were offered and received into evidence. At the close of the evidentiary portion of the hearing on April 24, 2003, the
undersigned established a deadline for filing proposed recommended orders (no later than 45 days from the date of the filing of the hearing transcript with the Division).
The Transcript of the final hearing (consisting of one volume) was filed with the Division on May 19, 2003.
Accordingly, proposed recommended orders had to be filed no later than July 3, 2003.
On July 3, 2003, the County timely filed a Proposed Recommended Order, which has been carefully considered by the undersigned. On July 11, 2003, Petitioner filed his post- hearing submittal, which the undersigned has also carefully considered, notwithstanding that it was filed after the July 3, 2003, filing deadline.
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
The County is a political subdivision of the State of Florida.
Among the various departments of County government is the Community Services Department.
The Libraries Division is administratively located within the Community Services Department.
The Libraries Division operates a main library, five
regional libraries, 36 branch libraries, and various reading centers.
There are approximately 900 employees in the Libraries Division, about 200 more than there were in 2000.
Librarian IV is a "high level administrative position" in the Libraries Division.
The position description for Librarian IV (which has been in effect at all times material to the instant case) reads as follows:
Nature of Work
This is professional work at the administrative level of the library system.
Work involves responsibility for assisting administrative superiors and coordinating assigned major units of the library system. Work involves assisting in interpreting and implementing all library policies, assisting in staffing and supervising assigned major units, and assisting in coordinating support services within the library system and with other agencies. Duties are performed with considerable independence and initiative within the framework of established policies and procedures. Work is subject to review and evaluation through periodic conferences, attainment of desired management objectives, and conformity with established policies and procedures.
Distinguishing Characteristics
This class is distinguished from Librarian III by the additional administrative responsibilities.
Illustrative Tasks
Assists administrative superiors in coordinating, staffing, and supervising the operations of assigned major units of the library system; assists in coordinating library system supportive services.
Assists subordinate librarians in planning, coordinating, and organizing specific functional, programmatic, and physical aspects of library services and facilities.
Assists in interpreting and implementing all library policies.
Serves as assistant library staff officer for contacts and communications services within the county library system and the community at large.
Conducts assigned library research and procedural studies; prepares reports relative to recommended solutions or courses of action.
Cooperates with governmental and private agencies in special surveys, studies, and programs.
Performs related work as required. Knowledge, Abilities and Skills
Considerable knowledge of professional library principles, practices, and techniques.
Considerable knowledge of the current literature, trends, and developments in the field of library science and administration appropriate to the areas of specialization.
Considerable knowledge of general community needs and interests in relation to library services in the areas of specialization.
Considerable knowledge of the principles of supervision, organization, and administration.
Considerable knowledge of research techniques and the sources and availability of current information.
Ability to analyze facts and exercise sound judgment in decision making.
Ability to plan, direct, and coordinate the work of subordinates.
Ability to express ideas effectively, both orally and in writing.
Ability to serve the public and fellow employees with honesty and integrity in full accord with the letter and spirit of Broward County's Ethics and Conflict of Interest policies.
Ability to establish and maintain effective working relationships with the general public, co-workers, elected and appointed officials and members of diverse cultural and linguistic backgrounds regardless of race, religion, age, sex, disability or political affiliation.
Desirable Experience and Training
A Master's Degree in library science from a college or university accredited by the American Library Association; considerable experience of a supervisory nature in the operation of a library system, including some experience in administrative aspects of the work; or any equivalent combination of training and experience.
In or about the fall of 1999, the County issued a job announcement for a Librarian IV position (Librarian IV Job Announcement), which read, in part, as follows:
CIVIL SERVICE OPPORTUNITY OPEN-COMPETITIVE
Librarian IV
Salary Range- $38,552-$57,168 per year DESCRIPTION OF DUTIES: This is professional work at the administrative level of the library system. Work involves assisting administrative superiors in coordinating, staffing, and supervising the operations of assigned major units of the library system; assisting in coordinating library system supportive services; and assisting subordinate librarians in planning, coordinating and organizing specific functional, programmatic, and physical aspects of library services and facilities. Employees in this class assist in interpreting and implementing all library policies; serve as assistant library staff officer for contacts and communication services within the county library system and the community at large; conduct assigned library research and procedural studies; and prepare reports relative to recommended solutions or courses of action. Work also involves cooperating with governmental and private agencies in special surveys, studies, and programs. Performs related work as required.
QUALIFICATION REQUIREMENTS: Master's Degree
in Library Science from a college or university accredited by the American Library Association and five (5) years experience in a supervisory capacity in the operation of a library system or a major library, which must have included six (6) months experience in administrative aspects of the work.
BASIS OF RATING: NO WRITTEN TEST IS REQUIRED
The selection procedure shall consist of two parts. Part I will be an unassembled
rating consisting of an evaluation of experience, training and education shown on the application, plus any corroborative or supplementary information which may be obtained. Part II will be an oral panel interview designed to evaluate each applicant's knowledge in this field of work.
Applicants must attain a passing score on both parts of the examination to be certified. In arriving at a final numeric score which will determine the order of the eligible list for the position the following values will be applied.
Unassembled Rating- 50%
Oral Panel Interview- 50%
* * * EXAMINATION, NOTICE OF RATING AND TERM OF
ELIGIBILITY: Candidates who complete the
application and exam process are sent a Notice of Rating indicating if they are qualified for the position. Status of the eligible list established from this announcement is for one year beginning with the issue date of the Notice of
Rating. . . .
* * *
STARTING PAY: Starting salary is normally the minimum of the salary range.
* * *
SPECIAL ACCOMMODATION AND COMMUNICATION
NEEDS: Broward County is pleased to provide necessary reasonable accommodations in the testing process for disabled applicants. It is the responsibility of applicants requesting reasonable accommodation to submit requests in writing to the Applications Center staff at the time of submission of the application. . . .
* * *
NOTE: Upon completion of the rating portion of the examination, only candidates who are considered most qualified will be invited to participate in an oral panel interview. The remaining qualified applicants will stay on record and may be invited in for an oral panel interview at a later time. As necessary, the list established under this announcement may be used to selectively certify on a promotional basis Classified County Merit System Regular Employees.
The Librarian IV Job Announcement was widely advertised.
Petitioner is a highly experienced and accomplished librarian having both a masters degree and doctorate in library science. He met the "qualification requirements" set forth in the Librarian IV Job Announcement.
After seeing the Librarian IV job announcement, Petitioner submitted an application for the position.
Documents he attached to the application revealed that his date of birth was June 20, 1932 (although the application form that he filled out did not ask for such information).
Petitioner has various health problems, but he did not request any special "accommodation in the testing process." (Petitioner has had "lens implants in [his] eyes [since] 1999," but he still needs to use a magnifying glass to read. In addition to having poor eyesight, he has been diagnosed with Charcot's foot (a foot deformity) and autonomic neuropathy
(which "causes [him] to get dizzy when [he] get[s] up or climb[s] stairs or if [he] walk[s] too far or tr[ies] to get out of bed")).
The United States Department of Veterans Affairs has determined that Petitioner has a 100 percent service-connected disability.
Petitioner was one of 26 applicants who responded to the Librarian IV Job Announcement.
All 26 applications received by the County were reviewed by a panel of three County employees. The panel consisted of two "subject matter experts" and one human resources person. Susan Stokes2 and Miriam Hershenson were the two "subject matter experts" on the panel. They were both Librarian V's. The remaining panel member was Cynthia Munn, a Human Resource Analyst II.
Petitioner was one of 17 applicants to be selected, based upon the panel's evaluation of the application materials submitted, for an oral interview before the panel.
Fifteen of the 17 selected applicants, including Petitioner, appeared for such an "oral panel interview."
Each applicant was interviewed separately by the panel.
"[T]he interviews [were] all conducted in the same manner."
At the outset of each interview, the applicant was advised that the interview would last 25 to 30 minutes and that the "time factor" should be "ke[pt] in mind" in answering the panel's questions. It was emphasized that answers should be "clear and concise."
The interview questions were "formulated ahead of time" by the panel's "subject matter experts," Ms. Stokes and Ms. Hershenson. A total of ten questions were used during the interview process. The questions were asked in the same sequence during each interview "in an effort to make it an even playing field."
Following the interview, each panel member, without discussing the matter with the other two members of the panel, independently rated the applicant's interview performance.
Petitioner was interviewed on or about January 28, 2000.
Like the other 14 interviews, Petitioner's interview was "strictly an oral [one]."
Contrary to the assertion made in Petitioner's employment discrimination charge, he did not use a magnifying glass during the interview. Indeed, there was no need for him to do so since there was no reading (or writing, for that matter) involved as part of the interview.
Petitioner did not physically stumble, nor was he unsteady on his feet at any time during the interview.
Petitioner performed poorly during his interview.
His answers were rambling and, at times, non- responsive. The panel's efforts to "redirect and refocus him" were unavailing.
He was so long-winded that he was only able to answer five questions in the time allotted for the interview (which was the same amount of time the other interviewees were given).
Ms. Munn gave Petitioner failing scores of "F" in "communicative skills" and "D" in "job knowledge."
Petitioner also received a failing score (of "C") in "communicative skills" from Ms. Hershenson.
Neither Petitioner's age, nor his poor eyesight and other health problems, were factors in either Ms. Munn's or Ms. Hershenson's scoring of Petitioner's interview performance. The scores that they gave him were based solely on their good faith evaluation of how Petitioner performed during his interview.
Petitioner was not extended an offer by the County to fill a Librarian IV position.
The County hired (as Librarian IV's) four of the 15 applicants who were interviewed by the "oral interview panel."
One of these new hires had a hearing impairment, to compensate for which she used hearing aids and lip read.
According to their applications, all four of the applicants who were hired received their undergraduates degrees at least seven years after Petitioner received his undergraduate degree,3 and the three that provided the date of their high school graduation on their applications graduated high school at least 16 years after the date (1949) Petitioner's application indicates he received his high school diploma.
There has been no persuasive showing made that the County's decision not to offer Petitioner employment was motivated by anything other than legitimate business considerations.
CONCLUSIONS OF LAW
The Florida Civil Rights Act of 1992 (Act) is codified in Sections 760.01 through 760.11, Florida Statutes, and Section 509.092, Florida Statutes. "Because th[e] [A]ct is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e-2, federal case law dealing with Title VII is applicable." Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
Among other things, the Act makes certain acts "unlawful employment practices" and gives the FCHR the authority, if it finds following an administrative hearing
conducted pursuant to Sections 120.569 and 120.57, Florida Statutes, that such an "unlawful employment practice" has occurred, to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay." Sections 760.10 and 760.11(6), Florida Statutes.
To obtain such relief from the FCHR, a person who claims to have been the victim of an "unlawful employment practice" must, "within 365 days of the alleged violation," file a complaint ("contain[ing] a short and plain statement of the facts describing the violation and the relief sought") with the FCHR, the Equal Employment Opportunity Commission, or "any unit of government of the state which is a fair-employment-practice agency under 29 C.F.R. ss. 1601.70-1601.80." Section 760.11(1), Florida Statutes. This 365-day period is a "limitations period" that can be "be equitably tolled, but . . . only [based on the] acts or circumstances . . . enumerated in section 95.051," Florida Statutes.4 Greene v. Seminole Electric Co-op., Inc., 701 So. 2d 646, 648 (Fla. 5th DCA 1997).
"[O]nly those claims that are fairly encompassed within a [timely-filed complaint] can be the subject of [an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes]" and any subsequent FCHR award of
relief to the complainant. Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994).
The "unlawful employment practices" prohibited by the Act include those described in Section 760.10(1)(a), Florida Statutes, which provides as follows:
It is an unlawful employment practice for an employer:[5]
(1)(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap,[6] or marital status.
In the instant case, Petitioner has alleged that the County committed such an "unlawful employment practice" when it acted with discriminatory intent based on his "[a]ge and [d]isability" by not hiring him to fill a Librarian IV position for which he had applied.
Petitioner had the burden of proving, at the administrative hearing held in this case, that he was the victim of such discriminatorily motivated action. See Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996)("'The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."'); Florida Department of Health and
Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal.'"); and Mack v. County of Cook, 827 F. Supp. 1381, 1385 (N.D. Ill. 1993)("To prevail on a racially- based discriminatory discharge claim under Title VII, Mack must prove that she was a victim of intentional discrimination.").
"Discriminatory intent may be established through direct or indirect circumstantial evidence." Johnson v. Hamrick, 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001).
"Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption." King v. La Playa-De Varadero Restaurant, No. 02-2502, 2003 WL 435084 *3 n.9 (Fla. DOAH 2003)(Recommended Order).
"[D]irect evidence is composed of 'only the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor. . . .
If an alleged statement at best merely suggests a discriminatory motive, then it is by definition only circumstantial evidence." Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999).
Likewise, a statement "that is subject to more than one interpretation . . . does not constitute direct evidence."
Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997).
"[D]irect evidence of intent is often unavailable." Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to be victims of discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997).
Where a complainant attempts to prove intentional discrimination using circumstantial evidence, the "shifting burden framework established by the [United States] Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d
207 (1981)" is applied. "Under this framework, the [complainant] has the initial burden of establishing a prima facie case of discrimination. If [the complainant] meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. The burden then shifts to the employer to 'articulate' a legitimate, non-discriminatory reason for its action.[7] If the employer successfully articulates such a reason, then the burden shifts back to the [complainant] to show that the proffered reason is really
pretext for unlawful discrimination." Schoenfeld v. Babbitt,
168 F.3d at 1267 (citations omitted.).
In the instant case, as Petitioner conceded at the final hearing, he produced no direct evidence to support his claim that he had been the victim of intentional discrimination on the part of the County. He therefore relied on circumstantial evidence to prove his claim.
"To make out a prima facie case of age discrimination [based on circumstantial evidence] in a case of failure to hire, [a complainant] must show 1) that he belongs to the protected class, 2) that he applied for and was qualified for the job, 3) that despite his qualifications he was rejected, and 4) that the employer either ultimately filled the position with someone sufficiently younger to permit an inference of age discrimination, . . . or continued to seek applicants from among those having [the complainant's] qualifications." Fowle v. C & C Cola, a division of ITT-Continental Baking Co., 868 F.2d 59,
61 (3d Cir. 1989). "To establish the second element of a prima
facie case, [the complainant] need not prove that he was better qualified than [the person hired to fill the position]. Rather, he need make only a 'minimal showing of qualification.'" Bombero v. Warner-Lambert Co., 142 F. Supp. 2d 196, 202 (D. Conn. 2000).
To establish a prima facie case of handicap discrimination based on circumstantial evidence, a complainant must show that "(1) he is [handicapped][8]; (2) he was a 'qualified individual' at the relevant time, meaning he could perform the essential functions of the job in question with or without reasonable accommodations[9]; and (3) he was discriminated against because of his [handicap]." Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). As part of such a showing, the complainant must present proof that her employer "had actual or constructive knowledge of the [handicap] or considered [the complainant] to be [handicapped]." Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1226 (11th Cir. 1999). "At the most basic level, it is intuitively clear when viewing the [Act's] language in a straightforward manner that an employer cannot [take adverse action against] an employee 'because of' a [handicap] unless it knows of the [handicap]. If it does not know of the [handicap], the employer is [taking adverse action against] the employee 'because of' some other reason." Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995). "Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice" of an employee's handicap. Morisky v. Broward County, 80 F.3d 445, 448 (11th Cir. 1996).
Under no circumstances is proof that, in essence, amounts to no more than mere speculation and self-serving belief on the part of the complainant concerning the motives of the employer sufficient, standing alone, to establish a prima facie case of intentional discrimination. See Little v. Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991)("Little points to his own subjective belief that age motivated Boyd. An age discrimination plaintiff's own good faith belief that his age motivated his employer's action is of little value."); Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir. 1983)("We are not prepared to hold that a subjective belief of discrimination, however genuine, can be the basis of judicial relief."); and Shiflett v. GE Fanuc Automation, 960 F. Supp. 1022, 1031 (W.D. Va. 1997)("[A]ll too many leaps and unjustifiable inferences must be made before one can reasonably conclude that any causal connection exists between plaintiff's termination and his disability. Nothing in the record, apart from plaintiff's private speculation, provides any reason to believe there is such a connection. But '[m]ere unsupported speculation, such as this, is not enough to defeat a summary judgment motion.'").
At the administrative hearing held on his employment discrimination charge, Petitioner failed to prove, as was his
burden, that his not getting hired by the County as a Librarian IV was the product of age or handicap discrimination.
Even assuming arguendo (without deciding) that Petitioner established a prima facie case of age and handicap discrimination, the presumption of discrimination arising from such a showing was overcome by the County advancing a legitimate, non-discriminatory reason for not hiring Petitioner, to wit: his poor performance during the "oral panel interview." See Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93, 102, 104 (2d Cir. 2001)("Cromwell, in turn, articulated a legitimate business reason for not hiring Byrnie: Mancarella performed better than Byrnie during the candidate interviews and thus seemed, based on subjective criteria, the better qualified candidate. . . . As the district court properly noted, '[t]here is nothing unlawful about an employer's basing its hiring decision on subjective criteria, such as the impression an individual makes during an interview.'"). Petitioner was unable to show that this justification given by the County for not hiring him was pretextual. In fact, the evidentiary record affirmatively establishes that, more likely than not, the proffered reason was the real reason Petitioner was not hired. Under such circumstances, the County cannot be found to have committed the "unlawful employment practice" alleged in the
