position. There was an insufficient response to the first advertisement of the vacancy, and Dan Simpler, the Director of Building Services for the Respondent, who would supervise the occupant of that position, requested that the position be re-advertised. The Petitioner had not responded to the first advertisement, in any event.

   
   

4. The second advertisement was issued in August of 1993. This time, the Petitioner was one of the applicants who responded.

5. Several applicants withdrew after learning that the salary for the position would be at the lower-end of the advertised salary range and was insufficient for their needs. This left the Respondent with only three remaining applicants, who appeared to meet the minimum qualifications for the position. One of the three applicants was the Petitioner.

   
   

6. The Respondent, in the conduct of its application and selection process, inquired of former employers, concerning whether they would give an applicant a favorable recommendation. The Respondent so inquired of the Petitioner's former employers. The Respondent was unable to obtain a favorable recommendation from any of the Petitioner's former employers.

   
   

7. In response to Mr. Simpler's inquiry, the Chief of the Fire Department at the Naval Air Station in Pensacola, Florida, the Petitioner's most recent former employer, informed Mr. Simpler that he would not rehire the Petitioner if given the opportunity to do so. The Petitioner had informed Mr. Simpler that he believed that the Chief of the Fire Department would not give him a favorable recommendation because the Petitioner had once filed a complaint with the EEOC against that employer.

   
   

8. In any event, Mr. Simpler deemed that having a pool of only three applicants gave the Respondent insufficient choices for the position. Therefore, he requested that the position be advertised for a third time in order to obtain a larger pool of applicants. In response to the third advertisement, a number of other applications were received. One of them was that of James O. Rankins, who is a male, African-American, who also has a disability. See Respondent's Exhibit 6 in evidence.

   
   

9. Mr. Rankins' application reflected considerable supervisory experience, both during his service with the United States Army and his position as a Site Manager for Service Master, Inc. at the Monsanto plant near Pensacola, Florida. He retired from the United States Army as a Sergeant Major, the highest non- commissioned rank. In the opinion of Mr. Simpler and others involved in the hiring at the University, this demonstrated a high level of leadership capability. Since his military retirement, in his capacity as the Site Manager for Service Master, Inc., the maintenance contractor, at the Monsanto chemical plant near Pensacola, Florida, he had supervised 45 custodial personnel. He was responsible for cleaning and maintenance of 150 buildings and shops, as well as over 250 offices and restrooms.

   
   

10. The Petitioner was an applicant in the third pool of applications in response to the third advertisement. Mr. Simpler learned of a former employer, Lanyap Corporation, and questioned the former owner concerning the Petitioner's previous employment at that firm. Larry Wiggins, the former owner of Lanyap Corporation, told Mr. Simpler that he would not rehire the Petitioner if given the opportunity to do so. Mr. Wiggins advised Mr. Simpler that the Petitioner had not been employed as a Supervisor by Lanyap Corporation, although the Petitioner had indicated that to be the case on his application for employment filed with the Respondent.

    
    

11. The five persons on the Respondent's selection committee, charged with hiring to fill the subject position, considered the qualifications and experience of all of the applicants. After evaluating all of the applicants, with the assistance of personal interviews, the committee recommended that James

    1. Rankins be employed as the Senior Custodial Supervisor. Members of the selection committee recommended Mr. Rankins for the position based upon his superior qualifications and experience, including his demonstrated leadership

       and supervisory abilities. The Petitioner's race and disability were not factors in the selection process. Indeed, Mr. Rankins is an African-American, also with a disability, as shown by the Respondent's Exhibit 6 in evidence.

       
       

12. Ms. Bertha Mae Jones is the staff member at the University who interviewed the Petitioner, as well as Mr. Rankins. Ms. Jones is black and has been employed at the University for 27 years. She does not recall hearing the Petitioner mention his handicap or disability but stated that it would not have mattered if he had one, as long as he could do the job in question. She also interviewed Mr. Rankins and felt that Mr. Rankins had much superior qualifications and experience. He demonstrated that he had had a long-term ability for good supervision. Because of his superior qualifications, Ms. Jones recommended that Mr. Rankins be hired instead of the Petitioner.

    
    

13. None of the members of the selection committee, other than the Director of Building Services, knew that the Petitioner had filed an EEOC complaint against one of his former employers. The filing of that complaint was shown to have had no effect on the hiring decision made by the Respondent's selection committee. The selection committee's recommendation that Mr. Rankins be employed to fill the position of Senior Custodial Supervisor was forwarded to the head of the department and to the Vice-President for Administrative Affairs. The recommendation was accepted. Mr. Rankins, a black male with a disability, was hired by the Respondent to fill the subject position.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

    
    

15. Chapter 760, Florida Statutes, provides that it is an unlawful employment practice for an employer to fail or refuse to hire an individual because of that individual's race or handicap. It is thus unlawful to discriminate against a person because that person has opposed any practice believed to be an unlawful employment practice under Section 760.10, Florida Statutes, or because such a person has made a charge, testified, assisted, or participated in any manner in an investigation proceeding or hearing concerning an alleged unlawful employment practice under Section 760.10, Florida Statutes. See Section 760.10(1)(a), Florida Statutes.

    
    

16. The Petitioner has the burden of proving employment discrimination. The Petitioner must first demonstrate a prima facie case of discrimination, which is established by showing that he belongs to a protected class, such as a racial minority or is a handicapped person; that he applied for and was qualified for a position for which the employer/Respondent was seeking applicants; and that he was rejected for that position despite his qualifications. He must show that after his rejection, the position remained open and that the employer continued to seek applicants with the Petitioner's qualifications or hired an applicant with lesser qualifications, who was not a member of the protected minority class. See, School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981); and Brand v. Florida Power Corp., 633 So.2d 504 (Fla. 1st DCA 1994).

    
    

17. In the face of a petitioner's demonstration of a prima facie case for discrimination in the above-mentioned context, an employer must go forward with evidence showing that there were valid, non-discriminatory reasons for its decision not to hire the petitioner. After the employer's articulation of such

    reasons, the petitioner has the burden of advancing evidence to show that the proffered reason for the employment decision was not the true reason but, rather, was a pretext for what actually amounted to a hiring decision made with discriminatory intent. See, Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991); McDonnell-Douglas Corporation v. Green, 411 U.S. 792

    (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 238 (1981); and St. Mary's Honor Center v. Hicks, 113B S.Ct. 2742 (1993).

    
    

18. A legitimate, non-discriminatory reason for an employer's decision not to hire an applicant can be that the applicant who was hired in his stead had superior qualifications. The petitioner involved would then have the burden of proving that the purported justification was a pretext for invidious discrimination. See, Fernandez v. Wynn, 653 F.2d 1273 (9th Cir. 1981).

    
    

19. In the instant situation, the Petitioner belonged to a racially- protected minority class; and he had a disability. Therefore, that element of his prima facie case was established. However, in view of his past work experience versus that of Mr. Rankins, it is apparent that Mr. Rankins has better qualifications, in terms of leadership and supervisory experience of long standing.

    
    

20. Moreover, a critical deficit in the Petitioner's qualifications has been shown by the fact that although he had represented on his application to the Respondent that he had been a Supervisor when employed by Lanyap Corporation, that, indeed, was not the case. This shows an element of unreliability or willingness to make a mis-representation to a prospective employer which could justifiably lead the Respondent to decide that such a person in its employ would not meet appropriate standards of reliability. Thus, the Petitioner has not met the minimum qualifications for the position in this regard.

    
    

21. Moreover, the selection committee was advised that the Director of Building Services, Mr. Simpler, had attempted to, but had been unable to obtain a favorable recommendation from any of the Petitioner's former employers. Two of those former employers stated to Mr. Simpler that they would not re-hire the Petitioner if given an opportunity to do so. The selection committee then determined that Mr. Rankins' qualifications and experience were superior to those of the Petitioner. In making this determination, the selection committee was not advised and had no knowledge that the Petitioner had ever filed an EEOC complaint against one of his former employers. The employment decision thus could not have been made through retaliation for the Petitioner's past history of making such a charge.

    
    

22. There could be no racially-motivated discrimination or intent to discriminate against the Petitioner because of his disability established, even if the person Mr. Simpler hired for the position had lesser qualifications, because Mr. Rankins himself is black and had an even more severe disability than the Petitioner. Thus, even if Mr. Rankins had had lesser qualifications, which was not the case, his hiring would have, at most, been due to questionable judgement on the part of the Respondent, or possibly some form of favoritism, and not legally proscribed racial or anti-disability discrimination.

    
    

23. It has been established that the reasons given by the Respondent for its employment decision are legitimate and non-discriminatory. The Petitioner has failed to present any preponderant evidence showing that he met all of the qualifications for the position, in terms of a prima facie case, nor that those reasons articulated and proven by the employer were pretextual. Mr. Rankins,

the applicant hired by the Respondent, not only is an African-American male with a disability, but has superior qualifications to the Petitioner. There has thus been no proof, by a preponderance of the evidence, that the decision of the Respondent to hire Mr. Rankins, instead of the Petitioner, was motivated by any intent to discriminate in a way proscribed by the provisions of Chapter 760, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations issue a Final Order concluding that the Respondent, the University of West Florida, did not commit an unlawful employment practice, by employing James O. Rankins to fill the position of Senior Custodial Supervisor, instead of the Petitioner.

DONE AND ENTERED this 3rd day of January, 1996, in Tallahassee, Florida.

1. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2450

Petitioner's Proposed Findings of Fact

The following numbers assigned to proposed findings of fact by the Petitioner do not correspond to any numbered paragraphs in the Petitioner's letter/proposed recommended order because there were no such numbered paragraphs.

1. The Petitioner did prove that he belonged to a racial minority, and that proposed finding is accepted.

2. The Petitioner's assertion that he was qualified for the position in question has not been proven, and that is rejected.

3. The Petitioner's proposed finding that, despite his qualifications, he was rejected for the position, is rejected because he was found to be less qualified than the applicant chosen for the position.

4. The Petitioner's proposed finding to the effect that, after his rejection, the position remained open and the employer continued to seek applicants with his qualifications, is rejected as not in accord with the preponderance of the evidence. The relevant advertisement and interviewing process was that after the third advertisement, when the Petitioner remained an applicant and Mr. Rankins' application was received, the position did not remain

open, Mr. Rankins was hired at the conclusion of that third advertisement and interview selection process.

The remainder of the Petitioner's "proposed findings", in essence, constitute argument concerning the weight of the testimony and evidence but to the extent that he attempts to assert that it has been proven factually that Mr. Simpler had not talked to the fire chief, the Petitioner's former employer, because the telephone numbers at the relevant fire station were not the same as the fire chief's actual telephone number, does not prove that Mr. Simpler did not talk to the fire chief. In fact, it is found that he did. This proposed finding, to the extent that it is one, is rejected.

The apparent proposed finding that the five board members on the selection committee found the Petitioner qualified, subject to the fact that it had received bad recommendations from former employers, is rejected as not in accord with the preponderant weight of the evidence. In fact, the Petitioner was not the best qualified person for the position, Mr. Rankins was. These are the only proposed findings of fact that can be gleaned from the letter filed by the Petitioner. The remainder constitutes an attempt at legal and factual argument which do not constitute proposed findings of fact amenable to specific rulings.

Respondent's Proposed Findings of Fact 1-13. Accepted.

COPIES FURNISHED:

Fredrick Bass

75 South Madison Drive Pensacola, Florida 32505

M. J. Menge, Esquire

SHELL, FLEMING, DAVIS & MENGE

Post Office Box 1831 Pensacola, Florida 32598

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

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana C. Baird, Esquire General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 95-002450

Orders for Case No: 95-002450