STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUSBON BROWN, JR., )

)

Petitioner, )

)

vs. ) Case No. 99-4040

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 24, 2000, in Daytona Beach, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ausbon Brown, Jr., pro se

Post Office Box 10946

Daytona Beach, Florida 32120-0946

For Respondent: Kevin E. Hyde, Esquire

Latasha A. Garrison, Esquire Foley & Lardner

200 Laura Street Jacksonville, Florida 32202

Daniel T. Medved, Esquire Department of Children and

Family Services

210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114-3269

STATEMENT OF THE ISSUE

The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.

PRELIMINARY STATEMENT

This matter began on December 5, 1997, when Petitioner, Ausbon Brown, Jr., filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that Respondent, Department of Children and Family Services, had violated Chapter 760, Florida Statutes, by "classifying positions and varying the conditions of employment" for various positions he had applied for with that agency. On August 18, 1999, or over 20 months later, the Florida Commission on Human Relations issued its Determination: No Cause. Thereafter, Petitioner filed his Petition for Relief in September 1999. The case was then referred to the Division of Administrative Hearings on

September 27, 1999, with a request that an Administrative Law Judge conduct a formal hearing.

By Notice of Hearing dated October 12, 1999, a final hearing was scheduled on February 24, 2000, in Daytona Beach, Florida.

At the final hearing, the undersigned granted Respondent's Motion in Limine, which excluded all evidence pertaining to claims filed against other agencies.

At the final hearing, Petitioner testified on his own behalf. Also, he offered Petitioner’s Exhibits 1-9, which were

received in evidence. Respondent presented the testimony of Christine M. Davenport, District 12 Administrator, and Carolyn C. Dudley, Director of the Office of Civil Rights. Also, it offered Respondent's Exhibits 1-3, which were received in evidence.

A Transcript of the hearing was filed on March 16, 2000. Proposed Findings of Fact and Conclusions of Law were filed by Petitioner and Respondent on March 27 and 30, 2000, respectively. Both filings have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Because of a "gut feeling that something was wrong" when he was not hired, Petitioner, Ausbon Brown, Jr. (Petitioner), an African-American male born on April 25, 1943, filed a complaint alleging that Respondent, Department of Children and Family Services (Department), unlawfully refused to hire him for any one of four positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took over twenty months to complete, the Commission issued a Determination: No Cause on August 18, 1999.

2. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law.

3. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University.

4. Petitioner's job applications reflect that from

   
   

   June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service, including as a "survey statistician," "operations research analyst," "chief turtle headstart," "fisheries biologist," "fisheries technician," and "equal opportunity employment counselor." Petitioner then apparently retired from federal service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). His current employment is not of record in this case.

5. Although Petitioner says he applied "continuously" for at least fourteen positions with the Department after leaving federal service, only four applications are in issue here. They involve positions 012123, 10081, 60287, and 60288. Position

   012123 was a Management Review Specialist in the Department's Tallahassee district office ; position 10081 was an Operations and Management Consultant II at the Northeast Florida State Hospital in Macclenny; position 60287 was an Operations and Management Consultant II in the Department's Daytona Beach district office; and position 60288 was an Operations and Management Consultant II at the Department's central office in Tallahassee.

6. Position 60287 was originally assigned to the Family Safety and Preservation Program in District 12 and required that the applicant have experience in child neglect and foster services. It was first advertised through a Job Opportunity Announcement (JOA) published on December 24, 1996. Because it was a "highly responsible" position that more closely fit within District Administration, the position was later "pulled" from the Family Safety and Preservation Program and transferred to District Administration.

7. On January 8, 1997, Jane Miller (Miller), a black female and at that time a Program Administrator for the Family Safety and Preservation Program, submitted an interoffice memorandum requesting that she be given a 2-step demotion from pay grade 25 to 23, so that she could fill the position. It can be inferred from the evidence that her request for a demotion was due to a legislatively-mandated reorganization in 1997 that eliminated or transferred a number of positions. Because it was in the best

   interest of the Department, and Miller was fully qualified to assume the position, the Department decided to fill the slot through a demotion rather than from the applicant pool, and Miller's request was granted. After the position was transferred to District Administration, however, she demoted into another position involving day care licensure, rather than 60287.

8. In response to the JOA, Petitioner timely filed his application. On January 14, 1997, he received a letter from the Department which advised that the position was being "filled by an employee who has taken a voluntary demotion with the department to assume this role." Although this ultimately turned out not to be true, when the letter was sent, the Department did in fact intend to fill the position through Miller's demotion, and thus it was an accurate representation at that time. The undersigned rejects the contention that the above letter, without a second letter to applicants explaining what actually occurred later, proves that there was discrimination.

9. As noted above, after the January 14 letter was sent, the position was transferred to District Administration. A short time later, the reorganization of the Department was implemented, and Betsy Lewis (Lewis), a female whose age and race are unknown, filled the slot through a lateral reassignment that became effective on October 27, 1997. Prior to her reassignment, Lewis had held a similar position and was fully qualified. There was no evidence that the Department accepted Miller's demotion, then

   transferred the position to District Administration, and then laterally reassigned Lewis in order to deny Petitioner employment on account of his age, race, or gender.

10. Position 60288, also an Operations and Management Consultant II, was located at the Department's central office in Tallahassee, Florida. Under current record retention requirements for that office, the Department purges "all records for employment received from individuals seeking employment but [who] were not hired" two years after the application deadline. Because more than two years have gone by since the application deadline, all of the records pertaining to the applicants who sought that position have been purged; therefore, a complete file relating to this position was not available at the final hearing.

11. Position 60288 involved the compilation, analysis, and reporting of substance abuse data for the Department's substance abuse program. After he filed his application, Petitioner was given a telephone interview by Dr. L. E. Stivers, Program Administrator for Policy Integration & Information Systems. Although Petitioner says he had a "congenial interview" with

    Dr. Stivers, he was not considered because of a lack of proficiency in substance abuse language. Because Petitioner did not believe that knowledge of substance abuse was a prerequisite for a computer-related job in the substance abuse program, he asserted that Dr. Stivers was biased towards him, was "stretching for a reason to eliminate [him]," and used the lack of

    proficiency in drug abuse language as a pretext for not hiring him. These assertions have been rejected as not being credible.

12. Of the candidates interviewed for the job, only three names were submitted to the Assistant Secretary for Substance Abuse for further consideration. Petitioner was not one of the three. Ultimately, a male (Robert Morrell) whose age and race are unknown, was hired for the job. That individual had direct experience in performing substance abuse data collection in the same department where the position was located, and he was the most qualified candidate.

13. Position 10081, an Operations and Management Consultant II, was assigned to the Northeast Florida State Hospital in Macclenny, Florida. According to the vacancy announcement, the position's duties included "the support, consultation and guidance of the Unit Treatment and Rehabilitation Directors in the development and implementation of policies and procedures in the multi-discipline treatment and rehabilitation of mentally and physically ill residents in the area of Unit Operations." Thus, the position required that the individual have a working knowledge of the treatment of mental health patients and preferably a background in mental health.

14. Petitioner met the minimum qualifications stated in the job announcement document and, along with seven other candidates, was given an interview. All candidates were asked the same questions. Petitioner contended that none of the questions asked

    were relevant, and most dealt with the "treatment of patients." This is hardly surprising, however, since the facility treats the mentally ill. A contention that the questions were unfair and were framed so as to exclude all "external" candidates has been rejected.

15. The position was ultimately filled by Mary Jane Hartenstein (Hartenstein), a white female who was younger than Petitioner, and who received the highest score of all the applicants. At the time she was hired, Hartenstein served as a Unit Treatment Rehabilitation Director at the facility and was familiar with the treatment of mental health patients. She was the most qualified applicant because of her prior experience.

16. The final position was 012123, a Management Review Specialist in the Tallahassee district office. The position called for familiarity with "planning, information resource planning, legislative budget requests, performance of needs assessment and knowledge of health and human services."

17. John Girvin (Girvin), a white male whose age was the same as Petitioner, was ultimately selected for the job. Girvin had prior experience as a deputy secretary and assistant division director for the Department of Commerce and also served with the Historical Preservation Society. The evidence supports a finding that he was the most qualified person for the job.

18. Notwithstanding the foregoing, Petitioner pointed out that when he had previously submitted his qualifications to his

    former employer (DOR) in 1996, he received a letter from DOR indicating that DOR "felt" that he qualified for a number of positions within the agency, including a Management Review Specialist. Therefore, Petitioner contended that this affirmation of qualifications by DOR also qualified him for the same type of position with another state agency, including the Department's position 012123. Assuming this to be true, it merely means that Petitioner met the minimum qualifications for such a position; it does not mean that he was the best qualified person for the job. As noted above, a more qualified individual was selected for the position.

19. Petitioner further contended that nothing in the basic job announcement for position 10081 indicated that skills in "psychosocial" services were needed. That document, however, merely identified the minimum qualifications, and further details concerning the specific job requirements could have been obtained from the hospital's human resources office.

20. Petitioner has also contended that existing employees of an agency have an advantage over "external" candidates since they can more easily obtain direct experience in the desired area as well as information about "vital criteria" for the job. Even if this is true, it does not equate to a discriminatory practice within the meaning of the law. Moreover, the evidence here shows that the most qualified person was hired in each instance.

21. Finally, Petitioner asserts that the Department violated various Department of Management Services rules in the hiring process, such as failing to timely notify him after Wilson did not actually demote into position 60287, and ignoring the generic minimum qualifications which apply to similar positions in all agencies. The latter claim has been rejected, but even if a technical error occurred, such as the Department failing to send a second letter regarding position 60287, such action was harmless and was not taken with discriminatory animus.

22. In summary, there was no credible evidence that the Department "chang[ed] classifications and var[ied] conditions of employment" in an effort to deny Petitioner employment, or that the Department's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decisions were grounded on discriminatory animus in any respect, or that a discriminatory reason motivated the Department in its actions.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57, Florida Statutes (1999).

24. In his Petition for Relief, Petitioner has alleged that through "changing classifications and varying conditions of employment," the Department was able to deny him employment on account of his race, gender, and age. If this charge is true, it

    would arguably constitute a violation of Section 760.10(1)(a), Florida Statutes (1995), which provides in relevant part as follows:

    1. It is an unlawful employment practice for an employer:

       
       

       (a) To . . . refuse to hire any individual .

       . . because of such individual's race . . . sex, [or] age."

       
       

25. In order to make out a prima facie case of race, gender, or age discrimination under Section 760.10(1)(a), Florida Statutes (1995), Petitioner must show that he is a member of a protected class; that he was fully qualified for the job for which he applied; and that another person outside the protected class, or of a different age, with equal or lesser qualifications was hired. See, e.g., Davenport v. Village on the Green, 21

    F.A.L.R. 2351, 2355 (FCHR, 1999)(race and gender); Jones v. School Bd. of Volusia County, 21 F.A.L.R. 2366, 2367 (FCHR, 1999)(age). In making out a prima facie case, Petitioner need only show that he was minimally qualified for the position, and not that he was fully qualified. Potasek v. The Fla. State University, 18 F.A.L.R. 1952, 1953 (FCHR, 1995).

26. Initially, it is noted that there is no evidence regarding the age of the successful candidates for positions 60287 and 60288 while the Department filled position 012123 with a person the same age as Petitioner. Thus, the allegations pertaining to age discrimination as to those positions need not be considered. Next, positions 60288 and 012123 were filled by

    males, thereby negating Petitioner's claim of gender discrimination. Finally, the race of the successful applicant for positions 60287 and 60288 is unknown; thus, the claim of race discrimination for those positions will not lie.

27. Here, Petitioner has arguably met his burden of proving a prima facie case of race discrimination as to positions 10081 and 012123, age discrimination as to position 10081, and gender discrimination as to positions 60287 and 10081. This is because the record shows that Petitioner was a member of a protected class (age, race, and gender); he met the minimum qualifications for the positions; he was subject to an adverse employment decision; and a person outside the protected class was chosen for the positions.

28. In response to the foregoing showing, Respondent has articulated a legitimate, nondiscriminatory reason for its employment decision. That is to say, Petitioner was not hired because other candidates (Lewis, Morrell, Hartenstein, and Girvin) were better qualified. See, e.g., Pelli v. Stone Savannah River and Pulp and Paper, 878 F.Supp. 1559, 1565 (S.D. Ga. 1995)("promotion of an employee who is deemed more qualified than the Petitioner for the position is a legitimate, nondiscriminatory reason"). Petitioner failed to show that Respondent's proffered reasons were a pretext for discrimination. This being so, the Petition for Relief must be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief.

DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2000.

COPIES FURNISHED:

Ausbon Brown, Jr. Post Office Box 289

Daytona Beach, Florida 32636

Kevin E. Hyde, Esquire Natasha A. Garrison, Esquire Foley & Lardner

200 Laura Street Jacksonville, Florida 32202

Daniel T. Medved, Esquire Department of Children and

Family Services

210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114-3269

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida 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: 99-004040

Orders for Case No: 99-004040