Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Gainesville, Florida on September 17, 2004. The appearances were as follows:
The issue to be resolved in this proceeding concerns whether the above-named Respondent discriminated against the
Petitioner based upon her race, in purported violation of Section 760.10, Florida Statutes.
This cause arose when a charge of discrimination was filed by the above-named Petitioner with the Florida Commission on Human Relations (Commission). The charge was filed January 7, 2004, and contained allegations that the Respondent Department of Corrections (Department) discriminated against the Petitioner based upon her race (Black). Ms. Means alleged that she had been passed over for promotion to a position of Accountant IV. She maintains that she was more qualified for that position than other successful applicants. She maintains that she did not get that promotion position because of her race. The allegations were investigated by the Commission and on May 26, 2004, the Commission issued a finding of "no cause" as result of its investigation.
Thereafter, a Petition for Relief was filed by Ms. Means and received by the Commission on June 28, 2004. In that petition she essentially alleges the charges contained in the original charge filed with the Commission. The petition was then forwarded to the Division of Administrative Hearings and ultimately to the undersigned administrative law judge.
The cause came on for hearing as noticed on September 17, 2004. At the hearing the Petitioner presented her own testimony
and one exhibit, which was admitted into evidence. The Respondent presented the testimony of one witness, and two exhibits, which were admitted into evidence. Upon conclusion of the proceeding, the parties were given an opportunity to submit proposed recommended orders. The Proposed Recommended Orders submitted have been considered in the rendition of this
Recommended Order.
The Petitioner, Barbara Means, is an employee of the Department, occupying the position of "Accountant III." She has been employed with the Department since 1994. She applied for a promotion to a position of "Accountant IV" in October 2003. She competed for that position with other employees.
The Petitioner was one of three finalists for the Accountant IV position. The other two finalists for the position were employees who had been hired by the Department in 1995 and 1997. One factor considered in the evaluation process for the promotion position was the various employees' most recent performance evaluations. The Petitioner had received lower overall performance evaluation scores than had the other two finalists.
The three finalists, including the Petitioner, were interviewed by a panel of four supervisors, one of whom was Omar Arocho, the Petitioner's own supervisor. Mr. Arocho supervised
both Petitioner Means and Ms Wells, one of the other finalists for the accountant position.
The four interviewers asked each employee applicant the same ten skills questions and then recorded their responses, for comparison with standard acceptable answers to the questions. The employee performance during this skill interview was considered to be crucial to a determination of who was to be promoted to the subject position. The testimony of Mr. Arocho persuasively established that the Petitioner was excelled in these interviews by the two competing co-workers. This is shown in his testimony, in the recorded responses to the questions in evidence, and their comparison to the standard acceptable answers provided. The conclusion of the evaluation panel of four supervisors, according to Mr. Arocho's testimony which is accepted, was that the Petitioner and the other two applicants were qualified, but that the other two applicants were more qualified than the Petitioner.
The Petitioner was not promoted to the position of Accountant IV and remains in the position of Accountant III with the Department. There was no substantial, persuasive evidence to show that the employment decision made by the panel of four supervisors, including supervisor Arocho, was based in whole or in part on any intentional discrimination or animus based upon the Petitioner's race.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).
In accordance with Subsection 760.10(1)(a), Florida Statutes, it is an unlawful employment practice for an employer 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, or marital status."
The Commission and courts in Florida have determined that federal decisional law and statutory law shall be used as guidance when construing the provisions of Chapter 760, Florida Statutes. Brand v. Florida Power Corporation, 633 So. 2d 504,
509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
The United States Supreme Court in McDonnell-Douglas
Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), established the analysis to be used in discrimination cases under Title VII, which method of analysis is persuasive in cases such as this one. In the case of St. Mary's Honor Center v.
Hicks, 509 U.S. 502 (1993) this method of analysis was upheld
and was further refined by the Court's holding that the overall burden of persuasion of the existence of discrimination or discriminatory animus by an employer remained on the plaintiff/petitioner.
In accordance with this analysis, the Petitioner has the burden of establishing, by preponderant evidence, a prima
facie case of unlawful discrimination. If a prima facie case is established, the burden shifts to the Respondent employer to go forward with some articulated legitimate, non-discriminatory reason for the action taken against the Petitioner. Once the non-discriminatory reason is offered by the employer, the burden shifts back to the Petitioner to demonstrate that the proffered reason is merely a pretext for discrimination. As the Supreme Court stated in St. Mary's Honor Center v. Hicks, supra, before finding discrimination, "[t]he fact finder must believe the Plaintiff's explanation of intentional discrimination." 509
U.S. at 519.
In that case the Supreme Court stressed that even if the fact-finder does not believe the proffered reason given by the employer, the burden remains with the Petitioner to demonstrate a discriminatory motive for the adverse employment action. Id.
In order for the Petitioner herein to establish a prima facie case of failure to promote based upon her race, the
Petitioner must establish: 1. that she is a member of a protected class; 2. that she was qualified for and applied for the position at issue; 3. that despite her qualifications she was rejected for the promotion; and 4. that another employee who was not a member of the protected class and who was no more qualified than the Petitioner was promoted to the position sought. See Beaty v. Stone, 24 F.3d 1330 (11th Cir. 1994).
The Petitioner has not established a prima facie case.
She has established that she is a member of a protected class, a racial minority. She has established that she was rejected for promotion to the Accountant IV position at issue. The testimony of her supervisor Mr. Arocho established that she possessed minimal qualifications for the position in dispute and thus that portion of the prima facie case test is satisfied. However, the Petitioner did not provide evidence that the other employees who were contending for the position were no more qualified or less qualified than she. In fact, the persuasive preponderant evidence established that the other two employees contending for the Accountant IV position were more qualified for the position than was the Petitioner. Further, the Petitioner did not prove that the position was filled with a member from a non-protected class. The record evidence is silent on that question.
Accordingly, the Petitioner failed to establish a prima facie case for non-promotion based upon racial discrimination.
Even assuming arguendo that the Petitioner had met her initial burden of establishing a prima facie case of promotional discrimination, the Department rebutted that presumption. Through the testimony of witness Arocho, the Petitioner's supervisor, and documentary evidence, the Department established, with persuasive, preponderant evidence that the Petitioner was denied promotion for merit and performance reasons which had nothing to do with her race (or the race of the promoted individual for that matter). The Department thus adequately showed a legitimate, non-discriminatory reason for the employment decision in question.
The McDonnell-Douglas-approved analysis, concerning the burden of going forward with evidence, then shifts the burden back to the Petitioner to show that the proffered reason, based upon merit and performance, was merely a pretext for what amounted to racial discrimination. Therefore, the Petitioner must demonstrate that the reason proffered by the employer is a pretext, because there really was intentional discrimination or racial animus in the promotion decision, in terms of whom to award it to, in order to sustain the Petitioner's claim in this case. Even if the rebuttal evidence offered by the Department,
as to why it made the promotional decision, were not believable, (which is not case) there could still be no finding of discrimination unless the Petitioner offered persuasive evidence of intentional discrimination, which she did not.
In summary, the Petitioner failed to establish a prima facie case of racial discrimination in the promotional decision the Department made. She failed to establish that the proffered reason the Department asserted for its employment decision was pretextual, and was instead a product of racial animus.
