STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAN M. TUVESON )
)
Petitioner, )
)
vs. ) CASE NO. 80-1175
) FLORIDA GOVERNOR'S COUNCIL ON ) INDIAN AFFAIRS, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on May 1, 1985. The Division of Administrative Hearings received the transcript of proceedings on June 21, 1985. On petitioner's agreed motion, time for filing proposed recommended orders was extended to August 12, 1985. The parties are represented by counsel:
For Petitioner: Sherry A. Spiers, Esquire
Douglass, Cooper & Coppins Post Office Box 1674 Tallahassee, Florida 32302
For Respondent: Arthur R. Wiedinger, Jr., Esquire
Assistant Attorney General The Capitol, Suite 1501 Tallahassee, Florida 32301
By letter dated September 20, 1978, petitioner's counsel requested that respondent "immediately reinstate Miss Tuveson to her former position, with full back pay" or, in the alternative, afford her "a hearing under the provisions of Florida Statutes Chapter 120." Respondent's executive director replied by letter dated October 5, 1978, denying both requests, the latter on the ground that the Florida Governor's Council on Indian Affairs (FGCIA) was a private nonprofit corporation, and not a state agency.
On October 30, 1978, petitioner filed a petition for administrative hearing directly with the Division of Administrative Hearings, but this was returned the following day with a letter stating that the "division has no authority to open cases [pursuant to Section 120.57(1)] unless requested to do so by the agency involved . . . the Florida Governor's Council on Indian Affairs, Inc." Thereafter, petitioner filed a formal petition for administrative hearing with FGCIA, which adhered to its view that it need not transmit the petition to the Division of Administrative Hearings.
Petitioner then brought suit in circuit court against FGCIA and obtained a judgment declaring FGCIA a state agency for purposes of the Administrative Procedure Act. Jan M. Tuveson v. Florida Governor's Council on Indian Affairs,
No. 79-55 (2d Cir.; September 5, 1979). FGCIA appealed, and the District Court of Appeal affirmed, holding that the FGCIA "is a state agency within the meaning of Section 112.041, Florida Statutes (1978 Supp.) and Chapter 120 . . . and is required to conform to the requirements of those statutes." Florida Governor's Council on Indian Affairs v. Tuveson, 384 So.2d 217, 218 (Fla. 1st DCA 1980).
On June 20, 1980, in keeping with the FGCIA transmitted the petition for administrative hearing to the Division of Administrative Hearings, which received the petition June 30, 1980. Final hearing was set for August 25, 1980, but petitioner filed a motion seeking an indefinite stay in order to "allow her to pursue her Equal Employment Opportunity Commission charge in federal district court." By order entered August 20, 1980, the motion for stay was granted, over objection.
Proceedings in the United States District Court for the Northern District of Florida eventuated in a substantial jury verdict ($124,500) in favor of Ms. Tuveson. Case No. TCA 80-973. On appeal, however, the United States Court of Appeals for the Eleventh Circuit reversed the judgment, finding FGCIA "to be the alter ego of the state and thus entitled to Eleventh Amendment immunity." Tuveson v. Florida Governor's Council on Indian Affairs, 734 F.2d 730, 731 (11th Cir. 1984). With the conclusion of proceedings on the merits in federal court, the present proceedings resumed.
ISSUE
Whether respondent FGCIA should reinstate petitioner as its director or acting director and give her back pay from August 31, 1978, because FGCIA terminated her employment as of that date on account of her race?
FINDINGS OF FACT
Jan Marie Tuveson, became the third person to go to work for the FGCIA, although she is not an Indian herself. In February of 1974, she began doing secretarial work and generally assisting Osley Saunooke and John L. Chaves, at the time the FGCIA's director and assistant director, respectively. With Mr. Saunooke's resignation later the same year and Mr. Chaves' resignation in May of 1975, all of the Council's staff work fell to Ms. Tuveson and a secretary whom she hired after consulting the cochairmen of FGCIA's Board of Directors.
CODIRECTOR
About four months after Mr. Chaves' departure, Ms. Tuveson assumed one of two newly created program coordinator positions. She was seen as "representing" the Miccosukee Tribe, while the other program coordinator, originally Steve Bowers, was seen as representing the Seminole Tribe. Together the program coordinators were to act as codirectors of the FGCIA. In September or October of 1975, Joe Billie succeeded Steve Bowers as codirector. An extremely likeable person, Joe Billie, a Seminole Indian for whom English is a second language, did not spend much time at FGCIA's Tallahassee headquarters.
As a result, Ms. Tuveson had almost full responsibility for the staff work of the FGCIA, after Joe Billie became codirector. During this period, she worked on behalf of and dealt with not only Buffalo Tiger and the Miccosukee Tribe, but also the Seminole Tribe, Mike Tiger, Joe Dan Osceola and other Seminole Indians. According to uncontroverted testimony, she treated the tribes "equally."
CETA PROGRAM DIRECTOR
Shortly after becoming program coordinator, Ms. Tuveson proposed to FGCIA's Board of Directors that FGCIA apply for funds under the Comprehensive Employment and Training Act (CETA). With Howard Tommie, chairman of the Seminole Tribe and cochairman of the FGCIA, dissenting, the Board approved the suggestion, Ms. Tuveson went forward with preparation of a grant application, and a CETA grant was awarded. Ms. Tuveson established and, as CETA program director, oversaw the program funded by the grant.
Mr. Tommie's objection to the proposal was that money which, at least in his view, might otherwise have been routed to the Seminole and Miccosukee tribes exclusively was not being administered by the tribes and was being made available to other American Indians, as well. Later Mike Tiger came to share this view as did Joe Billie, who had originally said a CETA grant would be a good idea. Mr. Tommie also felt that administration of a CETA grant would be "a hectic responsibility," Petitioner's Exhibit No. 12, p. 42, for FGCIA.
JOE BILLIE RESIGNS
At a special meeting of the Board of Directors on November 21, 1977, Joe Billie resigned his position with the FGCIA effective November 25, 1977. Expense account irregularities occasioned the resignation, but Howard Tommie resented Mr. Billie's leaving. According to the minutes of the special meeting:
The meeting was then directed to the discussion of the appointment of a new Codirector.
Howard Tommie ... felt there should not be a designated Codirector for the Miccosukees
or the Seminoles. Bob Travis agreed that each Codirector should be obligated to work for both Tribes. Howard Tommie stated the struc- ture should be changed to suit a state agency because of the fact that the Council now works with all Indians in the State of Florida, not just the Tribes.
Petitioner's Exhibit No. 2.
Other board members expressed other views, but the position Joe Billie left vacant was not filled, and a board member "directed the staff to prepare alternative organization structures and job descriptions." Petitioner's Exhibit No. 2.
REORGANIZATION
At its December 6, 1977, meeting, the FGCIA Board decided on organizing staff into an executive director, a deputy director, two program coordinators and a "Secretary III/Bookkeeper," Petitioner's Exhibit Nos. 4 and 5, but the positions were not filled at that time. Although "on the same level as the Deputy Director," the program coordinators were to report to the deputy director, as well as "to the tribes and [were to] be located at the Tribal headquarters most of the time." Petitioner's Exhibit No. 4.
On the subject of job descriptions, Joe Wilson, who "was present at the [November 25, 1977] meeting for the Department of Community Affairs as a representative of Mr. Robert Guttman instructed the staff . . . to add the
Indian preference in order not to discriminate." Petitioner's Exhibit No. 2. Among the policy changes effected at the December 6, 1977, meeting, was addition of a personnel policy in these words:
Preferential consideration will be given to federally recognized Native American appli- cants and/or those with experience in Native American programs.
Petitioner's Exhibit No. 4.
The Board did not adopt specific job descriptions for the positions decided upon at the December 6, 1977 meeting.
ACTING DIRECTOR
When the FGCIA Board met on June 23, 1978, it was generally acknowledged that Ms. Tuveson had been FGCIA's acting director for some time. Board member Robert Mitchell, for example, remarked, "Up to the present time you could say that Jan is the real Director, or Executive Director . . . ," Petitioner's Exhibit No. 7, and another board member thought it might be official: "I think we may have given Jan the title of Director. I don't remember." Petitioner's Exhibit No. 7. But, after further deliberations by the board, member Robert Travis' motion to "unhire" Jan as Director and place the [executive director's] position vacant and then Jan would apply for the position along with everybody else," Petitioner's Exhibit No. 7, carried. Later in the same meeting, according to the minutes,
Joe Dan Osceola directed the meeting to clarifying whether or not Jan Tuveson would remain as Acting Director for the Council until someone is hired permanently. Ms.
Tuveson stated that she would. Joe Dan Osceola made a motion to make Jan Tuveson Acting Director. Cochairman Tiger seconded the motion and it carried unanimously.
Although she had acted as FGCIA's director for almost two years and was officially named acting director when the board met on June 23, 1978, it was at this same meeting that Ms. Tuveson first began to fear for her continued employment.
Several members of the board expressed the view that FGCIA should hire staff, including CETA program staff, who were of American Indian extraction.
Ms. Tuveson herself remarked, during the meeting, "I think that is the intention of the personnel committee that any position that is vacated should be filled with a Native American . . ." Petitioner's Exhibit No. 7. Board member Joe Dan Osceola explained his position:
So I say with the Indian programs any Indian program which is designed for the Indians in the law states that it should be run as such, meaning Indians should be in that position.
The non Indians, no matter what color it is, there is going to be a time when you all are going to have to switch over to another job.
. . . So I believe in Indian movement, I mean
if we don't who is going to do it. It has to be the Indians who do it. So, I wish Jan was an Indian, really. Because she has done a good job. Petitioner's Exhibit No. 7.
Board member Jo Ann Jones stated, "Any program now in our area should be all Indians." Petitioner's Exhibit No. 7.
NATIVE AMERICAN DIRECTOR
At its next meeting the FGCIA Board of Directors chose Joe Allen Quetone as executive director of the FGCIA, and voted him a starting salary of
$20,000 per year. Mr. Quetone, who is a Native American and a member of the Kiowa tribe of Oklahoma, began as executive director on September 1, 1978, a week after his selection. He has held the position since, and nothing in the evidence suggests that he has done anything other than an exemplary job as executive director.
Beginning March 17, 1977, he had worked at FGCIA's headquarters in a CETA position for which Ms. Tuveson had recruited him. A 1973 graduate of Florida State University in philosophy, he began, but did not finish, some graduate public administration courses, before starting at FGCIA. He served as a noncommissioned officer in the U.S. Army, was a paid assistant to a student body president while in college, worked at a car wash and a pizza parlor, tended bar, worked at the Florida Construction Industry Licensing Board as a mail clerk; and, for the year and a half or two year period next preceding the move to FGCIA, worked for the Florida Human Relations Commission.
INDIAN PREFERENCE
The board went forward with the selection on August 25, 1978, despite the suggestions of Cochairman Mike Tiger and board member Robert Travis that the decision be put off. Cochairman Tiger reported Bob Mitchell's request for deferment, and Jim Hutchinson's request for a postponement, which was stated in a letter and related to the board in his absence, Petitioner's Exhibit No. 1, p. 91, also proved unavailing.
A three-member personnel committee had recommended Jan Tuveson, Joe Quetone and Henry A. Williams, Jr., as "highly qualified" to serve as Executive Director. Robert Travis reported on the personnel committee's work to the eight board members present, on August 25, 1978, and described the committee's criteria or "formula" as
basically the same thing we've always been talking about; one dealing with the educa- tional background of the person, experience factors, and an Indian preference. Those are the three, or at least the three major things that the committee considered.....
Petitioner's Exhibit No. 1, p. 94.
The board first voted to eliminate Mr. Williams from consideration, them voted to promote Joe Quetone to Executive Director.
The FGCIA board chose Mr. Quetone over Ms. Tuveson on the basis of their respective racial origins. Other factors may have entered in, as well.
Published reports of the possibility of a lawsuit on race discrimination grounds did not endear Ms. Tuveson to certain board members, see, e.g., Petitioner's Exhibit 1, p. 108-111; and Howard Tommie, among others, seemed still to harbor resentment over the establishment of the CETA program. At least one board member feared a schism between the Seminole and Miccosukee tribes. Mr. Travis remarked:
I think Jan kept the Council together. My preference is I would prefer to vote for her; but, if that vote will cause a split between the S[e]minoles and Miccosukees, and the organizations, the staff she is supposed to help, then my overall concern is for the Indian people.
Petitioner's Exhibit No. 1, p. 144.
Mr. Travis was one of six board members who voted for Mr. Quetone. Two members abstained. Joe Dan Osceola explained his position:
I'm not against white people, believe me; black, or anybody, even other Indians....
There's Indian programs--there's such a law as Indian Preference Law. There used to be a policy; but it's a law as of 1967....
I know a lot of you don't share my opinion.
...
Petitioner's Exhibit No. 1, p. 122.
Mr. Osceola may have been referring to an informal legal opinion which John Chaves, himself raised as an American Indian, had given as legal counsel to the FGCIA's CETA program, to the effect that the FGCIA could not lawfully implement an Indian preference. FGCIA had nevertheless adopted such a policy, although, over objection of the Seminole and some other board members, the phrase "and/or those with experience in Native American programs" had been added. (During the federal trial, Mr. Tommie testified that he did not think Ms. Tuveson had such experience. Petitioner's Exhibit No. 12, p. 52) At least one other board member adhered to the FGCIA's preference policy in the course of the selection process on August 25, 1978.
Petitioner's Exhibit No. 1, p. 135.
Ms. Tuveson testified that jokes about her race that various Seminole members of the FGCIA's board had made from time to time seemed much less amusing in retrospect, after the August 25, 1978 vote.
NO OFFER
After it was decided that Mr. Quetone would begin work on September 1, the Board began to turn to other matters, when an "Unidentified Female Voice" inquired:
Mr. Chairman? Before we start discussing the future business, do you think it's possible we could get some clarification as to Jan's termination date?
Petitioner's Exhibit No. 1, p. 176.
The cochairmen responded and Joe Dan Osceola expressed his views: COCHAIRMAN TIGER:
All right. They need that, too; otherwise, we'd have to do something, because--I mean, she's still on the payroll.
COCHAIRMAN TOMMIE:
I think one takes care of the other. Do you want to go on record as terminating Jan Tuve- son as our director? ...
Petitioner's Exhibit No. 1, p. 176. JOE DAN OSCEOLA:
... You have a certain day that when somebody has come in that you are supposed to move out of their office ... You clean out your table and desk and everything else because another guy is taking your place. I really can't see all this question on this.
Petitioner's Exhibit No. 1, p. 177.
After a confusing colloquy, Joe Dan Osceola raised the question whether Ms. Tuveson was "quitting the Council":
JO ANN JONES:
I know what you're saying. She's going to get the pay for those two weeks.
COCHAIRMAN TOMMIE:
Yes, if she wants to stay on the payroll for
an extra two weeks, then we've just got to make the provisions...
Petitioner's Exhibit No. 1, p. 180. COCHAIRMAN TIGER:
I think we understand where we stand.
...
JAN TUVESON:
Effective September 1st, I am on two weeks' notice; right?
CO-CHAIRMAN TIGER:
No.
Petitioner's Exhibit No. 1, p. 181. JOE DAN OSCEOLA:
Is she quitting the Council? That's one part I'm not familiar with, if she's quitting.
That's one thing I haven't heard from Jan, that she's not going to be (inaudible) for Miccosukee or (inaudible). That's one thing I don't know.
JAN TUVESON:
(Inaudible) I'm not (inaudible) coordinator right now, Joe, and I'm acting director.
JOE DAN OSCEOLA:
Yes, that's what I know. JAN TUVESON:
And I haven't been offered the position of coordinator, which would be ludicrous in my opinion, anyway, since it would be a backward step for me. But, the point is, I think, on September 1st, am I to be given two weeks' paid notice? Or am I not to be given any notice at all?
Petitioner's Exhibit No. 1, p. 183.
Neither the Board of Directors as a whole nor any individual board member offered Ms. Tuveson employment in any capacity beyond August 31, 1978.
EDUCATION AND EMPLOYMENT
A 1972 graduate of the University of Texas, with a major in English, Ms. Tuveson also attended Catholic University of America in Washington, D.C. as an undergraduate. After graduation, she worked as assistant manager and advertising director for "Hook'm Horns Night Club" in Austin, Texas. In Tallahassee, she worked as public relations assistant to the Sesquicentennial Committee and then for a department store, also in public relations; at Gayfer's, she had supervisory responsibilities, worked on a budget, and wrote copy for radio, television and newspapers, Petitioner's Exhibit No. 8, at a salary of $8,000 to $10,000 a year. She began taking graduate courses at Florida State University after she went to work for FGCIA, first in mass communications then in public administration, but did not earn a degree in either field.
After she left the employ of the FGCIA, Ms. Tuveson sent out 25 to 30 applications for jobs and had several interviews. In every interview the matter of her losing her job at the FGCIA arose. Receiving no job offers, she applied
to law school in October of 1978, and began in January of 1979. She graduated from law school at Western State University in June of 1981, finishing an accelerated program which left little time for gainful employment. She did not work the whole of the year 1982 partly because she was ill and partly because she took time off to study for a bar examination, which she has never succeeded in passing. She was employed in 1983 in the legal department of the Alamo Savings & Loan Association in San Antonio, Texas. In May of 1984 she moved back to Tallahassee and found work at Electronic Communications.
During 1977, the last full year Ms. Tuveson worked for FGCIA, she was paid $18,736.23. The following year FGCIA paid her $15,948.70 for the work she did from January 1, 1978 through August 31, 1978, representing an annual rate of
$21,264.93. Her 1979 income totalled $1,818.97. In 1980, Ms. Tuveson's income fell almost to nothing. She earned approximately $2,500 in 1981, and about the same in 1982. Her 1983 income was $10,832.38 and she made $11,526.87 in 1984. At the time of the hearing she was still working for Electronic Communications.
Petitioner's proposed recommended order and respondent's proposed findings of fact, conclusions of law and recommended order were filed on August
12 and 13 1985, respectively. Proposed findings of fact have been adopted, in substance, to the extent they are supported by the weight of the evidence, except where they are cumulative, subordinate or immaterial.
CONCLUSIONS OF LAW
With respect to employing and discharging its employees, FGCIA has wide, but not unfettered, discretion. Just as any other state agency with exempt employees, FGCIA has legal power to hire and fire at will, so long as it does not do so on constitutionally proscribed grounds, see William H. Gandy v. School Board of Santa Rosa County , No. 83-1575 (DOAH; R.O. September 27, 1983), or for reasons forbidden by law, including those set out in Sections 110.105 and 110.112, Florida Statutes (1983), and in the predecessor provisions codified as Section 112.041, Florida Statutes (1978 Supp.). The law in effect at the time petitioner lost her job provided:
No discrimination in state employment.--
It shall be against the public policy of this state for the governing body of any state agency, board commission, department or state officer, because of the race, color, sex, religious creed, or national origin of any individual to refuse to hire or employ, to bar or to discharge from employment such indi- viduals or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions, or privileges of employment, if the individual is the best able and most competent to perform the
services required.
Any individual claiming to be aggrieved by an alleged unlawful employment practice under this section may file a complaint with said agency, board, commission, department,
or state official, and said individual shall be entitled to a hearing and judicial review as provided in chapter 120.
Section 112.041, Florida Statutes (1978 Supp.)
That petitioner is entitled to formal administrative proceedings on her claim that FGCIA acted contrary to Section 112.041, Florida Statutes (1978 Supp.), is the law of the case, as laid down in Florida Governor's Council on Indian Affairs v. Tuveson, 384 So.2d 217 (Florida 1st DCA 1980). Although the statute speaks of "public policy" without flatly stating an absolute prohibition, the stated policy admits of no exception and the statute, read as a whole, amounts to an absolute prohibition.
Whether Ms. Tuveson can be said ever to have served as FGCIA's de facto executive director is not determinative, both because she was clearly serving only as acting director at the time she suffered race discrimination and because a person serving as the executive director of FGCIA enjoys no greater career service protection or other job security than a person serving as acting director.
This case differs from many race discrimination cases in the clarity of the evidence adduced in support of the claim. There is no need here for resort to shifting presumptions or statistical inference. In a mistaken and unjustified belief that they were within their legal rights, a majority of FGCIA's board deliberately and intentionally ousted Ms. Tuveson from the position she held with FGCIA almost entirely on account of her race. Members of the board said so. The evidence compels the conclusion that none of the factors offered at the hearing as justification after the fact played a significant part in the board's decision. Mr. Quetone has grown in the job as the board members hoped he would, but the evidence requires the conclusion that, at the time of her discharge, it was his supervisor, not he, who was "the best able and most competent to perform the services required." Section 112.041(1), Florida Statutes (1978 Supp.). Despite expert legal advice to the contrary, the FGCIA board acted on the erroneous assumption that federal statutes authorizing preferential hiring of Native American Indians by the federal Bureau of Indian Affairs and in certain other limited circumstances see Morton v. Mancari, 417
U.S. 535, 41 C.Ed.2d 290, 94 S.Co. 2474 (1974), had application in hiring for an agency of Florida state government.
There has never been any request to bifurcate these proceedings with one hearing on the question of "liability" and another on damages or relief. Petitioner adduced evidence on Ms. Tuveson's salary at FGCIA and her subsequent employment history. An argument might be made that she is entitled to back pay without any offsets, see Brummer v. State Unemployment Appeals Commission, 467 So.2d 1091 (Florida 3d DCA 1985), but petitioner seeks reinstatement and back pay to the date of reinstatement reduced by actual earnings between discharge and reinstatement. An argument might be made that Ms. Tuveson's decision to leave the job market and enter law school should operate to reduce the amount of back pay she is owed, but respondent has not contended that back pay should be reduced in any amount, if owed. Respondent denied discrimination, but its approach to the question of back pay was a struthious one.
On August 31, 1985, seven years will have elapsed since petitioner lost her job. In seven years, an annual salary of $21,264.93 amounts to
$148,854.51. On the theory petitioner' herself espouses, back pay should be reduced, on this record, by $29,178.22 plus her 1985 earnings.
It is, accordingly, RECOMMENDED
That the FGCIA reinstate petitioner as acting executive director and pay her $119,676.29 less her earnings from January 1, 1985, to the date of reinstatement, together with back pay accruing at an annual rate of $21,264.93 from September 1, 1985, to the date of reinstatement.
DONE and ENTERED this 23d day of August, 1985, in Tallahassee, Florida.
ROBERT T. BENTON II
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23d day of August, 1985.
COPIES FURNISHED:
Sherry A. Spiers, Esquire Douglass, Cooper & Coppins Post Office Box 1674 Tallahassee, Florida 32302
Arthur R. Wiedinger, Jr., Esquire Assistant Attorney General
The Capitol, Suite 1501 Tallahassee, Florida 32301
Joe Quetone, Executive Director Governor's Council on Indian Affairs
521 East College Avenue Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
FLORIDA GOVERNOR'S COUNCIL ON INDIAN AFFAIRS, INC.
JAN M. TUVESON,
Petitioner,
vs. DOAH CASE NO. 80-1175
FLORIDA GOVERNOR'S COUNCIL ON INDIAN AFFAIRS, INC.,
Respondent.
/
FINAL ORDER
This cause came before the Florida Governor's Council on Indian Affairs (FGCIA) for consideration of a Recommended Order entered on August 23, 1985, at a meeting of the Council on October 24, 1985, at the Miccosukee Reservation in Dade County, Florida. The FGCIA has reviewed the complete record and, based upon this review, orders as follows:
FINDINGS OF FACT
The following portion of the Findings of Fact on page 8 of the Recommended Order is rejected: "The FGCIA board chose Mr. Quetone over Ms. Tuveson on the basis of their respective racial origins. Other factors may have entered in, as well."
REASON: These proposed findings of fact are not based upon the competent substantial evidence in the record which proves otherwise. It is clear that Mr. Quetone's race was considered by some members of the board; however, the record is also clear that most members had entirely different reasons for preferring Mr. Quetone over Ms. Tuveson. In fact, the Recommended Order correctly goes on to identify some of the other members and gives their different reasons for choosing Mr. Quetone:
Howard Tommie, among others, seemed still to harbor resentment over the establishment of the CETA program. At least one board member feared a schism between the Seminole and Miccosukee tribes. Mr. Travis remarked:
"I think Jan kept the Council together. My preference is I would prefer to vote for her; but, if that vote will cause a split between the S[e]minoles and Miccosukees, and the organizations, the staff she is supposed to help, then my overall concern is for the Indian people."
Petitioner's Exhibit No. 1, p. 44.
Recommended Order, p. 8.
Also the Recommended Order correctly notes that two of the eight board members abstained, and that, of the six voting, only Joe Dan Osceola clearly relied upon the "Indian preference" policy. One other may have considered Mr. Quetone's native American status as the record indicates; however, the record is clear that race was not the only factor considered by a majority of the board, and the above-excepted finding of fact is rejected accordingly.
The following portion of the Findings of Fact on page 11 of the Recommended Order is rejected: "Neither the Board of Directors as a whole nor any individual board member offered Ms. Tuveson employment in any capacity, beyond August 31, 1978."
REASON: This proposed finding of fact is not based upon the complete competent substantial evidence in the record, and is highly misleading. The record is clear that at least one member of the board thought Ms. Tuveson would automatically remain as one of the two cocoordinators on the staff, but that Ms. Tuveson herself rejected that option:
JOE DAN OSCEOLA:
Is she quitting the Council? That's one part I'm not familiar with, if she's quitting.
That's one thing I haven't heard from Jan, that she's not going to be (inaudible) for Miccosukee or (inaudible). That's one thing I don't know.
JAN TUVESON:
(Inaudible) I'm not (inaudible) coordinator right now, Joe, and I'm acting director.
JOE DAN OSCEOLA:
Yes, that's what I know. JAN TUVESON:
And I haven't been offered the position of coordinator, which would be ludicrous in my opinion, anyway, since it would be a backward step for me. But, the point is, I think, on September 1st, am I to be given two weeks' paid notice? Or am I not to be given any notice at all?
Petitioner's Exhibit No. 1, p. 183.
Recommended Order, pp. 10-11.
CONCLUSIONS OF LAW
The following portion of the Conclusions of Law on page 13 of the Recommended Order is rejected: "Although the statute speaks of `public policy' without flatly stating an absolute prohibition, the stated policy admits of no exception and the statute, read as a whole, amounts to an absolute prohibition."
REASON: The statute relied upon by Petitioner, s. 112.041, Fla.Stat. (Supp. 1978.), now repealed, clearly contained an exception on its face, in that it applied only "if the individual is the best able and most competent to perform the services required." See, s. 112.041(1), Fla.Stat. (Supp. 978). There is no such finding of fact in the Recommended Order, as to Jan Tuveson being the best applicant.
More importantly, the statute relied upon, was a mere statement of public policy, and did not prohibit anything; nor did the statute authorize any remedy or relief beyond entitlement to "a hearing and judicial review as provided in Chapter 120." See, s. 112.041(2), Fla.Stat. (Supp. 1978). The remedies sought by Petitioner were and still are governed by the Human Rights Act of 1977, Chapter 77-341, Laws of Florida, as amended, presently codified at Chapter 760 (formerly ss. 23.23 et seq., and earlier ss. 13.201 et seq.). The latter statute must be read in conjunction with the repealed policy statute, especially in alleged discrimination cases, because s. 112.041 authorized no relief whatsoever, in and of itself.
The Recommended Order correctly notes that s. 110.112, Fla.Stat. (1983), also has some application to these issues; however, the statutory force of s. 110.112, Fla.Stat. (1983) clearly undercuts Petitioner's position, since that law requires all state agencies to develop and implement affirmative action programs, to the benefit of minorities including Indians. And, s. 110.112, unlike s. 110.105, (the new "policy" statute), now specifically incorporates the Human Rights Act of 1977, as the proper remedy. Therefore, since Petitioner's only statutory remedies are those contained in the Human Rights Act of 1977, Petitioner is entitled to no relief from the FGCIA, under the repealed statute relied upon.
The following portion of the Conclusions of Law on page 14 of the Recommended Order is rejected: "This case differs from many race discrimination cases in the clarity of the evidence adduced in support of the claim. There is no need here for resort to shifting presumptions or statistical inference."
REASON: Neither the Petitioner nor the Recommended Order has cited any authority for ignoring the strict requirements regarding proof of a prima facie case and all other burdens of proof necessarily borne by Petitioner in this alleged race discrimination case. In order to prove her case, Petitioner is required to prove by a preponderance of the evidence all elements of her prima facie case; if she succeeds in doing so, the FGCIA need only make a simple showing of other "legitimate nondiscriminatory reasons" for the action taken, after which the burden remains upon Petitioner to prove by a preponderance of the evidence that all of the reasons advanced by FGCIA are not the real reasons, but are merely pretextual, and further must prove that the real reason she was not selected for the job was intentional discrimination based upon her race on the part of FGCIA. See, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Texas Department of Community , Affairs v. Burdine, 450 U.S. 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Clark v. Huntsville City Board of Education, 717 F.2 525, at 529 (11th Cir. 1983); U.S. Postal Service v. Aikens, 460 U.S. 711, 103 S.Ct. 1478,1481-82, 75 L.Ed.2d 403, 409-410 (1983); Nix v. WLCY Radio, 738 F.2d 1181 (11th Cir. 1984).
Therefore, the legal conclusion that these administrative proceedings need not follow the law is incorrect and unsupported by any authority, and is rejected.
The following portion of Conclusions of Law on page 14 of the Recommended Order is rejected: "In a mistaken and unjustified belief that they were within their legal rights, a majority of FGCIA's Board deliberately and intentionally ousted Ms. Tuveson from the position she held with FGCIA almost entirely on account off hear race."
REASON: To the extent this statement is a conclusion of fact, it is stricken from the Conclusions of Law. To the extent that it is a Conclusion of Law, it is rejected as unsupported by the competent substantial evidence proving otherwise, as shown above in paragraph 1.
First, the evidence clearly shows that the majority of the voting board members relied on several other legitimate nondiscriminatory reasons for not hiring Ms. Tuveson. See, Recommended Order, pp 8-9. Secondly, there has been no authority cited by Petitioner or in the Recommended Order to support the mere assumption that any board member had acted "in a mistaken and unjustified belief that they were within their legal rights" by considering the factor of race in their action. The Recommended Order merely presumes that any preference given to Mr. Quetone by any member of the board was illegal per se. This presumption is incorrect as a matter of Florida and Federal law. See, s. 110.112, Fla.Stat.; also see Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974).
Secondly, there is no competent substantial evidence proving that any of the several other reasons given by the majority of the board were pretextual, nor is there any such evidence proving that a majority of the board "deliberately and intentionally ousted Ms. Tuveson" on account of her race. Accordingly, that entire Conclusion of Law is rejected.
The following portion of the Conclusions of Law on page 14 of the Recommended Order is rejected: "The evidence compels the conclusion that none of the factors offered at the hearing as justification after the fact played a significant part in the board's decision."
REASON: To the extent that this statement is a finding of fact, it is stricken from the Conclusions of Law. To the extent that the statement is a Conclusion of Law, it is incorrect, and is not supported by the competent substantial evidence which proves otherwise.
Petitioner has made no showing that any of the legitimate, nondiscriminatory reasons advanced by the majority of the board were pretextual. FGCIA does not have the burden of proof, as assumed by this incorrect conclusion; it is Petitioner who must prove by a preponderance of the evidence that all the reasons `offered are pretext for racial discrimination. Since she has failed to do so, this conclusion of law is incorrect and is rejected. See, authorities cited in paragraph 4 above.
The following portion of the Conclusions of Law on page 14 of the Recommended Order is rejected: ". . . the evidence requires the conclusion that, at the time of her discharge, it was his (Quetone's) supervisor, not he, who was "the best able and most competent to perform the services required."
REASON: To the extent that this statement is a finding of fact, it is stricken from the Conclusions of Law. To the extent that the statement is a Conclusion of Law, it is incorrect, and is not supported by the competent substantial evidence proving otherwise.
It is the proper duty of the employer, FGCIA, to decide which applicant is best qualified, not the hearing officer. In this case, the evidence at best shows a "dead heat" between Mr. Quetone and Ms. Tuveson, based upon their respective educational and experience backgrounds. Compare, Recommended Order, pp. 7 and 11 (qualifications of Quetone and Tuveson, respectively). The Recommended Order does not establish that Ms. Tuveson was the "best able and most competent" between the two; indeed, the undisputed CETA management problems existing between some members of the board and Ms. Tuveson, as well as the schism feared between the tribes because of her appointment, are additional evidence supporting the appointment of Mr. Quetone as the better of the two. The Recommended Order also ignores the undisputed evidence that Mr. Quetone had substantial experience working with the Florida Legislature and other governmental agencies, where Ms. Tuveson did not. See, Petitioner's Exhibit #1, at pp. 119-120, 129-131, and 142-144. Accordingly, this Conclusion of Law is rejected.
The following portion of the Conclusion of Law on page 14 is rejected: "Despite expert legal advice to the contrary, the FGCIA board acted on the erroneous assumption that federal statutes authorizing preferential hiring of Native American Indians by the federal Bureau of Indian Affairs and in certain other limited circumstances see Morton v. Mancari, 417 U.S. 535, 41 L.Ed.2d 290,
94 S.Ct. 2474 (1974), had application in hiring for an agency of Florida state government."
REASON: To the extent that this statement is a finding of fact it is stricken from the Conclusion of Law. To the extent that it is a Conclusion of Law, it is incorrect and unsupported by any authority, and is rejected.
The Recommended Order cites no State or Federal authority whatsoever, in support of the assumption that an "Indian preference" policy is illegal per se. Nor is there competent substantial evidence in the record proving that any more than two board members even considered the preference when the full board acted. Again, the Recommended Order merely presumes that any preference given to Mr. Quetone by some members of the board was illegal per se. This unsupported presumption is incorrect as a matter of Florida and federal law.
Section 110.112, Fla.Stat., requires all state agencies to undertake affirmative action programs, to the positive benefit of minorities, including Indians. In other words, when given a choice between two equally qualified applicants Florida law would require the FGCIA to select an Indian applicant (or other minority). Under federal law the same result would obtain. In fact, under federal law Indians have been singled out and treated very differently than all other minorities, to their benefit.
In 1934 Congress enacted Section 12 of the Indian Reorganization Act,
48 Stat. 986, 25 U.S.C. s. 472, allowing Indians to be given exemptions from civil service exams and preference for civil service jobs. In 1972, the Commissioner of Indian Affairs by rule extended the statutory Indian hiring preference to all promotions sought by Indians in the Bureau of Indian Affairs. Several non-Indians sued the Secretary of the Interior, under Title VII of the Civil Rights Act of 1964. Morton v. Mancari, 417 U.S. 535, 41 L.Ed.2d 290, 94 S.Ct. 2474 (1974). The Indians won.
The Supreme Court first noted that Title VII expressly exempted the B.I.A.'s Indian preference from coverage under the Civil Rights Act. Morton, 41 L.Ed.2d at 298. But more importantly, the Supreme Court held that, in some
employment related situations, Indians may be treated differently than all other minorities, because they are different:
[9] We still must decide whether, as the appellees contend, the preference constitutes invidious racial discrimination in violation of the Due Process Clause of the Fifth Amend- ment. Bolling v. Sharpe, 347 US 497, 98 L.Ed. 884, 74 S.Ct. 693 (1954). The District Court, while pretermitting this issue, said, "[W]e could well hold that the statute must fail on constitutional grounds." 359 F.Supp., at 591.
Resolution of the instant issue turns on the unique legal status of Indian tribes under federal law and upon the plenary power of Congress, based on a history of treaties and the assumption of a "guardianward" status, to legislate on behalf of federally recognized Indian tribes. The plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself. Article I, s. 8, cl 3, provides Congress with the power to regu- late Commerce . . . with the Indian Tribes," and thus, to this extent, singles Indians out as a proper subject for separate legislation. Article II, s. 2, cl 2, gives the President the power, by and with the advice and con sent of the Senate, to make treaties. This has often been the source of the Government's power to deal with the Indian tribes. The Court has described the origin and nature of the special relationship:
"In the exercise of the war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people, needing protection against the selfishness of others and their own improvidence. Of necessity, the United States assumed the duty of furnishing that protection, and with it the authority to do all that was required to perform that obliga- tion and to prepare the Indians to take their place as independent, qualified members of the modern body politic. . . ." Board of County Comm'rs v. Seber, 318 US 705, 715, 87 L.Ed.
1094, 63 S.Ct. 920 (1943).
See also United States v. Kagma, 118 US 375, 383-384, 30 L.Ed. 228, 6 S.Ct. 1109 (1886)
Literally every piece of legislation dealing with Indian tribes and reservations, and cer- tainly all legislation dealing with the BIA,
single out for special treatment a consti- tuency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 USC) [25 USCS] would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized. See Simmons v. Eagle Seelatsee, 244 F.Supp. 808, 814, n 13
(ED Wash 1965), affd, 384 US 209, 16 L.Ed.
480, 86 S.Ct. 1459 (1966).
It is in this historical and legal context that the constitutional validity of the Indian preference is to be determined. As discussed above, Congress in 1934 determined that proper fulfillment of its trust required turning over to the Indians a greater control of their own destinies. The overly pater- nalistic approach of prior years had proved both exploitative and destructive of Indian interests. Congress was united in the belief that institutional changes were required. An important part of the Indian Reorganization Act was the preference provision here at issue.
Contrary to the characterization made by appellees, this preference does not consti- tute "racial discrimination." Indeed, it
is not even a "racial" preference. (Footnote omitted) Rather, it is an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its consti- tuent groups. It is directed to participa- tion by the governed in the governing agency. The preference is similar in kind to the constitutional requirement that a United States Senator, where elected, be "an Inhabitant of that State for which he shall
be chosen," Article, s. 3, cl 3, or that a member of a city counsel reside within the city governed by the council. Congress has sought only to enable the BIA to draw more heavily from among the constituent or up in staffing its projects, all of which, either directly or indirectly, affect the lives of tribal Indian. The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion. See n. 24, supra. In the sense that there is no other group of people
favored in this manner, the legal status of the BIA is truly sui generis. (Footnote omitted). Furthermore, the preference applies only to employment in the Indian service. The preference does not cover any other Government agency or activity, and we
need not consider the obviously more difficult question that would be presented by a blanket exemption for Indians from all civil service examinations. Here, the preference is reasonably and directly related to a legitimate, nonracially based goal. This is the principal characteristic that generally
is absent from proscribed forms of racial discrimination.
On numerous occasions this Court specifically has upheld legislation that singles out Indians for particular and special treatment. (citations omitted). As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed. Here, where the preference is reason able and rationally designed to further Indian self-government, we cannot say that Congress' classification violates due process.
The judgment of the District Court is reversed and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
Morton v. Mancari, 41 L.Ed.2d, 301-303. (Emphasis supplied).
To the extent that the Florida Governor's Council on Indian Affairs has as its purpose "to further the cause of Indian self-government and to make the (Council) more responsive to the needs of its constituent groups", and is "directed to participation by the governed in the governing agency", Florida's laws should find no fault in the Council's Indian preference policy, which is substantially less restrictive than the Federal preference. In fact, Ms. Tuveson herself assisted the FGCIA in drafting the preference, to allow non- Indians having experience in Indian affairs to benefit from the same preference she now attacks.
Neither the Petitioner nor the Recommended Order cites any authority whatsoever upon which to base the assumption that he FGCIA's Indian preference policy is illegal. It certainly is not illegal under federal law, and Florida law, although silent on the matter, requires the FGCIA to implement an affirmative action policy for the benefit of minorities including Indians, which is what the preference does.
That portion of the Conclusions of Law on pages 14 and 15 which purport to establish the dollar amount due Ms. Tuveson in net back pay lost over the seven year period is rejected in toto.
REASON: Ms. Tuveson herself, with advice of counsel, chose to continue this administrative proceeding in August, 1980, in favor of seeking relief in Federal Court. Accordingly, the four years of back pay lost by that erroneous choice should not be included in any calculation. Likewise, as the record clearly shows, Ms. Tuveson was only unemployed one month, applying to law school (again, by choice), in October, 1978. Recommended Order, p. 11. And, she remained out of the work force (by choice) all during law school and a full year beyond. Recommended Order, p. 12. Accordingly, any calculation of back pay should exclude all the time Ms. Tuveson spent pursuing her federal claims, and all other time spent not working or actively seeking full time employment; therefore, the Conclusion of Law is incorrect, and is rejected.
. That portion of the Conclusions of Law on page 15 recommending reinstatement to the position of "acting executive director", and any award of back pay for Ms. Tuveson, is rejected in toto.
REASON: Neither Petitioner nor the Recommended Order cites any authority upon which the FGCIA could grant the relief recommended.
First, there is no such position at FGCIA. The only comparable position is held by Mr. Quetone, and any such action would result in his termination. The FGCIA has no legal authority to terminate Mr. Quetone solely for the purpose of rehiring Ms. Tuveson to replace him. Such an action would invite litigation.
Secondly, the FGCIA has no legal authority to authorize any expenditure of state funds to hire Ms. Tuveson absent a vacancy, nor to pay any back pay award to her. Florida is immune from this suit, unless authorized by law. See, Article X, Section 13, Florida Constitution. Chapter 760, Fla.Stat., indeed authorizes similar suits against the State, but expressly excludes FGCIA from coverage by reason of FGCIA having fewer than 15 employees. See, s. 760.01(6), Fla.Stat. (1983), formerly s. 23.161(6), Fla.Stat. (1977). There being no other applicable statutory waiver of Florida's sovereign immunity, no relief is possible.
ACCORDINGLY:
The Findings of Fact herein excepted are rejected.
All other Findings of Fact not excepted are adopted.
The Conclusions of Law herein excepted are rejected.
The following Conclusions of Law are hereby adopted and incorporated into the Final Order:
The statute relied upon by Petitioner, s. 112.041, Fla.Stat. (Supp. 1978 was repealed in 1979. It also clearly contained an exception on its face, in that it applied only "if the individual is the best able and most competent to perform the services required." See, s. 112.041(1), Fla.Stat. (Supp. 1978). There is no such Finding of Fact in the Recommended Order, as to Jan Tuveson.
The statute relied upon by Petitioner, being a policy statement, did not prohibit anything; nor did the statute authorize any remedy or relief beyond entitlement to "a hearing and judicial review as provided in Chapter 120." See,
112.041(2), Fla.Stat. (Supp. 1978). The remedies sought by Petitioner were
and are governed by the Human Rights Act of 1977, Chapter 77-341, Laws of Florida, as amended, presently codified at Chapter 760 (formerly ss. 23.161 et seq., and earlier ss. 13.201 et seq.). The latter statute must be read in conjunction with the repealed policy statement, especially in alleged discrimination cases, because s. 112.041 authorized no relief whatsoever, in and of itself, and has been repealed.
Petitioner is required by law to prove by a preponderance of the evidence that she was a victim of intentional racial discrimination on the part of the FGCIA itself.
Petitioner has failed to prove all elements of her prima facie case, in that she has not shown by a preponderance of the evidence that she is a member of some protected class, or that she was better qualified for the position than the person selected.
FGCIA has met its simple burden of advancing several legitimate nondiscriminatory reasons for its action. Petitioner has failed to show by a preponderance of the evidence that the reasons advanced were pretextual, and has failed to show that the real reason she was not selected by the full board was because of her race.
Petitioner has made no showing nor cited any authority to show that the Indian preference policy is illegal as applied to the staff of the FGCIA. Since the policy does not preclude non-Indians from being considered or selected for employment or promotion, the policy is legal as a matter of federal law insofar as the purposes of the FGCIA coincide with the purposes of the Federal Bureau of Indian Affairs. Morton v. Mancari, 417 U.S. 538, 41 L.Rd.2d 290, 94 S.Ct. 2474 (1974).
Petitioner has made no showing nor cited any authority to show that the Indian preference policy is illegal under Florida law. Florida law requires FGCIA to rake affirmative action for the benefit of all minorities including Indians, pursuant to s. 110.112, Fla.Stat.
Petitioner is not entitled to any award of back pay for any period of time spent pursuing these claims in federal court. Nor is Petitioner entitled to any award of back pay for any period of time she was by her own choice not seeking or unavailable for full time employment.
Petitioner has cited no legal basis or authority by which the FGCIA could lawfully grant any award of back pay to her, nor does the Recommended Order cite any such authority. Absent such authority, the FGCIA cannot award Petitioner any back pay.
Petitioner has cited no legal basis or authority by which the FGCIA could lawfully terminate Mr. Quetone solely for the purpose of rehiring Ms. Tuveson in his place. FGCIA has no such authority to "reinstate" Petitioner, absent a vacancy.
Florida and all agencies thereof are immune from this suit, unless authorized by Florida or federal law. Florida has been found immune from suit by Tuveson under federal law, and FGCIA is likewise immune. See, Tuveson v. Fla. Gov. Council on Indian Affairs, 734 F.2d 730 (11th Cir. 1984). That finding is res judicata to this case.
Pursuant to Article X, Section 13, Florida Constitution, the Legislature has provided for same suits claiming race discrimination no be brought against state agencies. Human Rights Act of 1977, as amended, now codified at Chapter 760, Fla.Stat. (1983). Petitioner's right and remedies, if any, are found in that Act only.
Pursuant to s. 760.01(6), Fla.Stat., the FGCIA was exempt from coverage of the Human Right Act of 1977 at the time Petitioner's claim arose. Accordingly, Florida and the FGCIA remain immune from this cause of action as a matter of Florida law.
All other Conclusions of Law contained in the Recommended Order which conflict with those adopted hereby are rejected.
Petitioner is entitled to no relief whatsoever. Accordingly, her claim for back pay and reinstatement is denied.
DONE AND ENTERED this 24th day of October, 1985, in Dade County, Florida.
Secretary
Florida Governor's Council on Indian Affairs
| Issue Date | Proceedings |
|---|---|
| Aug. 27, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 24, 1985 | Agency Final Order | |
| Aug. 27, 1985 | Recommended Order | As state agency, Governor's Council on Indian Affairs could not lawfully discriminate against non-Indians. |
