STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUSBON BROWN, JR., )

)

Petitioner, )

)

v. ) Case No. 99-4331

) FLORIDA FISH AND WILDLIFE ) CONSERVATION COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted by video teleconference in this case on March 15, 2000, and by telephone conference on

July 7, 2000, before the Division of Administrative Hearings, by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Ausbon Brown, Jr., pro se

Post Office Box 10946

Daytona Beach, Florida 32120-0946

For Respondent: Preston T. Robertson, Esquire

Sharman H. Green, Esquire Florida Fish and Wildlife Conservation Commission

Bryant Building

620 South Meridan Street Tallahassee, Florida 32399-1600

STATEMENT OF THE ISSUE

The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as amended, by committing unlawful employment practices against Petitioner.

PRELIMINARY STATEMENT

Petitioner Ausbon Brown, Jr. (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) on September 2, 1997. The charge alleged that the Florida Game and Fresh Water Fish Commission (GFC) committed unlawful employment acts by failing to hire Petitioner for several employment positions. Specifically, the charge alleged that GFC had discriminated against Petitioner based on his race, age, and sex.

On August 18, 1999, the FCHR issued a Determination: No Cause in this case. Petitioner filed a Petition for Relief with FCHR on September 10, 1999. FCHR transmitted the Petition for Relief to the Division of Administrative Hearings (DOAH) on October 13, 1999.

On October 26, 1999, Petitioner and Respondent Florida Fish and Wildlife Conservation Commission (Respondent) filed a Joint Response to Initial Order. The Joint Response to Initial Order states, among other things, that Respondent was successor to GFC per the recent amendment of Article IV, Section 9, Florida Constitution.

On October 28, 1999, Administrative Law Judge Donald R. Alexander issued a Notice of Hearing. The notice scheduled the case for formal hearing on January 13, 2000.

On December 3, 1999, Petitioner filed a Motion to Compel. Respondent filed a Motion for Protective Order on December 6, 1999. Petitioner filed a Response to Respondent's Motion for Protective Order and a second Motion to Compel on December 9, 1999. Judge Alexander issued an Order on Motions on December 14, 1999. Said Order denied Petitioner's Motion to Compel and granted Respondent's Motion for Protective Order.

On December 13, 1999, Respondent filed a Motion to Strike.

Judge Alexander entered an order granting this motion on December 20, 1999.

On December 14, 1999, Respondent filed a Motion to Dismiss.

Petitioner filed a response in opposition to the motion on December 27, 1999. Judge Alexander entered an order denying the Motion to Dismiss on December 27, 1999.

On December 15, 1999, Respondent filed a Notice of Substitution of Party. Said notice advised that, pursuant to Article IV, Section 9, Florida Constitution, the Florida Game and Fresh Water Fish Commission was incorporated into the Florida Wildlife and Fish Conservation Commission, effective July 1, 1999. The notice states that Respondent should be referenced as the latter.

On December 15, 1999, Petitioner filed an Amended Petition for Relief.

On December 27, 1999, Petitioner filed a Motion for Summary Judgment (Summary Final Order). Respondent filed a response in opposition to this motion on January 4, 2000. Judge Alexander denied the Motion for Summary Judgment in an Order dated January 5, 2000.

Respondent filed an unopposed Motion for Hearing by Video Teleconference on January 3, 2000. On January 7, 2000, Respondent filed an unopposed Motion for Continuance. On January 14, 2000, Judge Alexander issued an Order granting these motions and rescheduling the case to be heard by video teleconference on March 15, 2000.

On January 19, 2000, Respondent filed a Notice of Service of Answers to Interrogatories. The notice states that Respondent served Petitioner with answers to Petitioner's Amended Petition for Discovery/Interrogatories on January 14, 2000.

On January 26, 2000, Judge Alexander entered an Order regarding the transfer of one of Petitioner's claims in DOAH No. 99-4037. The claim related to Petitioner's unsuccessful application with the Department of Environmental Protection (DEP) for employment position No. 2503. That position, along with the personnel involved in making the employment decision,

was transferred to Respondent by the Legislature in 1999. Judge Alexander's Order gave Respondent an opportunity to object to the transfer. On February 7, 2000, Respondent filed a Response to Order, indicating that it had no objection to the transfer of the claim with certain reservations.

On January 27, 2000, Judge Alexander issued a Notice of Hearing by Video Teleconference, scheduling the hearing for March 15, 2000. The next day, Judge Alexander entered an Order directing the parties to file copies of proposed exhibits no later than March 10, 2000.

On February 15, 2000, Judge Alexander entered an Order stating that an allegation in DOAH Case No. 99-4037 pertaining to employment position No. 2503 would be considered at the hearing in this case on March 15, 2000.

On March 2, 2000, Respondent filed 18 proposed exhibits.

Petitioner filed 10 proposed exhibits on March 6, 2000.

Later in the day, Petitioner filed another exhibit.

On March 13, 2000, the Division of Administrative Hearings transferred this case to the undersigned. That same day, Respondent filed its Motion to File Exhibit 19.

As a preliminary matter during the formal hearing on March 15, 2000, Petitioner made ore tenus motions to compel and/or for sanctions against Respondent. In the first motion, Petitioner sought more complete answers to discovery questions set forth in

Petitioner's Amended Petition for Discovery. In the second motion, Petitioner sought answers to discovery questions related to employment position No. 2503.

After hearing oral argument, the undersigned determined that Petitioner may have been entitled to more complete answers to question Nos. 8, 9, 10, and 11 in his Amended Petition for Discovery if he had filed a written motion to compel in a more timely manner. The undersigned also determined that Petitioner had not sought to compel answers to his discovery request about position No. 2503 sufficiently in advance of the hearing.

Accordingly, both of Petitioner's ore tenus motions were denied as untimely.

Respondent renewed its Motion to Dismiss as a preliminary matter. This motion was denied.

Respondent also requested a ruling on its Motion to File Exhibit 19. Said exhibit contains information from FCHR as to Petitioner's complaint about position No. 2503. This motion was granted over Petitioner's objection. The undersigned advised Petitioner that he would be given an opportunity to file post- hearing exhibits and/or sworn testimony and, if necessary, to file a motion to reopen the record, to present evidence in rebuttal to the documents contained in Respondent's Exhibit 19.

During the hearing, Petitioner testified on his own behalf and offered the following exhibits, which were marked for

identification and accepted into evidence: P1-P4, P6-P10, and P13. Respondent presented the testimony of five witnesses and offered exhibits R1-R5 and R7-R19, which were accepted into evidence.

On March 20, 2000, the undersigned issued a Post-Hearing Order. Said order gave Petitioner an opportunity to file a written response and/or additional exhibits in rebuttal to Respondent's Exhibit 19 on or before March 27, 2000. The order also gave Respondent an opportunity to file a Motion to Reopen the Record on or before March 27, 2000, for the limited purpose of presenting testimony relating to Respondent's Exhibit 19.

On March 30, 2000, Petitioner filed the following: Petitioner's Rebuttal to Respondent's Exhibit #19, Motion In Limine, and Motion to Reopen the Record. Respondent filed a response in opposition to these pleadings that same day.

On April 5, 2000, the undersigned issued an Order relative to further administrative proceedings. This Order denied Petitioner's Motion in Limine, granted Petitioner's Motion to Reopen the Record, required the parties to serve any additional discovery and/or requests for public information on or before April 19, 2000, and required the parties to file a status report and any motion to compel on or before May 17, 2000.

On April 7, 2000, the court reporter filed a Transcript of the March 15, 2000, proceeding.

On April 18, 2000, Petitioner filed a Petition for Information directed to Respondent. Petitioner filed a Petition for Discovery directed to Respondent on April 19, 2000.

Respondent filed a response to these pleadings on April 26, 2000. The response states, in part, that Respondent did not possess records related to position No. 2503 other than the records previously supplied to Petitioner.

On May 12, 2000, Petitioner filed copies of requests that DEP and Respondent furnish him with public documents relative to position No. 2503.

On May 12, 2000, the parties filed status reports.

Petitioner's status report stated that DEP had not responded to requests for public information. Respondent's status report stated that it had previously furnished Petitioner with all requested information.

On May 15, 2000, Respondent filed a Response to Petitioner's Request for Public Documents Re: Position #2503. Said response indicates that Respondent had previously furnished Petitioner with all requested documents in Respondent's possession.

On or about May 17, 2000, the undersigned held a telephone conference with the parties. During the conference the parties agreed that Petitioner could present testimony and exhibits

relative to position No. 2503 in a telephone hearing on July 7, 2000.

On May 19, 2000, Petitioner filed DEP's response to Petitioner's request for documents relative to position No. 2503. Said response indicated that DEP no longer maintained any original documents with regard to that position.

On May 22, 2000, the undersigned issued a Notice of Telephone Hearing and Order of Instructions. The notice scheduled a telephone hearing for July 7, 2000.

On May 24, 2000, Petitioner filed a Request for Public Documents Re: Position # 2503. This pleading sought specific documents from Respondent, giving the item numbers, and requesting disposition certificates for any destroyed records.

On May 25, 2000, Respondent filed an Amended Response to Petitioner's Requests for Public Documents Re: Position #2503. Said response indicated that Respondent had located documents which might be responsive to Petitioner's requests. The documents had been in possession of the Florida Marine Research Institute (FMRI), an organization operating as a component of DEP prior to the merger of the GFC, the Florida Marine Fisheries Commission, and FMRI to form Respondent on July 1, 1999. The documents had been stored and scheduled for destruction pursuant to applicable law. Respondent attached copies of the referenced documents to its amended response.

On May 26, 2000, Petitioner filed a Request for Public Documents Re: Position # 2503. This request was essentially the same as the request filed by Petitioner on May 24, 2000.

On June 9, 2000, Petitioner filed a Motion for Sanctions against Respondent. This motion sought sanctions for Respondent's delay in furnishing Petitioner with copies of requested documents. Respondent filed a response in opposition to the Motion for Sanctions on June 13, 2000.

On June 13, 2000, Petitioner filed a Request for Public Documents Re: Position #2503. This request sought production of documents previously requested and included a request for additional documents by item number.

On June 19, 2000, the parties filed unilateral prehearing stipulations.

On June 20, 2000, the undersigned issued an Order denying Petitioner's Motion for Sanctions.

On June 27, 2000, Petitioner filed a pleading entitled "2nd Petition for Discovery." This pleading sought additional documents relative to position No. 2503 and information regarding the transfer of records from FMRI to Respondent on or about July 1, 1999.

On June 27, 2000, Petitioner filed eleven proposed exhibits for the July 7, 2000, telephone hearing.

On June 28, 2000 and June 30, 2000, Petitioner filed an explanation of his failure to furnish Respondent with copies of proposed exhibits for the July 7, 2000, telephone hearing.

On July 3, 2000, Respondent filed a Response to 2nd Petition for Discovery.

On July 5, 2000, Petitioner filed a Motion for Continuance of the July 7, 2000, telephone hearing. The undersigned denied this motion by order dated July 6, 2000.

On July 6, 2000, Respondent filed a Notice of Filing Documents. Copies of responses to some of Petitioner's July 13, 2000, request for documents were attached to the notice.

On July 7, 2000, Petitioner filed a pleading entitled "Additional Exhibits for July 7, 2000, Telephonic Hearing." According to the pleading, Petitioner had attached three proposed exhibits. However, only the first page of one exhibit was attached to the pleading.

During the telephone hearing on July 7, 2000, Petitioner testified on his own behalf and offered Petitioner's Exhibit Nos. 14-17, which were accepted into evidence. Respondent presented no testimony and offered no exhibits.

On July 14, 2000, Petitioner filed a request for a copy of the July 7, 2000, Transcript.

On July 25, 2000, the court reporter filed the Transcript of the July 7, 2000, telephone hearing.

On July 31, 2000, Petitioner filed a Petition for Extension of Time to Submit Proposed Order. At that time, proposed recommended orders were due to be filed on August 3, 2000. The undersigned granted this request by order dated August 1, 2000. The parties were directed to file their proposed orders on August 14, 2000.

Respondent filed its Proposed Recommended Order on August 14, 2000. Petitioner filed his Proposed Recommended Order on

August 16, 2000.

FINDINGS OF FACT

1. Petitioner is an African-American male who was born on April 25, 1943. He 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.

2. According to his job applications, Petitioner worked for the U.S. Department of Commerce, National Marine Fisheries Service, from June 1965 until April 1994. He worked in various positions, including "survey statistician," "operations research analyst," "fishery research biologist as chief of turtle headstart," "fishery technician/biologist," and "Equal Employment Opportunity Counselor."

3. From July 28, 1995, until July 6, 1998, Petitioner was employed as a child support enforcement case analyst with the Florida Department of Revenue. Petitioner is currently employed at Daytona Beach Community College in an unknown position.

4. Petitioner filed his Charge of Discrimination with FCHR on September 2, 1997, indicating that the most recent or continuing act of alleged race, age, or sex discrimination occurred on August 11, 1997. Alleged acts of discrimination that occurred more than 365 days prior to the filing of the Charge of Discrimination cannot be considered here. See Section 760.11(1), Florida Statutes.

5. Petitioner received letters from Respondent prior to September 2, 1996, informing him that he would not be hired for the following positions: (a) position No. 543 (Job Opportunity Announcement (JOA) #005-6) position filled by Laura Richards with hire date effective March 1, 1996, Petitioner's rejection letter dated April 5, 1996; (b) position Nos. 213 and 956, positions filled by Robert Guerra and Jacklyn Gilmore, respectively, both with effective hire dates of March 29, 1996, Petitioner's rejection letter dated April 3, 1996; and (c) position No. 1099, position filled by Lorraine Heisler with hire date effective May 10, 1996, Petitioner's rejection letter dated April 8, 1996. Therefore, employment decisions regarding these positions are not at issue here.

6. Petitioner applied for and was rejected for the following position numbers after he filed his Charge of Discrimination with FCHR: (a) position Nos. 1161 and 1162, positions filled, Petitioner's rejection letter dated February 16, 1999; (b) position No. 1160, position filled, Petitioner's rejection letter dated March 15, 1999; (c) position No. 918, position filled, Petitioner's rejection letter dated June 4, 1998; (d) position No. 966, position filled, Petitioner's rejection letter dated August 27, 1998; and (e) position No. 859, Petitioner's application faxed to Respondent on June 29, 1998, Petitioner's rejection letter not in record. There is no evidence that FCHR's investigation of Petitioner's Charge of Discrimination and the resulting Determination of No Cause included the employment decisions associated with these positions. Therefore, they are not at issue here.

7. There is no evidence that Petitioner ever applied for position No. 671. Accordingly, that position number is not at issue here.

8. The employment positions at issue here are as follows:

   
   

   (a) position No. 543 (JOA #047-7, Issue Date July 16, 1997), no evidence regarding employment decision, no rejection letter in record; (b) position No. 1071, position filled by Dwight Myers with effective hire date of July 11, 1997, Petitioner's rejection letter dated June 30, 1997; (c) position No. 869,

   position filled by Forrest Marchinton with effective hire date of March 3, 1997, Petitioner's rejection letter dated February 13, 1997; (d) position No. 2503, position filled by Gil McRae with hire date of March 24, 1997, Petitioner's rejection letter not dated; and (e) position No. 878, Petitioner submitted a resume but no application for this position; Petitioner's alleged rejection letter dated August 11, 1997, is not in record.

9. When Respondent desires to fill a vacant position, it requests the Department of Management Services (DMS) to publish a Vacancy Announcement, which provides a short summary of information regarding that position. The Vacancy Announcement contains the "bare essentials" about a job and includes a brief description of the job duties, the minimum qualifications necessary for the position, and Respondent's contact person.

10. When Respondent desires to fill a vacant position, it publishes a JOA, listing, among other things, the minimum qualifications and a description of job duties for the position. The JOA instructs applicants to submit a separate application for each position sought and to include the appropriate class title and position number. The JOA directs applicants to submit a completed State of Florida Application form to a named contact person.

11. The State of Florida Employment Application directs applicants to "[l]ist the knowledge, skills, and abilities that [the applicant] will bring to the job." The application advises applicants to refer to the JOA or listed contact person to determine those specific requirements.

12. For each established career service position, DMS and the applicable state agency create a Career Service Position Description (CSPD), which lists in great detail the job's duties and responsibilities. DMS and the agency maintain copies of the CSPD.

13. When Respondent intends to fill a vacant position, it develops a Selection Criteria Form. This form sets forth the essential and preferred selection criteria based on the required knowledge, abilities, and skills for the position. Respondent uses the Selection Criteria Form to screen job applications, rank the applicants, and determine which applicants Respondent will interview.

14. At hearing, Respondent's staff testified that it is required to interview the selected applicant. This testimony does not mean that Respondent may select an applicant before interviewing him or her. Likewise, this testimony does not mean that Respondent must select an interviewed applicant.

15. Respondent may interview one or more applicants.

    
    

    After Respondent completes the interview process, it may select

    one of the interviewed applicants to fill the vacant position. Pursuant to DMS rules, Respondent cannot select an applicant that has not been interviewed.

16. After Respondent selects the applicant most qualified for the vacant position, it prepares a Recruitment Report. This report identifies demographic information regarding all persons who filed an application, the name of the successful candidate, and the Respondent's reasons for determining that non-selected candidates are less qualified in comparison to the selection criteria.

    Position No. 543

    
    

17. Respondent initially advertised position No. 543, Biological Administrator I, in JOA #005-6. Petitioner applied for the position, but Laura Richards, a former FMRI employee, was better qualified for the job. Ms. Richards' effective hire date was March 1, 1996. Petitioner subsequently received Respondent's April 5, 1996, letter advising him that he was not selected for the position. All of this occurred more than 365 days prior to the date that Petitioner filed his Charge of Discrimination and is not at issue here.

18. Ms. Richards vacated position No. 543 sometime after Respondent offered her the position. In the meantime, Petitioner had a conversation with Toby Harris, Respondent's Chief of Personnel in 1997. The conversation focused on the

    selection process for Respondent's established positions. In the conversation, Petitioner expressed his concern regarding his failure to be interviewed for positions when he had a Doctorate in a biological science area and selected candidates only had a Master of Science (M.S.) degree. Mr. Harris did not tell Petitioner that Respondent was targeting candidates with M.S. degrees. Instead, Mr. Harris indicated that he would ask Respondent's Division of Wildlife to interview Petitioner to determine whether he had relevant background qualifications not reflected on an application. Mr. Harris also agreed to add Petitioner's name to the mailing list for JOAs.

19. In a letter dated August 8, 1997, James R. Schuette, one of Respondent's regional wildlife biologists, sent Petitioner two JOAs. One of the JOAs was for position No. 671, for which Petitioner never applied. The other JOA (#047-7, issued July 16, 1997) was for position No. 543.

20. Petitioner applied for position No. 543 (JOA #047-7).

    
    

    Respondent offered to interview Petitioner and set up a date and time for the interview. However, Petitioner was unable to attend the interview because of transportation problems.

    Petitioner eventually advised Respondent that he was withdrawing his application for position No. 543. Consequently, there is no letter advising Petitioner that he was not selected for position No. 543. Moreover, the record contains no evidence as to

    whether Respondent ever filled position No. 543 or continued to seek applicants for that position. There is insufficient evidence on which to base a finding that Respondent discriminated against Petitioner in making an employment decision relative to position No. 543.

    Position No. 1071

    
    

21. Petitioner applied for position No. 1071, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following:

    A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences. Degree(s) in wildlife management or ecology are preferred.

    
    

22. The duties for position No. 1071 are set forth as follows in the JOA:

    Develops and implements management plans for Lake Placid Wildlife Environmental Area.

    Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities.

    Applies various wildlife habitat practices.

    
    

23. Petitioner possessed the minimum qualifications for position No. 1071. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess

    experience in wildlife management that was required for this position. Wildlife is defined as land-based mammals and birds. Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes.

24. When hiring for the position of Biological Scientist III, Respondent focuses on an applicant's knowledge, skills, and abilities in performing wildlife population surveys and inventories, working hunter check stations, collecting biological samples from wildlife and upland mammals and game birds, and interacting with the public in exchanging information pertinent to wildlife. Respondent looks for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science.

25. The CSPD for position No. 1071, states as follows in relevant part:

    1. Area Responsibilities:

       Duties and responsibilities include the direct involvement in the development and implementation of management programs for the KICCO Wildlife Management Area. . . .

       1. Management Planning:

          Duties and responsibilities include coordination of the development and periodic revision of long-range, comprehensive management plans for the KICCO Wildlife Management Area. . . .

       2. Program Development:

       Duties include supervision, coordination and direct involvement in projects to accomplish management of wildlife, timber, range and water resources. The job includes the following responsibilities: Collection of

       biological data to evaluate wildlife population numbers and fluctuation and land responses to habitat management.

       Accomplishment of work in Commission-planned activities such as controlled burning, roller chopping, wildlife food-plot planting, public hunt management, etc. . . .

       Providing wildlife related recreational opportunities including consumptive and nonconsumptive [sic] uses where appropriate.

       . . . Supervision of one Biological Scientist II and occasional assistance with program development on the Arbuckle and IMC Wildlife Management Areas.

       
       

       * * *

       
       

    2. Technical Assistance:

       Duties and responsibilities include providing technical guidance to private citizens or other governmental agencies in wildlife or associated land management programs.

    3. Information - Education:

       Duties and responsibilities include developing programs to disseminate information on wildlife management, environmental awareness, and related subjects. . . .

    4. Endanger [sic] and Exotic Species: Duties and responsibilities include identification and protection of endangered species and habitats. Documents and recommends eradication programs for exotic plant species that endanger native habitat.

       
       

26. Petitioner was not interviewed for position No. 1071.

    
    

    His application did not indicate that he had the required training and experience in wildlife management.

27. There were 41 applicants for position No. 1071, including 26 males and 15 females. Seven of the applicants were known to be minorities, including two black males. Respondent

    interviewed four males and one female. One of the interviewed males was known to be of Asian or Pacific Island descent.

28. The individual that Respondent selected for position No. 1071 was Dwight Myers, a white male, age unknown. Mr. Myers' effective hire date was July 11, 1997. Mr. Myers' education and experience exceeded the minimum qualifications for the job. Mr. Myers was more qualified for the position than Petitioner because of his training and experience in wildlife management.

29. Petitioner received a non-selection letter dated June 30, 1997, for position No. 1071. Petitioner was not hired because he lacked the preferred experience and education in wildlife management. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 1071.

    Position No. 869

    
    

30. Petitioner applied for position No. 869, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following:

    A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences.

    Degree(s) in wildlife management or ecology are preferred.

    
    

31. The duties for position No. 869 are set forth as follows in the JOA:

    Develops and implements management plans for the Osceola Wildlife Environmental Area.

    Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities.

    Applies various wildlife habitat practices.

    
    

32. Petitioner possessed the minimum qualifications for position No. 869. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess experience in wildlife management that was required for this position. As stated above, Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes, and not with land-based mammals and birds.

33. When hiring for position No. 869, Petitioner focused on the same knowledge, skills, and abilities as when hiring for position No. 1071. Respondent was looking for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science.

34. The CSPD for position No. 869 states as follows in relevant part:

    WILDLIFE MANAGEMENT AREA RESPONSIBILITIES

    1. PUBLIC HUNTING AND RECREATION

       Plan, implements and directs activities required for managing all public hunts on the Osceola, Bienville-PC Phosphate, Lake Butler an Cypress Creek WMAs. Hires, trains and supervises eight to ten seasonal employees; moves check stations to operational locations; collects biological data at check stations; disseminates information about wildlife to the public . .

    2. POPULATION MONITORING, MANAGEMENT AND BIOLOGICAL SAMPLING

       1. Database Management - Maintains detailed databases and up-to-date summary tables of all species monitored and all wildlife management activities on areas. Conducts sophisticated data analyses and develops Annual Management Reports.

       2. Wildlife Population Monitoring - Develops, administers and conducts surveys for monitoring and documenting population levels and status of selected game, migratory, threatened and endangered, and selected nongame [sic] species. Conducts annual population surveys for white-tailed deer, bobwhite quail and bobcats.

       3. Wildlife Population Management - Uses results of the population monitoring and analyses to develop options and recommendations to manage the population of species monitored. Actions could take the form of either regulatory or habitat management.

       4. Biological Sampling - Plans, directs and participates in the collection of biological samples for both live and hunter-harvested animals. Analyses those samples and provides reports summarizing the findings and conclusions. Specialized knowledge of collection procedures is required.

       5. Research - Coordinates wildlife research projects that may be conducted on the areas. This includes the live capture of wild animals and collection and maintenance of accurate records. . . . Analyzes large data bases to determine correlations and

       relationships with environmental factors and management actions.

    3. FACILITIES Maintenance and Habitat Management

       
       

       * * *

       
       

       1. Technical Assistance - Provides technical assistance to the US Forest Service regarding wildlife management including written comments on actions that will affect the quality of the habitat.

       2. Habitat Manipulation and Enhancement - Assists the US Forest Service with their habitat manipulation projects on Osceola WMA when time permits.

       
       

35. Petitioner was not interviewed for position No. 869.

    
    

    His application did not indicate that he had any wildlife training or experience.

36. There were 99 applicants for position No. 869, including 77 males and 22 females. Fourteen of the applicants were known to be minorities, including three black males and one black female. Respondent interviewed one white male and one male of Indian descent.

37. The individual that Respondent selected for position No. 869 was Forrest Marchinton, a white male, age unknown. Mr. Marchinton's effective hire date was March 3, 1997. There is no specific evidence regarding Mr. Marchinton's education and experience for the job. However, there is evidence that all persons selected for wildlife biologist positions had education and experience in wildlife/environmental science.

38. Petitioner received a non-selection letter dated February 13, 1997, for position No. 869. Petitioner lacked the preferred experience and education in wildlife management or ecology for the job. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 869.

    Position No. 878

    
    

39. Petitioner did not file a completed application for position No. 878, Biological Scientist IV. He only filed a resume. The application deadline for JOA #029-7 was July 7, 1997. Petitioner testified that he received a non-selection letter from Respondent on August 11, 1997. That letter is not in evidence.

40. The JOA for position No. 878 states that the minimum qualifications include the following:

    A bachelor's degree with a major in one of the biological sciences and three years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and two year's of professional biological experience as described above; or a doctorate in one of the biological sciences. Prefer: Experience in geographic information systems, especially ARC/INFO, ARC VIEW, ERDAS IMAGE, and UNIX.

    
    

41. The duties for position No. 878 are set forth as follows in the JOA:

    Obtains information, such as known occurrences of rare species of fish and wildlife, and ancillary data such as political boundaries, public land boundaries, soils, land cover, roads, hydrology, land use, etc., from outside sources and import/convert the data for use in the GFC geographic information system (GIS). Reviews scientific literature to obtain information on species requirements. Serves as the systems administrator for the GIS networked computer system. Provides technical assistance to Commission biologists, other agencies, and the public in the form of digital data and/or hard copy maps of GIS data layers.

    
    

42. The CSPD for position No. 878 states as follows:

    
    

    This is a professional position responsible for investigating and analyzing fish and wildlife population dynamics and ecology as they relate to existing and proposed restoration and management activities in the Lake Okeechobee-Everglades-Florida Bay system.

    
    

    Serves on interagency committees, as assigned, to ensure that fish and wildlife issues are adequately addressed during restoration and management efforts.

    Independently seeks out background information and makes contacts with experts in various related fields in order to address these issues competently. Conducts field inspections, as necessary, to document habitat condition and existing fish and wildlife resources. Drafts agency comments and policy for supervisory review. Keeps supervisor up to date on progress of projects and committees.

    
    

    Analyzes effects of past, current, and proposed restoration and management programs on the population dynamics and ecology of freshwater fish and wildlife species.

    Conducts field inspections to document

    habitat conditions and existing fish and wildlife resources of affected communities.

    
    

    Designs and conducts limited scientific monitoring and research projects on aspects of Everglades habitat restoration and management alternatives, and the response of fish and wildlife communities to habitat management actions. Prepares project reports and manuscripts for scientific publication and public presentation.

    
    

    Reviews development proposals that would affect the restoration of the Everglades system. This includes conducting field inspections to document habitat conditions and existing fish and wildlife resources of affected communities, and drafting agency comments and policy for supervisory review.

    
    

43. Petitioner possessed the minimum qualifications for position No. 878, as set forth in the JOA. However, there is no persuasive evidence that Petitioner had the required experience in geographic information systems to perform the job. Likewise, Petitioner clearly did not have the training and experience to fulfill the specific responsibilities and duties of the job as set forth in the CSPD as they relate to freshwater fish and wildlife.

44. Petitioner presented no evidence as whether Respondent ever filled position No. 878 or continued to seek applications for the job after sending Petitioner a rejection letter. Even if Respondent made such a selection, Petitioner presented no evidence as the race, age, or gender of the selected individual. There is no evidence that Respondent discriminated against

    Petitioner in making an employment decision in regards to

    
    

    position No. 878.

    
    

    Position No. 2503

    
    

45. Position No. 2503, Research Scientist, was advertised by DEP for FMRI in JOA #97-102 on January 6, 1997 with an application deadline of January 30, 1997. The JOA states as follows in relevant part:

    MINIMUM QUALIFICATIONS: A bachelor's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and five years of professional experience in one of the physical or natural sciences or mathematics; or a master's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and four years of professional experience as described above; or a doctorate from an accredited college or university with a major course of study in one of the physical or natural sciences or natural sciences or mathematics and two years of professional experience as described above.

    
    

    SPECIAL REQUIREMENTS: Prefer working knowledge of age-structured fisheries models, familiarity with SAS, dexterity with PCs, and knowledge of life history and ecology of marine fish species.

    
    

    * * *

    
    

    BRIEF DESCRIPTION OF JOB DUTIES: Develop

    single and multi-species assessments of Florida's East Coast fisheries integrating research on life history, fishery monitoring, ecological and habit surveys and human behavior. Develop mathematical techniques to accomplish the above duties.

    Prepares reports and manuscripts for resource managers. Participates in preparation of management plans.

    
    

    REQUIRED ENTRY-LEVEL KNOWLEDGE, SKILL(S), &

    ABILITIES: Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to: process and analyze data; produce technical reports and manuscripts; develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software.

    
    

46. The CSPD for position No. 2503 states as follows:

    
    

    Independently integrate data from directed research studies on the life history or population dynamics of marine fishes, fishery monitoring programs, ecological and habitat surveys and human behavior into single and multi-species assessments of Florida's East Coast fisheries issues.

    Monitor the status of selected marine fisheries and analyze how well Florida's management goals are being met.

    Independently design and test new mathematical techniques to accomplish the above duties. Keep current on relevant literature. Attend courses and workshops pertaining to mathematical analyses of fisheries data.

    
    

    Assist with the coordination and implementation of all fisheries research and monitoring programs. Assist with the design and testing of sampling techniques for fisheries programs.

    
    

    Prepare reports and peer-reviewed manuscripts on findings from the above analyses. Prepare stock assessments and special reports for Florida's marine resource managers. Review and evaluate

    reports, in the preparation of management plans for federal fisheries contiguous to Florida.

    
    

    Advise and assist other departmental, governmental, institutional, or private agencies in matters related to the above research. Participate in the public outreach efforts as appropriate. Assist in other Institute activities as requested.

    
    

    Knowledge, Skill(s), and Ability(ies): List any entry level knowledge, skill(s) or ability(ies) relating to this position including utilization of equipment. KSAs identified in this section are considered essential function(s).

    
    

    Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to process and analyze data; produce technical reports and manuscripts; and develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software.

    
    

47. DEP's Selection Criteria Form for position No. 2503 lists the following as essential knowledge, abilities, and skills:

    Knowledge of: population assessment techniques; simulation modeling; and statistics:

    
    

    Ability to: communicate effectively in writing and verbally; process, analyze, produce technical reports and manuscripts; develop presentation from scientific data; plan and coordinate research; and design and test sampling methods.

    Skill in the use of: a programming language; modeling software; and word processing and spreadsheet software.

    
    

48. DEP's Selection Criteria Form for position No. 2503 lists the following as preferred essential knowledge and skills:

    Knowledge of: age-structured fisheries models

    
    

    Skill in the use of: personal computers

    
    

49. DEP had 51 applicants for this position. The agency interviewed six of the applicants. Five of the interviewed candidates were white. One candidate was of Asian descent. Five of the interviewed candidates were male. One was female.

    Two of the interviewed candidates were over the age of 40. Four of the candidates were DEP employees.

50. Petitioner applied for this position but did not receive an invitation for an interview. DEP sent him an undated non-selection letter, which states that the position had been offered to an applicant whose overall background most closely fit the knowledge, skills, and abilities required for the position.

51. Petitioner met the minimum qualifications set forth in the JOA for position No. 2503. Persuasive evidence indicates that he did not have the necessary training and experience to perform the specific assessment modeling techniques in order to perform the job. A white male and a white female, who were

    already employed by FMRI, were not interviewed for the same reason.

52. DEP selected Gil McRae, an FMRI employee, for position No. 2503 with an effective hire date of March 24, 1997. Mr. McRae was a white male under the age of 40. He had a M.S. in Fisheries Statistics and more than enough professional experience to meet the minimum qualifications for the job. He had been an Associate Research Scientist with DEP for fifteen months. Of all the applicants, Mr. McRae had the most knowledge and the best skills and abilities to perform the duties and responsibilities of the position. There is no persuasive evidence that DEP discriminated against Petitioner in making an employment decision relative to position No. 2503.

53. Finally, there is no persuasive evidence that Respondent's staff ever told Petitioner that he would not be considered for a job because he had a doctorate. He was never advised that an interview with Respondent equated to a job offer. Moreover, there is no persuasive evidence that Respondent or DEP changed job classifications or varied conditions of employment to discriminate against Petitioner based on his race, gender, or age.

    CONCLUSIONS OF LAW

    
    

54. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statues.

55. Petitioner's Amended Petition for Relief asserts that Respondent targeted applicants with M.S. degrees, as opposed to applicants with higher academic degrees despite the minimum qualifications published in the JOAs. He also claims that Respondent made its employment decisions based on specialized areas of education and experience in order to promote FMRI's employees and as a pretext for racial, gender, and/or age discrimination. If Petitioner's charges were true, it would arguably constitute a violation of Section 760.10(1)(a), Florida Statues, 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.

    
    

56. In order to make out a prima facie case of race, gender, or age discrimination under Section 760.10(1)(a), Florida Statues, 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 qualification

    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).

57. Petitioner filed his Charge of Discrimination more than 365 days after Respondent made the employment decisions in position Nos. 543 (JOA # 005-6), 213, 956, and 1099. Petitioner did not apply for position Nos. 918, 966, 859, 1160, 1161, and 1162 until after he filed his Charge of Discrimination. Petitioner never filed an application for position No. 671. Accordingly, Petitioner's allegations regarding these positions cannot be considered here.

58. Petitioner has met his burden of proving that he is a member of a protected class. He also has proved that he met the minimum qualifications for position Nos. 543 (JOA #047-7), 1071, 869, 878, and 2503.

59. Petitioner withdrew his application for position

    
    

    No. 543 before the interview process was complete. Therefore, he cannot claim that he suffered an adverse employment decision.

60. Petitioner only filed a resume for position No. 878.

    
    

    However, he has proved that he was subject to an adverse

    employment decision by testifying that he received Respondent's rejection letter dated August 11, 1997. Petitioner did not meet his prima facie burden of proving that a person outside the protected class, or a different sex or age, was chosen for this position or that Respondent continued to accept applications after refusing to hire Petitioner.

61. When Petitioner applied for position Nos. 1971 and 869, Respondent only had jurisdiction over land-based mammals, birds, and freshwater fish species. Petitioner's education and experience with salt-water fishery does not mean that he had the preferred knowledge, abilities, and skills to work with the species of animals regulated by Respondent at that time.

62. The record is clear that Respondent always screened applications for biologist positions that included the following preferred and essential knowledge, skills, and abilities: (a) demonstrated interest in wildlife management; (b) wildlife management experience; (c) a degree in wildlife science; (d) computer literacy; (e) knowledge of statistics through regression; and (f) knowledge of database management.

    Respondent never interviewed anyone whose application failed to demonstrate knowledge, abilities, and skills in these areas.

63. The selected candidates for position Nos. 1071 and 869 were white males, ages unknown. Even if the ages of the selected candidates were under the age of 40, Respondent has

    articulated a legitimate nondiscriminatory reason for its employment decisions regarding these positions. That is to say, Petitioner did not meet all essential and preferred selection criteria for the positions because he had no education and experience in fresh-water fish and wildlife management. On the other hand, the selected candidates for all wildlife biologist positions had education and experience in wildlife/environmental science.

64. As to position No. 2503, Petitioner filed a Charge of Discrimination against DEP with FCHR in FCHR Case No. 97-2666, claiming that the agency had committed an unlawful employment practice in making its employment decision relative to position No. 2503. FCHR issued a Determination of No Cause in that case on August 18, 1999.

65. FCHR Case No. 97-2666 was referred to DOAH and assigned to Judge Alexander, who subsequently transferred Petitioner's claim regarding position No. 2503 from DOAH Case No. 99-4037 to the instant case. Judge Alexander made this transfer because FMRI was merged with Respondent on July 1, 1999.

66. There is no merit to Petitioner's claim that Respondent and DEP made it difficult for him to prepare for hearing by refusing to provide him with requested documents in a

    timely fashion. In fact, the record contains more documentation relative to position No. 2503 than any other position.

67. Both agencies made a good faith effort to furnish Petitioner with requested documents as soon as Petitioner properly identified them. Respondent furnished Petitioner with a box of FMRI's documents that were stored and scheduled for destruction as soon as the documents were located in May 2000. Even so, Petitioner did not offer any relevant exhibits into evidence that had not already been produced. There is no evidence that the documents Petitioner was seeking immediately before the hearing, such as reading files related to position No. 2503, ever existed, and if they did exist, that Petitioner was prejudiced by their non-production.

68. The record clearly reflects that Respondent was diligent in its attempts to respond to Petitioner's discovery requests. Petitioner had more than ample time to prepare for hearing.

69. As to position No. 2503, DEP selected a white male, under the age of forty. Respondent's employees, who were involved in making this employment decision while they were working at DEP, articulated a legitimate nondiscriminatory reason for not interviewing or selecting Petitioner for this position. The greater weight of the evidence reflects that the selected candidate had more experience in computer modeling and

population assessment techniques and was more qualified for the job of Research Scientist than Petitioner. DEP did not discriminate against Petitioner on the basis of race, gender, or age in regards to position No. 2503.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

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

DONE AND ENTERED this 15th day of September, 2000, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(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 15th day of September, 2000.

COPIES FURNISHED:

Ausbon Brown, Jr. Post Office Box 10946

Daytona Beach, Florida 32120-0946

Preston T. Robertson, Esquire Sharman H. Green, Esquire Florida Fish and Wildlife

Conservation Commission Bryant Building

620 South Meridian Street Tallahassee, Florida 32399-1600

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

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: 99-004331

Orders for Case No: 99-004331