STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT F. CLARKE,

Petitioner,

vs.

SANTA FE COMMUNITY COLLEGE,

Respondent.

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) Case No. 02-3088

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RECOMMENDED ORDER

A hearing was held pursuant to notice, on October 25, 2002, in Gainesville, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Robert F. Clarke

10640 Southwest 129th Court Miami, Florida 33186

For Respondent: Michael Mattimore, Esquire

Jonathan W. Oliff, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Amended Charge of Discrimination filed by Petitioner on May 20, 2002.

PRELIMINARY STATEMENT

On May 20, 2002, Petitioner, Robert F. Clarke, filed an Amended Charge of Discrimination with the Florida Commission on Human Relations (FCHR) which alleged that Santa Fe Community College violated Section 760.10, Florida Statutes, by discriminating against him on the basis of age and disability.

The allegations were investigated and on July 25, 2002, FCHR issued its determination of "no cause" and Notice of Determination: No Cause.

A Petition of Relief was filed by Petitioner on

July 31, 2002. FCHR transmitted the case to the Division of Administrative Hearings (Division) on or about August 5, 2002. A Notice of Hearing was issued setting the case for formal hearing on October 25, 2002. By Order dated September 6, 2002, Petitioner was granted permission to appear by telephone.

At hearing, Petitioner appeared by telephone and testified on his own behalf.1 Respondent presented the testimony of Lela Elmore, Pat Smittle, Curtis Jefferson, and Cynthia Holm.

Respondent offered into evidence Exhibits 1 through 9, which were admitted into evidence.

A Transcript consisting of one volume was filed on November 15, 2002. Respondent filed a Motion for Enlargement of Time in which to file Proposed Recommended Orders. The motion was granted. Proposed Recommended Orders were filed by the

Petitioner and Respondent on December 12, 2002, and December 9, 2002, respectively, and have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. In August of 2001, Respondent, Santa Fe Community College, had a vacancy in the Library Director position. Respondent posted a position description for this position on August 23, 2001. The posting of this vacancy identified the application deadline in this manner: "Review will be on 9/6/01 and continue until filled."

2. The position vacancy notice included the following:

   
   

   MINIMUM QUALIFICATIONS: Master's degree in library Science (MLS/MLIS) from an ALA accredited program with at least five years of library experience with increasing responsibility. Experience in higher education, especially in a community college setting, is strongly preferred. Successful library administrative experience is required. Demonstrated strong managerial, organizational, and planning skills including budgetary skills; effective working relationships with students, faculty, and administrators; a commitment to focused service to students and faculty; support 21st Century learning outcomes; the ability to develop and manage library courses; and the ability to lead the library to adapt to new and emerging technology.

   Must be able to provide leadership that motivates staff to perform at their highest level and develop a teamwork environment within the library and beyond; evaluate program offerings and staff performance and provide leadership to enhance both, and have

   a broad understanding of operations and concepts in public and technical services.

   
   

   APPLICATION PROCESS: All applicants must submit a SFCC application, letter of intent, updated resume, three current letters of recommendation, and college transcripts. . . .

   
   

3. Lela Elmore is the coordinator for SFCC's human resources department. According to Ms. Elmore, when a vacancy occurs at SFCC, the department makes a request for the position to be posted. After a job is posted, a selection committee is convened. Members of a selection committee are chosen by the administrative leadership of the department with the vacancy. The members of the selection committee go through an orientation generally conducted by Ms. Elmore. The minimum job requirements for the position and the position's job duties are reviewed by the selection committee. The college requires the composition of the selection committee to be diverse with regard to gender, race, and age.

4. When the college receives an application for a position, it is sent directly to the human resources office, where it is placed in an application file for that position. All applications are date-stamped on the day they are received. Respondent acknowledges all applications with a postcard and advises the applicant of any missing materials when an application is incomplete.

5. An application checklist is generated for every vacant position at the college. The application checklist is a detailed list of who has applied for a particular position, the position for which they have applied, and what items have been submitted to the college. Respondent maintained an application checklist in the application file for the Library Director position.

6. Respondent's policy is to review only applications that are complete. The application checklist is used to indicate which applications are complete and are ready to be reviewed.

7. Dr. Pat Smittle is the college's Associate Vice President for Academic Resources. Dr. Smittle was the chair of the selection committee for the Library Director position. In her capacity with the college, Dr. Smittle supervises the Library Director position and in the past has served as Interim Library Director for the college for approximately two years. Dr. Smittle developed the job posting and the requirements for the Library Director position.

8. On October 2, 2001, the selection committee chair directed the selection committee to review the application file for the Library Director position.

9. As of October 11, 2001, the selection committee had selected and scheduled two applicants for the Library Director

   position for interviews. The interviews were scheduled and were conducted on October 17, 2001.

10. The college received Petitioner's initial application on October 16, 2001. Despite his review of the job description, Petitioner did not submit a completed application. While the application did not inquire as to an applicant's age, Petitioner indicated on his application that his date of birth is 6-20-32.

11. The college sent a postcard to Petitioner on October 16, 2001, informing him that his application was not

    complete. The postcard indicated that three current letters of recommendation were needed to complete Petitioner's application.

12. After conducting interviews of two candidates, the selection committee recommended that Myra Sterrett be offered the Library Director position. The selection committee submitted a Personnel Placement Request and recommended that the college hire Ms. Sterrett. Ms. Sterrett accepted the offer and was hired as the college's Library Director.

13. Ms. Sterrett's application does not indicate her age.

    
    

    While her age could possibly be inferred from the dates of her receiving her bachelor and master's degrees which are listed on her application, Ms. Sterrett's age is not clear from the record.

14. Petitioner's three letters of recommendation were not received until October 25, 2001, at which time Petitioner's application packet was marked as complete.

15. The selection committee never reviewed Petitioner's application because it was incomplete until October 25, 2001, after a decision was made on which applicant would be hired.

16. Petitioner has a Ph.D. and M.L.S. in library science.

    
    

    He was director of libraries for the City of Hialeah, Florida, from 1992-1995. He was on the reference staff of the Miami-Dade Public Library System from 1990-1992. These positions satisfied the requirement of at least five years of library experience.

    Petitioner has additional library experience, including Director of the Foods Library, United States Food and Drug Administration, and Director of the Mental Health Study Center Library of the United States National Institute of Mental Health, as well as other library experience that dates back to the 1960's.

17. The job vacancy posting expressly states that "review will be on 9/6/01 and continue until filled." Clearly, the review conducted by the selection committee was done after that date.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Sections 120.569 and 120.57, Florida Statutes.

19. Section 760.10(1), 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 handicap.

20. In order to make out a prima facie case of age discrimination under Section 760.10(1)(a), Florida Statutes,2 Petitioner must show that he was a member of a protected age group, that he was subject to adverse employment action, and that he lost the position to a younger person. Benson v. Tocco, Inc., 113 F.3d 1203, 1207 (11th Cir. 1997), citing McDonald

    Douglass Corp. v. Green, 411 U.S. 792 (1973).

    
    

21. Similarly, in order to establish a prima facie case of disability discrimination, Petitioner must show that he is disabled, is able to perform the essential elements of the job he seeks, and that he was discriminated against by the employer because of his disability. Reed v. Heil Co., 206 F.3d 1055 (11th Cir. 2000).

22. Florida courts have recognized that actions for discrimination on the basis of disability are analyzed under the same framework as Americans with Disabilities Act (ADA) claims.

    Chanda v. Engelhard/ICC, 234 F.3d 1219 (11th Cir. 2000). The ADA defines a disability as a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Chanda, supra at 1221. At no time has Petitioner alleged or presented evidence that he is restricted in the manner in which he can perform any major life activity.

    At hearing, Petitioner stated that his disability in no way hampers him and that he asks for no accommodation. While Petitioner stated on his application that he is a "disabled vet more than 30%," he failed to prove that any condition he has constituted a handicap as contemplated by the ADA.

23. Accordingly, Petitioner has not established a prima facie case of handicap discrimination and that part of his charge of discrimination fails.

24. Arguably, Petitioner has met his burden of proving a prima facie case of age discrimination. Although he did not have higher education library experience which was "strongly preferred," he met the minimum qualifications for the job. And, he was subject to an adverse employment decision in that he was not hired for the job. While it is not entirely clear from the record that a person outside the protected class (younger) was hired for the job, that fact does not appear to be in dispute.

25. 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.3d 1303 (11th Cir. 2000).

26. Respondent has met its burden of production.

    
    

    Respondent has adequately articulated a legitimate, non- discriminatory explanation for hiring Ms. Sterett instead of Petitioner. Respondent established that its policy is that only complete applications for employment are considered and that it did not review or consider Petitioner's application because it was incomplete. Beginning on August 23, 2001, the Respondent advertised for the vacant Library Director position. On October 2, 2001, the selection committee chair directed the selection committee to review the application file for the position. By October 11, 2001, the selection committee had already selected and scheduled two applicants for the position for interviews. When Petitioner's application was completed on October 25, 2001, interviews had already been conducted and an applicant had been selected for the Library Director position.

    As such, the Respondent has asserted a legitimate non- discriminatory reason for not hiring Petitioner. The decision was based upon legitimate means that did not penalize the Petitioner based upon his age.

27. 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.

28. Other than Petitioner's assertions that Respondent discriminated against him, Petitioner presented no evidence establishing that Respondent's reasons were pretextual.

29. 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).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order denying and dismissing the Petition for Relief.

DONE AND ENTERED this 17th day of January, 2003, in Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 17th day of January, 2003.

ENDNOTES

1/ During the hearing, Petitioner requested the opportunity to submit his employment application documents by facsimile as a late-filed exhibit. The request was granted and Petitioner was given until October 29, 2002 in which to file the exhibit.

Nothing was filed with the Division. However, the majority of the documents from Petitioner's application packet were admitted into evidence as Respondent's Exhibit number six.

2/ FCHR and Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

COPIES FURNISHED:

Robert F. Clarke

10640 Southwest 129th Court Miami, Florida 33186

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Michael Mattimore, Esquire Jonathan W. Oliff, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 02-003088

Orders for Case No: 02-003088