STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUSBON BROWN, JR., )

)

Petitioner, )

)

vs. ) Case No. 99-4042

)

DEPARTMENT OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconferencing on March 2, 2000, in Tallahassee and 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: Gene T. Sellers, Esquire

Susan C. Felker-Little, Esquire Department of Revenue

Post Office Box 6668 Tallahassee, Florida 32314-6668

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 in September 1997, when Petitioner, Ausbon Brown, Jr., filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that Respondent, Department of Revenue, 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 almost two years later, the agency issued its Determination: No Cause. Thereafter, Petitioner filed his Petition for Relief with the agency 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 15, 1999, a final hearing was scheduled on March 2, 2000, in Daytona Beach, Florida. At the request of Respondent, the case was conducted by video teleconferencing, with the parties located in Tallahassee and Daytona Beach, Florida.

In a preliminary ruling entered on November 5, 1999, the undersigned granted Respondent's Motion to Strike and excluded all allegations which pertained to discriminatory acts occurring more than 365 days before the Charge of Discrimination was filed. Thus, all allegations except those pertaining to two positions were stricken. The undersigned also struck allegations pertaining to a request for money damages. Finally, Respondent's

Motion to Dismiss this proceeding on the ground that the remaining charges were not timely filed was denied.

At the final hearing, Petitioner testified on his own behalf. Also, he offered Petitioner’s Exhibits 1-14, which were received in evidence. Respondent presented the testimony of Loretta Alexander, Operations and Management Consultant Manager; Reeta Das, Revenue Program Administrator II; Elyse Kenney, Data Processing Manager; Ron Vandenberg, Acting Program Administrator II; Carol Randolph, Management Review Specialist Lead Worker; and Ben Revers, Acting Process Manager. Also, it offered Respondent's Exhibits 1-33; all were received except 25-28 and

30-33. Finally, the undersigned took official recognition of Chapter 60K-3, Florida Administrative Code.

The Transcript of the hearing was filed on March 27, 2000. Proposed Findings of Fact and Conclusions of Law were filed by Petitioner and Respondent on April 5 and 11, 2000, respectively, and they 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. In this case, Petitioner, Ausbon Brown, Jr. (Petitioner), who is an African-American male born on April 25, 1943, contends that Respondent, Department of Revenue (Department), unlawfully refused to hire him for two 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 almost two years 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. According to Petitioner's job applications received in evidence, from June 1965 until April 1994 Petitioner worked for the U. S. Department of Commerce, National Marine Fisheries Service, in various positions, including "survey statistician," "operations research analyst," "chief turtle headstart," "fisheries technician/biologist," and "equal employment opportunity counselor." Petitioner then retired from federal service. From July 28, 1995, until July 6, 1998, he was employed

   as a child support enforcement case analyst with the Department. His current employment is not of record.

5. When he was working with the Department, Petitioner filed a number of applications for other Department positions. Two of those applications are in issue here, and they involve positions 4231 and 4360, both Management Review Specialists located in the Department's Tallahassee office.

6. Approximately twenty-five persons, including Petitioner, applied for Position 4231 in the Department's case initiation unit. The position was advertised as an internal agency promotion, which meant that it was restricted to Department employees. According to the job announcement, preference would be given to those applicants who had experience in the child support enforcement program and who had knowledge of the FLORIDA system, the Department's mainframe computer system that keeps records of the child support data. In other words, "somebody with an overall knowledge of the program and the current system" would be given a preference in hiring.

7. Twelve persons met the minimum qualifications, including Petitioner, and each of them was interviewed (either live or by telephone) by a three-person committee made up of Department employees. In Petitioner's case, he was given a telephone interview on June 26, 1997. All applicants were asked the same questions.

8. The successful applicant, Diane Binkley (Binkley), a female younger than Petitioner but whose race is unknown, had more than ten years experience in the child support enforcement program, including more than three in a supervisory capacity, and she had been involved in the FLORIDA system since its inception. In addition, Binkley was knowledgeable of the public assistance side of the FLORIDA system. She got "rave reviews" from her supervisor and, because she had the most experience, Binkley was considered the most qualified candidate and was selected for the job.

9. As to this position, Petitioner contended that the fact that his application indicated he was retired from federal service is an indication that age played a role in the Department's employment decision. There is, however, no direct proof to support this assertion or any evidence from which to draw an inference favorable to Petitioner on this issue.

10. Position 4360 was a new position located in the unit responsible for preparing annual and quarterly tax reports for the federal government. Like position 4231, it was an internal promotion and was restricted to existing Department employees. The Department was looking for an individual with "leadership ability" who would take a lead position in a team in developing and testing programming criteria that would match up with the federal reports, who could interact with other higher-paid agency employees, and who could handle "very stressful" situations.

11. The Department first reviewed the applications and determined which candidates satisfied the minimum qualifications. From that group, a determination was then made as to whether the applicant satisfied certain "interview criteria," including "experience in data collection and analysis, fact finding research, and statistical reporting"; experience "in the FLORIDA system, CSE reporting, Lotus 123, Microsoft Word, or Wordperfect"; and "FLORIDA testing experience." Finally, a selection committee composed of three Department employees (Alexander, Kenny, and Das) was formed to interview the three final candidates, all male, one of whom was Petitioner.

12. All three candidates were given a live interview in Tallahassee in October or November 1996. Although the committee concluded that Petitioner was a "very qualified applicant," and might have been hired had more than one position been available, the successful candidate, Stanley Eatman (Eatman), a black male younger than Petitioner, was found to be "a little stronger in certain areas" since he had "specifically assisted with [the] testing," was "very people oriented," and was "able to lead a team without antagonizing anyone." The evidence supports a finding that the most qualified person was hired.

13. Even so, Petitioner contended that one of the committee members for position 4360 (Alexander) unduly influenced the decision of the other two members and single-handedly "laid the groundwork for [Eatman] to be selected." Petitioner also

    contended that the committee ignored his total life experience while choosing a younger candidate. These contentions are not supported by the evidence. Finally, he asserted that one member (Kenny) remarked to the others during the interview that he (Petitioner) had made a "sexist" statement while responding to a question. All three members denied that this occurred. A contention by Petitioner that the three committee members "committed perjury" when they denied hearing or speaking this statement has also been rejected.

14. Petitioner further challenged the committee's decision that acceptance testing was more important than the reporting aspect when considering the experience of the candidates. This decision, however, was within the prerogative of the hiring agency. Moreover, because of space restrictions, an agency cannot identify every criteria for the position in its job announcement; thus, the failure to list this item is not an indicator of discrimination. Petitioner also complained that he was not given a copy of the interview questions prior to the interview. There is, however, no requirement that an employer reveal this information to an applicant before an interview.

15. Finally, Petitioner suggested that all of the Department witnesses were "coached" and thus their answers are suspect. As to this contention, the undersigned has assessed the credibility of each of the witnesses and has assigned that testimony the appropriate weight.

16. While the Petition for Relief alleges that the Department "classified positions" and varied "conditions of employment" in an effort not to hire Petitioner, there was no credible evidence to support this claim, or that the Department's actions were a pretext for discrimination. Indeed, there is no evidence from which to even draw an inference that the employment decisions were grounded on discriminatory animus in any respect, or that the Department was motivated by discriminatory concerns when it made the employment decisions.

    CONCLUSIONS OF LAW

    
    

17. 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.

18. 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 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."

       
       

19. To make out a prima facie case of race, gender, or age discrimination under Section 760.10(1)(a), Petitioner must show that he is a member of a protected class (race, age, or sex);

    that he was qualified for the job for which he applied; that he was rejected; and that another person outside the protected class, or of a different age, with equal or lesser qualifications, was hired. See, e.g., Jones v. School Bd. of Volusia County, 21 F.A.L.R. 2366, 2367 (FCHR, 1999)(age); and Davenport v. Village on the Green, 21 F.A.L.R. 2351, 2355 (FCHR, 1999)(gender and race). In meeting this evidentiary burden, Petitioner need only prove that he met the minimum qualifications for the positions, and not that he was fully qualified. Potasek v. The Fla. State University, 18 F.A.L.R. 1952, 1953 (FCHR, 1995).

20. Because a black male was selected for position 4360, the claim of race and gender discrimination as to that position must necessarily fail. Further, the race of the successful candidate for position 4231 is not known. Thus, the allegation that the Department rejected Petitioner's application for that job on account of his race must also be rejected.

21. Petitioner has arguably made out a prima facie case for the remaining allegations. That is to say, Petitioner was a member of a protected class by virtue of his gender (male) and age; he met the minimum qualifications for the jobs as stated in the vacancy announcements; he was rejected; and a person outside the protected class was later chosen.

22. In response to this showing, the Department articulated a legitimate, non-discriminatory reason for not considering

    Petitioner. In each case, the Department selected someone who was better qualified. In the absence of any credible evidence that the Department's actions were a pretext for discrimination, or that the Department acted with discriminatory intent when it hired those individuals, the Petition for Relief must fail.

23. Finally, on April 11, 2000, Respondent filed an Objection to, and Motion to Strike, Petitioner's Post-Hearing "Rebuttal" Material and Exhibits. By the motion, Respondent seeks to strike certain "post-hearing rebuttal material" and Exhibits 4 and 5 attached to Petitioner's Proposed Recommended Order on the ground they constitute new material not a part of the record. Having considered the motion, the motion is granted, and those matters not a part of the record as of March 2, 2000, when the record was closed, have been disregarded.

RECOMMENDATION

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

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

DONE AND ENTERED this 20th 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 20th day of April, 2000.

COPIES FURNISHED:

Ausbon Brown, Jr. Post Office Box 10946

Daytona Beach, Florida 32120-0946

Gene T. Sellers, Esquire

Susan C. Felker-Little, Esquire Department of Revenue

Post Office Box 6668 Tallahassee, Florida 32314-0946

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 render a final order in this case.

Docket for Case No: 99-004042

Orders for Case No: 99-004042