vs. ) Case No. 01-2624
Respondent. )
A hearing was held pursuant to notice, on September 18, 2001, in Pensacola, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.
Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Amended Charge of Discrimination filed by Petitioner on November 24, 2000.
On November 24, 2000, Petitioner, William Thompson, filed an Amended Charge of Discrimination with the Florida Commission on Human Relations (FCHR) which alleged that the Historic Pensacola Preservation Board (HPPB) violated Section 760.10, Florida Statutes, by discriminating against him on the basis of age and gender. At the time the charge of discrimination was filed, the HPPB was within the Department of State.
FCHR had not completed its investigation in 180 days after Petitioner's filing of the charge. Petitioner elected to submit a request for formal hearing pursuant to Sections 760.11(4)(b) and (8), Florida Statutes. The request for hearing was filed with the Division of Administrative Hearings (Division) on or about July 5, 2001. A Notice of Hearing was issued setting the case for formal hearing on September 18, 2001.
Petitioner filed a letter with the Division on August 8, 2001, addressed to the undersigned. In that letter, Petitioner stated that he would be laid-off from his Other Personal Services (OPS) position as of August 18, 2001.
Petitioner alleged that he was being laid-off in retaliation for filing the discrimination charge against the HPPB.
Respondent, Department of State, filed a Motion to Dismiss Petitioner's Charge of Retaliation based upon the transfer of programmatic and operational activities of the HPPB and all personnel of the HPPB to the University of West Florida pursuant to Section 17, Chapter 2001-199, Laws of Florida. The motion was granted.
At hearing, Petitioner testified on his own behalf.
Petitioner offered into evidence Composite Exhibit 1 which was admitted into evidence. Respondent presented the testimony of Dora Johnson, Richard Brosnaham, and John Daniels. Respondent offered into evidence Exhibits 1 through 8, including the deposition testimony of Thomas Muir, which were admitted into evidence.
A Transcript consisting of one volume was filed on October 5, 2001. Respondent requested a due date of October 31, 2001, for filing Proposed Recommended Orders.
That request was granted. Proposed Recommended Orders were filed by the Petitioner and Respondent on October 22, 2001 and October 30, 2001, respectively, and have been considered in the preparation of this Recommended Order.
HPPB was established as part of the Department of State pursuant to Section 266.00001 and Section 266.0011,
Florida Statutes (2000). The overall purposes of the Board were: (a) to restore, preserve, maintain, reconstruct, and operate for the use, benefit, and education of the public certain ancient or historic landmarks, sites, cemeteries, graves, military works, monuments, locations, remains, or buildings, and other objects of historical or antiquarian interest of the City of Pensacola and Escambia County; and (b) to research, prepare, publish, and procure for the use and benefit of the general public books, reports, articles, pamphlets, brochures, documents, maps, photographs, films, sound recordings, and other products of a similar nature in furtherance of the protection and preservation of and the dissemination of information about historic sites and properties, as well as persons, places, events, conditions, objects, patterns, behaviors, records, and times pertaining to Florida history. Section 266.0011, Florida Statutes (2000).
HPPB was abolished by the Florida Legislature
pursuant to Sections 1 through 3, Chapter 2001-199, Laws of Florida. As of July 1, 2001, the Legislature transferred the functions performed by HPPB to the University of West Florida. Chapter 2001-199, Laws of Florida, Section 17. As of July 1, 2001, all HPPB personnel, including Petitioner William Thompson, became employees of the University of West Florida.
The Department of State no longer has museum education specialist positions in Pensacola.
Petitioner's Claims
Petitioner was hired by the Historic Pensacola Preservation Board (HPPB) as an OPS museum guide on or about May 24, 2000. OPS museum guides are hourly wage employees, and as such, are not part of the State of Florida Career Service System. There are no promotions from an OPS position. The quality of Petitioner's work for Respondent is not at issue as Respondent stipulated that Petitioner was a competent, satisfactory employee.
During October 2000, HPPB began the hiring process for a Museum Education Specialist within the Career Service System, a position for which Petitioner applied. The position was advertised for 14 days. The applications were initially screened by the Department of State, Bureau of Human Resources in Tallahassee, and all applications of candidates meeting the minimum requirements (approximately 40) were sent to HPPB in Pensacola for selection of candidates to be interviewed. Petitioner and four other candidates were selected for an interview by John Daniels who, at that time, was manager of the HPPB of Trustees; by Thomas Muir, who at that time was the museum administrator of HPPB; and by Richard Brosnaham, who at
the time was Historian for HPPB. One candidate withdrew her application before the interview.
HPPB used a uniformly applied selection module to evaluate candidates which had been approved by the Department of State, Bureau of Human Resources. The Board's selection module consisted of a copy of the Position Description and Class Specifications, Task/KSA Identification Form, Application Review Screening Criteria form, Interview Questions and scoring criteria, Written Exercise and rating scale, Rating/Ranking Form, Reference Check Form, and Employment Verification Form.
On or about October 26, 2000, HPPB interviewed the following candidates for the Museum Education Program Specialist Position: William Thompson, Jennifer Wood, Kristin Mullen, and Katherine Williams. Three of the candidates who were interviewed were already working at HPPB as OPS museum guides.
The selection committee consisted of Thomas Muir, John Daniels and Richard Brosnaham, all of whom participated in group interviews of the candidates. Dora Johnson, Administrative Assistant to HPPB, was present at each interview to explain benefits information.
During the oral interviews, in accordance with the selection module, each candidate was graded by the
interviewers using a uniform grading scale in the following areas based upon their responses to the interview questions:
(1) Ability to plan and prepare educational materials; (2) Ability to conduct training programs; (3) Knowledge of Pensacola's Historic District; (4) Ability to communicate effectively in writing; and (5) Ability to communicate effectively verbally.
Each of the interviews followed the same basic format. First, Mr. Daniels welcomed the candidate, generally explained the selection process, and engaged in some conversation to relax the candidate before beginning the interview. Thomas Muir then asked each candidate the four interview questions from the selection module. After the four interview questions were asked and answered, Mr. Daniels asked Mr. Brosnaham if he had any other questions for the candidate. Finally, Dora Johnson explained the salary and benefits package for the Museum Education Program Specialist position.
Petitioner alleges that he was asked why he decided to return to school at his age by John Daniels during the interview. The others present during the interview, John Daniels, Dora Johnson, Thomas Muir and Richard Brosnaham, all recalled that Mr. Daniels did not ask this question. Everyone besides the Petitioner present during the interview recalls that Mr. Daniels simply asked why Petitioner decided to return
to school or why he decided to study history. According to Mr. Muir, during the approximately 30 interviews which he conducted over time, he has never heard anyone from HPPB ask a potential employee questions regarding age or gender.
Mr. Daniels asked a question regarding Petitioner's return to school in an attempt to elicit Petitioner's interest in and dedication to history. As an educator, Mr. Daniels has been actively involved in lifelong learning programs, both in the classroom and in presenting seminars, and believes that age plays no role in terms of when one attends school or how long one continues his or her education.
At the conclusion of each interview, the candidate was given a written exercise to complete. The written exercise consisted of the following question: "What training or experience have you had in motivating people to become interested in history and artifacts?"
The purpose of the written exercise was to evaluate the candidates' ability to write and communicate in written form effectively, which is a critical skill for the Museum Education Program Specialist.
Following the interviews, each candidate was evaluated based on oral interview performance and the written exercise and assigned a score in accordance with the
Rating/Ranking Form that was part of the approved selection module.
The interviewers individually scored the candidates and did not discuss their scoring of the candidates with other interviewers at any time. Each interviewer submitted his completed Rating/Ranking Form to Dora Johnson who tallied the scores.
Neither Petitioner's age nor Petitioner's sex was a factor in the evaluations made by each interviewer of Petitioner for the position.
In accordance with the rating criteria established in the selection module, a candidate could receive a maximum of 25 points for the oral interview and 5 points for the written exercise, for a total of 30 points, from each of the three interviewers (Daniels, Muir and Brosnaham). Therefore, the maximum overall score that a candidate could receive was
90 points (that is, 30 points from each member of the selection committee).
Dora Johnson computed the scores for each candidate interviewed and recorded the scores on the Vacancy and Application Report Form. The scores for each candidate were as follows: Ms. Mullen received a total of 73 points; Ms. Williams received a total of 65 points; Mr. Thompson received a total of 60 points; and Ms. Wood received a total of 58
points. After calculating the scores, Ms. Johnson informed Mr. Daniels of the results. The candidate with the highest overall score, Kristin Mullen, was offered the position, which she accepted. Petitioner's score ranked him in third place out of the four candidates.
Ms. Johnson then completed the paperwork to fill the position, including the Vacancy and Applicant Report Position Information form. Mr. Brosnaham informed the candidates of the result of the selection process.
Mr. Muir, Mr. Daniels, and Mr. Brosnaham each found Ms. Mullen to be the most qualified candidate, in part, because she was able to demonstrate in her oral interview how her education and experience would meet the needs of HPPB for the position of Museum Education Program Specialist. They also found her to be the most prepared of any of the candidates interviewed, evidenced by the portfolio of writing samples and materials prepared for other museums that she presented at the interview.
According to the selection committee, Ms. Mullen's verbal and written communication skills were the strongest of the candidates interviewed. Written communication skills are especially important in this position because a Museum Education Program Specialist is responsible for writing interpretative manuals, volunteer manuals, brochures, and
flyers for HPPB. Also, Ms. Mullen had previous experience at two other museum sites.
Petitioner contends that he was discriminated against because, based on his assessment of his qualifications compared to those of the successful candidate, he was the most qualified for the position. Petitioner based this assessment on his completion of professional education courses while a student at the University of West Florida; that one semester as a student teacher was at Old Hometown, a school located in Historic Pensacola Village which focuses on Pensacola history; that while at Old Hometown, he planned, developed, and implemented education materials and lesson plans about Pensacola history; and that at the time of the interviews, he had been employed at the Historic Village for approximately five months, whereas Ms. Mullen had only been employed there a short period of time.
Petitioner is in his mid-40's. Ms. Mullen is in her 20's.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Sections 120.569 and 120.57, Florida Statutes.
Section 760.10(1)(a), Florida Statutes, states that it is an unlawful employment practice for an employer to
discharge or otherwise discriminate against an individual on the basis of age or gender.
In order to make out a prima facie case of gender or age discrimination under Section 760.10(1)(a), Florida Statutes, Petitioner must show that he was a member of a protected class; that he was 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. Carter v. Three Springs Residential Treatment, 132 F. 3rd 635 (11th Cir. 1998), citing McDonald Douglass Crop. v. Green, 411 U.S. 792 (1973).
Here, Petitioner has met his burden of proving a prima facie case of gender and age discrimination, i.e., he is a man in his mid-40's, he met the minimum qualifications for the job; he was subject to an adverse employment decision (not hired for the job); and a person outside the protected class was hired for the job.
When the charging party, i.e., the Petitioner, is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non- discriminatory explanation for the employment action. See Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting burdens of proof in discrimination cases). The employer has the burden of
production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Department of Corrections v. Chandler, supra; Alexander v. Fulton County, GA, 207 F. 3rd 1303 (11th Cir. 2000).
Respondent has met this burden. Respondent has adequately articulated a legitimate, non-discriminatory explanation for hiring Ms. Mullen instead of Petitioner. The protocol for selecting the Museum Education Program Specialist and the manner in which it was implemented do not reflect age or gender discrimination. The decision was based upon legitimate means that did not penalize the Petitioner based upon his age or gender. The selection module protocol comports with well-established methods for hiring career service employees, in a setting, that by its design and application, is not discriminatory in nature. Respondent's justifications for its choice were real and non- discriminatory.
Once the employer articulates a legitimate non- discriminatory explanation for its actions, the burden shifts back to the charging party to show that the explanation given by the employer was a pretext for intentional discrimination. "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered
reason for the employment decision is not worthy of belief." Department of Corrections v. Chandler, 582 So. 2d 1183 at 1186; Alexander v. Fulton County, GA, supra. Petitioner has not met this burden.
Petitioner alleges that Mr. Daniels asked him a question during the interview that he interprets as demonstrating age discrimination. However, the weight of the evidence (i.e., testimony of the other three persons in the room during the interview) suggests that there was no reference to Petitioner's age during the interview. Even assuming the question was asked as Petitioner alleges, it is not persuasive as evidence of intentional discrimination.
Courts have found only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, to constitute direct evidence of age discrimination. See e.g., Barnes v. Southwest Forest Industries, 814 F. 2d 607 at 610 (11th Cir. 1987) (remark by personnel manager to terminated security guard that in order to transfer "you would have to take another physical examination at your age, I don't believe you could pass it" was not considered direct evidence of age discrimination by the court); Williams v. General Motors Corp., 656 F. 2d 120 at 130 (5th Cir. Unit B 1981) cert. denied, 455 U.S. 943 (1982)
(scrap of paper on which was written "Too old--Lay Off" would constitute direct evidence of discriminatory intent).
Respondent satisfied its burden of proof that its employment decision to hire another candidate was non- discriminatory. Petitioner has not met his burden of showing that a discriminatory reason more likely than not motivated Respondent's hiring decision or that the reason for the decision is not worthy of belief. Certainly, the evidence does not show intentional discrimination on behalf of Respondent.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That the Florida Commission on Human Relations enter a final order denying and dismissing the Petition for Relief.
DONE AND ENTERED this 29th day of November, 2001, in Tallahassee, Leon County, Florida.
BARBARA J. STAROS
Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2001.
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.
