STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEIDEMARIE MOSIER, )

)

)

Petitioner, )

)

vs. ) Case No. 96-5777

)

STATE OF FLORIDA, )

DEPARTMENT OF STATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and on July 17, 1997, a formal hearing was held in this case. The hearing location was the St. Johns County Courthouse, Room 355, 4001 Lewis Speedway, St. Augustine, Florida. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (Supp. 1996).

Charles C. Adams, Administrative Law Judge, conducted the final hearing.

APPEARANCES

For Petitioner: Kenneth R. Schroff, Esquire

346 Blake Avenue

Orange Park, Florida 32073

For Respondent: Joseph Lewis, Jr.

Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Did the Historic St. Augustine Preservation Board (the Board) discriminate against Heidemarie Mosier, based upon its decision to employ an allegedly younger, less qualified person in selecting an employee for a half-time career position at a museum where Petitioner and the selectee worked at the time?

Did the Board discriminate against Petitioner in that selection process by not selecting Petitioner based upon her national origin, being of German ancestry?

Is Petitioner entitled to loss of earnings as back pay and associated benefits based upon the aforementioned alleged acts of discrimination? In the event that the Petitioner has proven acts of discrimination for which she is entitled to loss of earnings as back pay, is the State of Florida, Department of State, as the Respondent in substitution for the abolished Historic St.

Augustine Preservation Board, liable for the payment of those earnings as back pay? If successful in her claim(s) of discrimination, what amount of attorneys' fees and costs is Petitioner entitled to receive? Should the Department of State pay the attorneys' fees and costs in that instance?

PRELIMINARY STATEMENT

Petitioner filed a charge of discrimination with the Florida Commission on Human Relations (the Commission) accusing the Board of the previously described alleged acts of discrimination.

Subsequently, the Commission had not completed its investigation of the complaint within 180 days, and Petitioner elected to

request a formal administrative hearing in accordance with Section 760.11(8), Florida Statutes, and to proceed before the Division of Administrative Hearings through the option presented to her pursuant to Section 760.11(4), Florida Statutes, as if the Commission had determined that there was reasonable cause to proceed with the action. The case was received by the Division of Administrative Hearings on December 9, 1996, and the undersigned Administrative Law Judge was assigned to conduct the proceeding to resolve material disputes of fact between Petitioner and the Board in relation to her claims.

Originally the case was noticed to be heard on April 9, 1997. A motion was filed by the Board to continue the hearing to allow its new counsel to prepare for hearing. That motion was unopposed. The case was reset for hearing and held on July 17, 1997.

The Board filed a Motion to Dismiss and/or for Summary Judgment. A telephone conference was conducted on July 2, 1997, to consider the motion. Both parties presented argument during that conference. In an order entered July 14, 1997, it was determined that the Petitioner could no longer request placement in a half-time career service position as an employee of the Board. The reason for this decision was in recognition that the Board had been abolished when the Florida Legislature enacted Chapter 97-68, Laws of Florida. As determined, that left for consideration the possibility that Petitioner could prove

entitlement to loss of earnings as back pay for the alleged acts of discrimination. It was determined that the Department of Legal Affairs was responsible for defending the action as contemplated by Section 20.052(6), Florida Statutes. Initially, through the order entered July 14, 1997, it was mistakenly held that the Department of Legal Affairs would substitute as Respondent for the Board. That ruling was corrected on July 17, 1997, when the hearing commenced to reflect that the State of Florida, Department of State became the Respondent from that point forward.

At hearing Petitioner testified in her own behalf.

Petitioner's Exhibit No. 1 was admitted, but is subsumed in Respondent's composite Exhibit No. 1 that was admitted. As a consequence, only the Respondent's composite Exhibit No. 1 remains with the hearing record. In addition to Respondent's Exhibit No. 1, Respondent's Exhibits Nos. 2-14 were admitted as evidence. The Board presented Paul Tracy Spikes, Susan Van Fleet, and Patricia Eighmey as its witnesses.

Subsequent to the conclusion of the hearing, Petitioner requested that the record be transcribed. On August 18, 1997, a hearing transcript was filed. The Board submitted a proposed recommended order which has been considered in preparing the recommended order.

FINDINGS OF FACT HISTORY OF THE BOARD

1. The Board was created by Part I, Section 266.0001, Florida Statutes, and placed under the administrative supervision of the Division of Historical Resources of the Department of State, but it was governed by its own Board of Trustees during its life. Part II, Sections 266.001 through 266.008 specifically identified the activities of the Board. Among the activities exercised by the Board's Trustees was the selection of a manager, subject to final approval of the Department of State. That manager was to report to the Board's Trustees. The manager once selected was a member of the Selected Exempt Service. Section 266.0006(1), Florida Statutes. In addition to the manager, the Board's Trustees could employ other employees, as necessary, consistent with the provisions of the Career Service System Section 266.006(10), Florida Statutes.

2. The overall purpose of the Board was to restore, preserve, maintain, reconstruct, reproduce, and operate certain ancient or historic landmarks, sites, cemeteries, graves, military works, monuments, locations, remains, buildings, and other objects of historical and antiquarian interest of the City of St. Augustine and St. Johns County. Section 266.0001(1)(a), Florida Statutes. These activities were performed with the assistance of the manager and other Board employees.

3. Effective May 16, 1997, Part II of Chapter 266, Florida Statutes, consisting of Sections 266.0001 through 266.0008, Florida Statutes, was repealed by Chapter 97-68, Laws of Florida, at Section 1. Chapter 97-68, Laws of Florida, at Section 7 added paragraph (o) to Subsection (3) of Section 267.061, Florida Statutes (Supp. 1996). Through that legislation the Division of Historical Resources was obligated to establish regional offices for the purposes of assisting that Division in delivering historic preservation services to St. Augustine, among other communities. In accordance with Chapter 97-68, Laws of Florida, Section 8, the management of state-owned properties that had been the responsibility of the Board was turned over to the City of St. Augustine through a contract entered into between the Department of State and the City of St. Augustine. This was an arrangement in which the proceeds derived from the management of the state-owned properties would be used for purposes of maintaining buildings and advancing historic preservation. Moreover, funds that remained from the Board's operating trust fund could be appropriated to the City of St. Augustine for the maintenance of state-owned buildings in advancing the historic preservation in St. Augustine. The Department of State could transfer ownership and responsibility for artifacts, documents, equipment, and other forms of tangible property to the City of St. Augustine to assist the city in the transition of management of the state-owned property. The Department of State was

   authorized by this legislation to use the unexpended balance of up to $500,000 in general revenue funds as provided in the 1997- 1998 General Appropriations Act for the St. Augustine Preservation Board, for the purpose of entering into contracts with the City of St. Augustine to continue the operations and maintenance of historic properties. Although Chapter 97-68, Laws of Florida, did not address the employment status of persons who worked for the Board prior to its abolishment, the record reveals that certain employees, to include Petitioner, transitioned from the Board to the City of St. Augustine effective July 1, 1997, to perform similar duties to those carried out prior to that date.

   PETITIONER'S CLAIMS

   
   

4. Petitioner was born July 19, 1944, in Germany. She has since become an American citizen. She speaks English fluently.

5. In September 1962, Petitioner received a diploma from Ludwig-Meyn Gymnasium, Bremen-Germany. This was the equivalent of a high school diploma in the United States. From October 1962 through September 1965, Petitioner attended Berufsschule Business College in Stuttgart, Germany, participating in a business course with a specific emphasis in the import and export business.

6. From January 1980 through July 1982, Petitioner served as a client manager for Pine Castles Center for Living in Jacksonville, Florida. Her position there involved the teaching of mentally-challenged adults in the fields of basic education and daily self-care. It also involved the teaching of arts and

   crafts and the providing of finished products for Pine Castle Center Gift Shop.

7. From March 1983 until November 6, 1984, Petitioner worked for the Board in an Other Personnel Services (OPS) position in which she interpreted the history of St. Augustine, Florida, for visitors to exhibits managed by the Board. In the OPS position, Petitioner demonstrated arts and crafts and daily living of the 18th-century period in St. Augustine in the exhibit area of the Spanish Quarter Museum. In this assignment Petitioner occasionally filled in for career service employees on their days off. This substitute duty included operating the cash register and demonstrating spinning, weaving, and cooking from the period represented by the exhibit.

8. From November 6, 1984, through June 30, 1997, Petitioner worked as a museum artisan employed by the Board in a one-half time career service position. This involved selecting and ordering historically correct fabric for the Spanish Quarter Museum wardrobe. It also involved the construction of new clothing and the maintenance of existing clothing and accessories for the employees who worked for the Board. During this time Petitioner occasionally filled in as an office worker in any capacity for which she was needed and served as an interpreter in the Spanish Quarter Museum operated by the Board.

9. The information that has been described concerning Petitioner's education and job experience was set forth in an

   application which Petitioner made on June 16, 1995, to be employed as a half-time museum guide for the Board in position 00467. In applying for that position it was Petitioner's intention to hold her current employment as a museum artisan in the half-time career service position while simultaneously performing a half-time career service position as a museum guide.

10. In her complaint alleging discrimination in contravention of Section 760.10, Florida Statutes, Petitioner claims that she was denied the position of half-time museum guide in a circumstance where a younger, less qualified candidate was selected. Moreover, Petitioner alleges that she was not selected because she was the only person of German ancestry who sought that position.

11. Paul Tracy Spikes, at times relevant to this inquiry, was the Museum Administrator for the Board. On May 30, 1995, consistent with requirements in the career service system,

    Mr. Spikes submitted for approval a Task/KSA identification form in relation to the position entitled, 00467 museum guide (shared), together with a list of screening criteria, interview questions, rating scale form, willingness questionnaire, and employer reference check form. KSA stands for knowledge, skills, and abilities. These materials constituted the selection module associated with filling the position of museum guide. The proposed selection module was considered by the Bureau of Personnel Services for the Department of State and approved, as

    evidenced by a memorandum transmitted from the Bureau of Personnel Services for the Department bearing the supervisor's signature from that organization dated June 7, 1995.

12. More specifically, the Tasks/KSA identification form outlines the major four or five tasks to be performed by the employee filling the museum guide position and what knowledge and ability the employee must have to perform the job.

13. The screening criteria to preliminarily determine the more fit candidates for the position through a grid assigning points for various work related experiences, college level course work, and veterans preference points were used in selecting the employee to fill the job. Should a candidate for the position survive the screening process, then the candidate would be interviewed personally. The interview questions consisted of 8 uniform questions designed to identify the knowledge of the candidate of historical interpretation, the candidate's ability to communicate, the candidate's knowledge of basic arithmetic, the candidate's knowledge of the principles of correct grammar usage, and the candidate's ability to present information in an organized manner. Each interview question carried a maximum of 5 points. There was also the opportunity to assign veteran's preference points to an interviewee. The rating scale form in the module assigned points for experience and the ability to communicate effectively in relation to the questions posed in the interview. Questions 2, 4, 7, and 8 were in relation to the

    ability to communicate. The other questions related to experience. The rating scale form described the basis for assigning 0 points, 3 points, and 5 points for the respective questions.

14. The willingness questionnaire related to the willingness of a candidate to work on weekends and occasionally on evenings.

15. The employer reference check form called upon the present or former employer to rate the candidate and to describe the nature and quality of performance while the candidate was or had been employed by the present or former employer.

16. The module and its components are parts of Respondent's Exhibit No. 1 admitted into evidence.

17. In relation to the opportunities for persons employed in a career service position with the Board, the Florida Department of State Career Service Employee Handbook indicated that:

    Employees shall conduct the Department's business in the manner conducive to equal opportunity without regard for age, race, color, sex, religious creed, national origin, political opinions or affiliations, marital status, or handicap. Discrimination and/or harassment is prohibited.

    
    

18. Similarly, the Florida Department of State Affirmative Action Plan indicates:

    In issuing this Affirmative Action Program the Department of State affirms its commitment and pledges its full support to

    equal employment opportunity (EEO) for all persons regardless of race, religion, sex, religious creed, national origin (including those for whom English is a second language, or those who may have legal status as immigrants), marital status, physical handicap, medical condition, age, status as a disabled veteran or veteran of the wars including Vietnam, or political opinions, or affiliation.

19. Petitioner was not the only Board employee who applied for the half-time position as a museum guide. Lisa Hill, whose date of birth is December 20, 1972, also applied. Lisa Hill's present name is Lisa Hill-Calvert.

20. In her application for the half-time museum guide position, Ms. Hill referred to her receiving a high school diploma from Allen Allnease in Jacksonville, Florida, in April 1991. Further, she stated that her education included earning a degree in English with a minor in Communications in December 1994 from Flagler College in St. Augustine, Florida. In her job experience Ms. Hill stated that she had worked for Wal-Mart in Jacksonville, Florida, from August 1989 through September 1994 during the summers and holidays in customer service and sales. She indicated working for an employer, "All for One," in

    St. Augustine, Florida, during the period January 1995 through March 1995, in customer service, sales, and stocking. She indicated job experience with Wave 1428 AM Radio during the period August 1994 through June 1995, doing live on-air announcing, production, and public relations. Ms. Hill indicated

    in her application that she worked for Wilder Communications from December 1994, to the time of her application editing scripts and announcing. Before applying for the half-time position as museum guide, Ms. Hill indicated that she worked in an OPS position as officer-of-the-day for the Board from March 1995 to the time of the application and described her duties as opening and closing the museum, supervising staff, and maintaining daily reports, etc.

21. From the record it can be reasonably inferred that Ms. Hill was born in the United States and that Ms. Hill is fluent in English.

22. Petitioner and Ms. Hill are females.

    
    

23. Both the Petitioner and Ms. Hill were told that they should not assume that any interviews held with those candidates in relation to the application for the half-time museum guide position would be in a setting in which the interview panel knew anything about those candidates beyond what was revealed by the candidates in the interview sessions and through their respective applications. Petitioner and Ms. Hill were reminded of that approach in view of the familiarity of the interview panel with Petitioner and Ms. Hill as their co-employees. It is assumed that these arrangements were made to not create an advantage for Petitioner and Ms. Hill in comparison to persons who were not presently working for the Board and who were being interviewed for employment in the half-time museum guide position.

24. Consistent with the practices of the Florida Department of State, a job opportunity announcement was prepared in relation to Position Number 00467, Museum Guide, which reminded the reader that the employer was an equal opportunity/affirmative action employer, which hired only U.S. citizens and lawfully authorized alien workers.

25. Numerous applicants applied for the position. Some applicants did not qualify for an interview. Seven applicants passed the initial screening and were offered the opportunity to interview. Five applicants participated in the interview process. Petitioner and Ms. Hill were among those persons who passed the screening and were interviewed.

26. The three other candidates interviewed were as follows: Kenneth Reynolds, a male born March 3, 1950; Elizabeth Roberts, a female, who graduated from high school in May 1990; and Peggy Swift, a female, born December 10, 1935.

27. The decision to hire was based upon the scores received in the interview process. Nonetheless, Petitioner and Ms. Hill received similar preliminary screening points.

28. Once the screening process had been concluded, those persons to be interviewed were considered on an equal footing pending the interview. The interview was designed to select the best among qualified applicants.

29. As referenced before, all members of the interview team were employees of the Board. In addition to Mr. Spikes; Susan

    VanFleet, Museum Education Program Representative; and Patricia Eighmey, Museum Education Program Specialist, participated in the interview sessions with the candidates and rated the interviewees. The three evaluators who conducted the interviews scored each candidate in association with the eight interview questions for a maximum of 40 points. The scores assigned were based upon individual choices by the evaluators. In turn, the respective scores assigned by the evaluators were added together to reflect the final score for each candidate.

30. Each evaluator had a set of interview questions available to rate each candidate. The sheets which contained the interview questions had spaces available to allow the interviewers to make written remarks concerning the answers provided by the candidates to assist in the assignment of scores.

31. Scores for the candidates that were interviewed were not assigned in comparison to other interviewees. The scores were assigned based upon the candidate's performance during the individual interview session.

32. The maximum points that could have been earned by a candidate was 120 points. Ms. Hill received 118 points, Mr. Reynolds received 112 points, Ms. Roberts received 104 points, Petitioner received 102 points, and Ms. Swift received 80 points.

33. The career service system position description for the museum guide position stated:

    Percentage of time for each

    
    

    40 Conducts public tours of exhibit buildings. Interprets the history and culture of colonial St. Augustine, the collections, buildings and artifacts to the public. Describes program of the Historic St. Augustine Preservation Board. Wears period dress in keeping with historic program.

    
    

    30 Employs interpretive skills toward the accomplishment of a variety of specific historic activities which enhances the visitors' museum experience.

    
    

    20 Assists in maintaining security of exhibit buildings and collections. Assists in inspecting and maintaining buildings, collections, and grounds. Performs light cleaning.

    
    

    20 Sells tickets, receives money and makes change, keeps record of tickets sold, and reports sales and income at close of business day.

    
    

    5 Attends training programs; performs other related duties as required.

    
    

34. In assigning scores for Petitioner's interview,

    
    

    Mr. Spikes noted that Petitioner did not answer questions as fully as they might have been answered to satisfy him. Sometimes the responses that were given to the questions were not, in

    Mr. Spikes' view, "right for that position that we were looking for." Mr. Spikes recalled that the reason the Petitioner expressed an interest in the half-time museum guide was to allow her to combine that half-time career service position with the half-time career service position as an artisan so that

    Petitioner could receive full-time benefits for a full-time job. Petitioner felt that obtaining the half-time career service position would benefit her as far as health insurance and retirement opportunities. By comparison, Ms. Hill in her interview expressed an interest in a career in museums and stated that she loved coming to work "so far" and really liked the job she occupied at that time.

35. As Mr. Spikes recalls, Ms. Hill went into depth about the types of things that she had been doing for the Board and how she liked working with everyone. Ms. Hill had been working as the officer-of-the-day, which gave her a huge amount of responsibility, according to Mr. Spikes. As Mr. Spikes recalls, as officer-of-the-day Ms. Hill became familiar with the different facets of the functions performed by other employees.

36. Mr. Spikes observed that the communication skills Ms. Hill expressed in her interview were stronger than the communication skills that Petitioner expressed in her separate

    interview. Communication in this sense is related to the ability to make connection with the interviewer.

37. Mr. Spikes noted the difference in the assignment of scores between Ms. Hill and the Petitioner was based on the contrast in their answers, not a direct comparison between their answers.

38. In response to question 2 in the interview which states: "Service to the visitor is important. Please indicate

    how you feel a visitor should be treated and what you feel are your responsibilities to the visitor," Mr. Spikes noted that Petitioner answered this question by indicating that Petitioner should be a host to the visitor and should stress the civilian life of the people living there in the period depicted in the museum exhibit. Petitioner's answer indicated that she preferred first-person interpretation but that the museum used third-person interpretation. First-person as Mr. Spikes perceives it is the instance where a person is more in the character of the time depicted in the museum. Third-person is more of a narration by the guide in which the guide does some role-playing. Mr. Spikes gave Petitioner a three-out-of-five points for this question.

39. Ms. Hill received the five-point maximum for question number 2. Ms. Hill's answer, as Mr. Spikes recalls it, was to treat the visitors as Ms. Hill would like to be treated if she were coming to visit a museum. Ms. Hill stated that she liked to stress that the village in the museum was a Spanish village and felt the need to be extremely friendly and enthusiastic to the visitors. Ms. Hill then indicated in her answer that she liked to initiate questions and answers to persons coming to the museum. Ms. Hill indicated that she would initiate questions

    to the visitors to get those persons to interact with her.

    
    

    Mr. Spikes recalls that the answer to question 2 and answers to other questions given by Ms. Hill were very clear and understandable and that her presentation was logical in relation

    to the service being performed for the visitor and the importance of that service.

40. Mr. Spikes distinguished between the scores given to Petitioner and Ms. Hill in relation to question 7 which asked: "what are your professional career goals?" Mr. Spikes recalls that the Petitioner wanted to work as long as she was physically able, that she wanted a higher-level position, that her heart was in interpretation, that she wanted to be full-time, and that she could work under all conditions. In the response which Petitioner gave to question 7, wherein she stated that her "heart was in interpretation," Mr. Spikes was not certain what was meant by the Petitioner in that remark because Petitioner did not further explain the meaning. Ms. Hill stated that she really enjoyed the museum field. Ms. Hill stated she wanted to stay with the museum field for a longer period of time and especially enjoyed the type of work she was doing at present. Mr. Spikes considered that the answer Ms. Hill gave was more in line with the types of goals that were being set for the museum program. For her answer to question 7, Petitioner received a score of three. Ms. Hill received a score of five.

41. Mr. Spikes differentiated between the scores assigned to Petitioner and Ms. Hill in relation to question 8. Question 8 asked: "Why are you interested in this position?" Petitioner received a score of three for her answer, whereas Ms. Hill received a score of five. The answer which Petitioner gave for

    question 8 was the same as the answer given for question 7. Ms. Hill's answer given for question 8, as Mr. Spikes recalls, was that she was interested in the position because of her career goals, that there was more challenge and responsibility in relation to the museum field, and that anything that helped her to gain more experience in that field was desirable.

42. Overall Mr. Spikes felt that Ms. Hill showed more enthusiasm for getting the position that was being offered than did the Petitioner.

43. Mr. Spikes recalls that in the interview conducted with Ms. Hill, the answers that candidate gave were in-depth, whereas Petitioner's separate interview tended to center around the fact that Petitioner wanted the job so she could have full-time benefits.

44. Ms. VanFleet based her ranking of the applicants who were interviewed upon answers given to the questions that were posed during the interview sessions. In relation to question 2, Ms. VanFleet gave the Petitioner three points and Ms. Hill five points. These scores were assigned based upon the fact that the Petitioner answered the question by stating that the Petitioner is the host to the visitors, somewhat of a teacher. Petitioner indicated that she shows the visitors about civilian life in eighteenth century St. Augustine, leaving open the possibility for questions directed from the visitors to the Petitioner, after having given the visitors enough information to be able to ask

    questions. In dealing with school kids, Petitioner indicated that her response to those children depended upon the ages of the children. Ms. Hill's response to that question was that the visitor should be treated as Ms. Hill would like to be treated: that the visitors are greeted, that she smiles at the visitors, that she acts enthusiastic with the visitors, that she initiates conversations leading to questions and answers, and that she lets the visitors know she is accessible.

45. In relation to question 3 within the interview questions Ms. VanFleet gave Petitioner three points. She awarded five points to Ms. Hill. Question 3 asked, "What experience do you have in a work setting handling financial transactions?" Petitioner answered the question by stating that she had operated a cash register at the Spanish Quarter within the museum when necessary. Ms. Hill said that she had five-years experience at Wal-Mart as a cashier.

46. In relation to questions 7 and 8, Petitioner received a score of three from Ms. VanFleet. Ms. Hill received a score of five for the answers given to questions 7 and 8. In relation to question 7, Petitioner said that she wanted to work as long as she was able and that she wanted a full-time position. Ms. Hill answered question 7 by stating that she was interested in the museum field and that she liked the living history context.

    Ms. VanFleet recalls the answer given to question 8 in that the Petitioner repeated the answer that had been given to question 7.

    Ms. Hill gave a somewhat similar answer to question 8 compared to question 7, in that she said she was interested in a career in the museum field, wanted more challenges, and wanted to gain more experience. The differentiation in the scoring for question 8 was based upon Ms. VanFleet's anticipation of the "kind of answer" that she was expecting. Her expectation was that she was desirous of finding a person who was interested in the museum guide position because that person wanted a career in museums, whereas Petitioner answered that she wanted a full-time position without further explanation.

47. Ms. VanFleet consciously attempted to set aside her familiarity with Petitioner and Ms. Hill as co-workers when determining the scores to assign in association with the interview process. Again, this was in furtherance of the attempt to not favor persons with whom the interviewers were familiar at the expense of those persons who were unknown to the interviewers prior to the interviews being conducted.

48. Ms. Eighmey based her scores for answers to the interview questions solely upon the answers given to those questions. Ms. Eighmey was not influenced by other persons in making decisions about the scores to be assigned in the answers to interview questions.

49. She distinguished between the scores assigned to Petitioner and Ms. Hill in response to question 4. Question 4 asked: "What experience do you have in work settings that

    include public orientation and handling inquiries?" The score given to Petitioner was a three. The score given to Ms. Hill was a five. Specifically, Petitioner said that she had been a guide for five years and had given full orientations to different groups. Those groups included children and adults. The size

    of the groups included small groups and single-person tours.

    
    

    Ms. Hill responded to question 4 by indicating that she had been the president of a communication club and vice president of a drama club. Ms. Hill said that she frequently had to answer questions about the club and handle inquiries and was a volunteer at a radio station where she had to give orientations and handle inquiries.

50. Following the interview process, Ms. Hill was certified as eligible for the shared position as museum guide in accordance with the process of the Department of State, and she accepted the position in August 1995.

51. The proof does not reveal that Ms. Hill was less qualified to fill the shared museum guide position than Petitioner.

52. The protocol followed in selecting an employee to fill the shared museum guide position sought by Petitioner and others was fair and impartial and did not discriminate against the Petitioner on the basis of her age or national origin. Similarly, the persons responsible for making choices in accordance with the protocol carried out their responsibilities

    in a fair and impartial manner without discriminating against the Petitioner based upon age or national origin.

53. More specifically, nothing in the selection process, nor in the record as a whole, indicates that the Petitioner was denied the museum guide half-time position based upon the fact that she was of German ancestry.

54. Generally, Mr. Spikes' view of the Petitioner is that Petitioner does not have a problem orally communicating with the public.

55. As Petitioner explains in her deposition testimony, admitted as evidence in the hearing, which is Respondent's Exhibit 14, and as evidenced by her testimony at hearing, she speaks English "quite well." She acknowledges that she is less proficient in writing English. Her writing, which Mr. Spikes had to approve in the past, in relation to her employment, led him to correct Petitioner's spelling and content, in particular content. In one instance, a document that had been written was not acceptable to Mr. Spikes, in that he believed it to be too negative in its import, and he expressed the view to the Petitioner that the document needed to be more positive in its tone. He commented, "We don’t need Gestapo tactics."

56. In addition, the three members on the selection panel who interviewed candidates for the half-time museum guide position were well known to the Petitioner, being co-workers, and Petitioner believes that she probably mentioned the fact to those

    persons that she was German by ethnic background. However, Petitioner comments on her "very slight accent" and indicates that people, visitors, and co-employees notice an accent, but do not necessarily know that she was born in Germany.

57. These circumstances do not lead to the conclusion that Petitioner was not selected for the museum guide position because of her German ancestry.

58. In October 1996, Mr. Spikes offered a half-time OPS position to Petitioner in addition to Petitioner's half-time career service position as a museum artisan. Petitioner declined the opportunity to work half-time in the OPS position in addition to her present duties. An OPS position does not carry with it benefits other than the salary earned.

59. In addressing her concerns about the decision to hire Ms. Hill to her exclusion, Petitioner did not resort to the grievance procedures available through the career service.

    CONCLUSIONS OF LAW

    
    

60. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes (Supp. 1996), and Section 760.11, Florida Statutes.

61. Section 760.10(1), Florida Statutes provides that it is unlawful for an employer to:

    . . . fail or refuse to hire any individual, or otherwise to discriminate against any individual, with respect to compensation, terms, conditions, or privileges of employ- ment, because of such individual's . . . national origin, age . . . .

    
    

62. While she was employed by the Board Petitioner was a member of the career service system of the State of Florida, Section 266.0006(10), Florida Statutes. As such, her employer met the definition of "employer" at Section 760.02(7), Florida Statutes, by inference, in that Petitioner was an employee of the State of Florida, and the State of Florida had more than 15 employees for each working day in each of 20 or more calendar weeks during the time in question.

63. Petitioner is an "aggrieved" person, within the meaning of Section 760.02(10), Florida Statutes, in that she had filed a complaint with the Commission related to the Board's alleged misconduct by denying her a shared position as a museum guide, by hiring instead a younger person who is less qualified, and by not selecting Petitioner because she was the only person of German ancestry who applied for the job. In terminology associated with Section 760.10(1), Florida Statutes, Petitioner alleged a specific act of discrimination in the Board's hiring practices related to Petitioner's national origin and age.

64. Based upon the matters in the file of the Division of Administrative Hearings noticing the transmittal of this case to the Division for purposes of a formal hearing, Petitioner is

    allowed to proceed in this forum as contemplated by Section 760.11(4) and (8), Florida Statutes.

65. When the Board was repealed by action of the Florida Legislature enacting Chapter 97-68, Laws of Florida, Section 1, the repeal made moot the possibility that Petitioner could be placed in a half-time career service position as a museum guide working for the Board. Consequently, Petitioner's potential remedies in this case are in association with her claim for loss of earnings as back pay. Petitioner may also potentially claim loss of benefits in association with the half-time career service position as museum guide for the period from the date upon which Ms. Hill was hired until the Board ceased to exist.

66. The Department of State, Division of Historical Resources succeeded the Board following its repeal, to the extent that the Division, in accordance with Chapter 97-68, Law of Florida, Section 7, was obligated to establish a regional office in St. Augustine for the purpose of assisting itself in the delivery of historic preservation services to the City of

    St. Augustine and the citizens of Florida and the requirement to establish a citizens support organization, whose Board of Directors would be appointed by the Secretary of State. In addition Chapter 97-68, Laws of Florida, Section 8, created the following responsibilities in relation to activities previously performed by the Board:

    The Department of State shall contract with the City of St. Augustine for the management of the various state-owned properties presently managed by the Historic

    St. Augustine Preservation Board of Trustees. The contract shall provide that the City of St. Augustine may use all proceeds derived from the management of state-owned properties for the purpose of maintaining the state- owned buildings and advancing historic preservation in the City of St. Augustine.

    Additionally, the department may appropriate all remaining funds in the Historic

    St. Augustine Preservation Board Operating Trust Fund to the City of St. Augustine for maintenance of the state-owned buildings and advancing historic preservation in the City of St. Augustine. The Department of State may transfer ownership and responsibility to any artifacts, documents, equipment, and other forms of tangible personal property to the City of St. Augustine to assist the city in the transition of the management of state- owned properties. The Department of State is authorized to use the unexpended balance of up to $500,000 in general revenue funds, as provided in the 1997-1998 General Appropriations Act for the St. Augustine Preservation Board to enter into contracts with the City of St. Augustine to continue the operations and maintenance of historic properties.

    Under the circumstances, the Department of State was substituted as the Respondent to defend this action.

67. To assist in the resolution of employment discrimination cases, Florida has adopted federal standards, which standards are applicable to cases arising under Chapter 760, Florida Statutes. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

68. Having alleged discrimination in the treatment accorded her based upon national origin and age, Petitioner bears the ultimate burden of demonstrating that she was a victim of intentional discrimination because of her national origin or age. Florida State University v. Sondel, 685 So. 2d 923 (Fla. 1st DCA 1996). More particularly, Petitioner must make a prima facie showing of her allegations, followed by Respondent's opportunity for rebuttable of any inference created of discrimination by offering legitimate, non-discriminatory reasons for its action and the opportunity for Petitioner to finally prove that the reasons articulated by Respondent were false and in reality discrimination was the reason for Respondent's action denying Petitioner the job she sought. McDonnell Douglas v. Green,

    93 S.Ct. 1817 (1973).

    
    

69. Being of German origin, she was subject to protection against discrimination based upon that origin.

70. Likewise, when Petitioner applied for the shared museum guide position, she was in the age group protected against discrimination. Verberaeken v. Westinghouse Elec. Corp., 881 F.2d 1041 (11th Cir. 1989).

71. Ms. Hill was not a member of the class protected because of age.

72. Petitioner has shown that she was qualified to fill the shared museum guide position. Ms. Hill was also qualified.

73. Ms. Hill was given the job as shared museum guide to Petitioner's exclusion.

74. Arguably, Petitioner has established a prima facie showing of age discrimination. Nonetheless, the protocol for selecting the shared time museum guide and the manner in which it was implemented do not reflect age discrimination. The decision was based upon legitimate means that did not penalize the Petitioner based upon her age and comport with the well- established methods for hiring career service employees, in a setting, that by its design and application, is not discriminatory in nature. Petitioner did not overcome those reasons expressed by the Board for selecting Ms. Hill and not the Petitioner to fill the shared time position as a museum guide. The Board's justifications for its choice were real and non- discriminatory. They did not constitute falsehoods as a means to conceal a discriminatory practice directed to the Petitioner based upon Petitioner's age.

75. Concerning the allegation of discrimination based upon national origin, Petitioner has failed to make a prima facie showing that the decision to hire Ms. Hill was an act that excluded Petitioner from consideration based upon the fact that she was German in origin. In any event, the Board for the reasons previously described legitimately chose Ms. Hill in a setting in which Petitioner's national origin had no part to play and Petitioner offered no counter to that proof through showing

    that the reasons articulated for selecting Ms. Hill were false and that the real reason Ms. Hill was selected was related to the unwillingness of the Board to hire the Petitioner based upon her national origin.

76. Having concluded that Petitioner's cause is without merit, there is no need to discuss Petitioner's claim for damages as back pay and other benefits and entitlement to attorneys' fees and costs.

RECOMMENDATION

Based upon a consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which dismisses Petitioner's charge of discrimination based upon age and national origin.

DONE AND ENTERED this 17th day of September, 1997, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1997.

COPIES FURNISHED:

Kenneth R. Schroff, Esquire

346 Blake Avenue

Orange Park, Florida 32073

Joseph Lewis, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

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

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, Esquire Commission on Human Relations 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 written exceptions within 15 days from the date of 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: 96-005777

Orders for Case No: 96-005777