STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH F. FRIEDMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2192

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on September 27, 1984, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph F. Friedman, pro se

3679 East Citrus Trace Davie, Florida 33328

For Respondent: Carolyn Davis, Esquire

2562 Executive Center Circle, East Suite 117-Montgomery Building Tallahassee, Florida 32301

BACKGROUND

On August 23, 1983, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations, alleging that Respondent had committed an unlawful employment practice by failing or refusing to hire Petitioner because of his age, in violation of Section 760.10, Florida Statutes. On May 11, 1984, the Florida Commission on Human Relations rendered its proposed notice of determination that there was no reasonable cause to believe that an unlawful employment practice had occurred. By Petition for Relief filed with the Division of Administrative Hearings on June 18, 1984, Petitioner requested an administrative hearing on his charge of age-based discrimination against Respondent, State of Florida, Department of Labor and Employment Security.

At the final hearing Petitioner testified on his own behalf and called Herbert G. Parker, Bureau Chief-Bureau of Crimes Compensation, Department of Labor and Employment Security, as a witness. Petitioner offered Exhibits 1 through 4 and 6 through 9, which were received into evidence. Respondent called Herbert G. Parker and Sylvia Chapman, an investigator with the Florida Commission on Human Relations, as witnesses. Respondent offered Exhibits 1 through 4, which were received into evidence.

Both parties have submitted proposed findings of fact and conclusions of law. The parties' proposed findings and conclusions, unless expressly set out in the findings of fact which follow, are specifically rejected as not supported by the evidence of record, contrary to the better weight of the evidence, irrelevant to the issues presented for determination, or legally erroneous.

FINDINGS OF FACT

1. Petitioner, Joseph F. Friedman, was born January 17, 1926, and was, at the time of final hearing, 58 years of age. In 1980 Petitioner noticed an advertisement for the position of Crimes Compensation Field Representative with the Respondent's Bureau of Crimes Compensation. At that time Petitioner registered with the Department of Administration (DOA) and was certified as eligible by DOA to fill the position. Although certified by DOA, Petitioner did not file a State of Florida Employment Application with Respondent, or take any other action which would have affirmatively apprised Respondent of his interest in any employment position.

   
   

2. In 1982 Petitioner again saw an advertisement for the position of Crimes Compensation Field Representative and this time filed a completed State of Florida Employment Application with Respondent on April 23, 1982. By letter dated May 11, 1982, Respondent's Chief of the Bureau of Crimes Compensation, Herbert G. Parker, advised Petitioner that his ". . . application would be retained on file for reference should a vacancy occur in the immediate future. (Emphasis added.)

   
   

3. Respondent's personnel manual (Respondent's Exhibit 3) provides in Section 1-A-4A(5):

   
   

   To ensure department wide consistency in accepting applications for vacant positions, the guidelines listed will be followed as positions are advertised

   and certificates of eligibles are worked.

   1. In order to be considered as an applicant and to be considered for appointment, persons must file a properly completed and signed appli- cation for the position applied for.

   2. A person who expresses interest in a position but does not file a formal application is not considered an applicant.

   3. Persons who have filed an application for a position within an office previ- ously may have their application reactivated by the office at the option

      of the office manager or at the specific request of the applicant.

      (f) Offices will retain the applications of all applicants for positions for

      two years following the filling of a position.

      
      

4. Although Respondent's policy requires that applications be retained for

   two years following the filling of a position, there is no agency policy which requires that they be considered for any future vacancies. Petitioner neither reapplied nor requested that his original application he held in the active file for future consideration.

   
   

5. Notwithstanding the absence of a formal agency-wide policy, Mr. Parker has established a policy in his bureau that applications on file will be considered if a vacancy occurs within six months after that application had been previously considered. This six-month period is the "immediate future" referenced in his letter to Mr. Friedman of May 11, 1982.

   
   

6. In early 1983 Petitioner noticed an advertisement for an opening for a Crimes Compensation Field Representative in Respondent's office. Petitioner did not formally apply for this position but, rather, engaged the services of an attorney to see why he had not been contacted regarding this vacancy. As a consequence of that contact, Respondent advised Petitioner's counsel that:

. . . It is the Rule of the Department

of Administration that non-state employees are purged from the list of eligibles every six months. In this case, Mr.

Friedman should have asked for recertifi- cation in order to maintain his eligibility for consideration for the position in question.

Respondent also advised Petitioner's counsel that Petitioner would be contacted for an interview for the current opening of Crimes Compensation Field Representative and, if found to be the most qualified, would be offered the position.

1. Petitioner was in fact contacted and interviewed by Mr. Parker, along with ten other applicants. Among the applicants interviewed were three who were above 50 years of age, three who were above 40, one who was over 30, and four who were in their 20s. Ms. Sally Heyman, age 28 at the time, was selected to fill the position. Petitioner was advised by letter dated March 10, 1983, that he had not been selected.

   
   

2. Mr. Parker evaluated the respective qualifications of Ms. Heyman and Petitioner. He found Petitioner qualified but felt Ms. Heyman's qualifications were exceptional and that she was clearly the better-qualified applicant. An examination of Ms. Heyman's credentials, as evidenced by her application and resume, reflects that in addition to considerable experience in the specific field of victim assistance, she also held a bachelor's degree in criminal justice, a master's degree in criminal justice, and was certified in crimes prevention. Mr. Friedman on the other hand held a bachelor's degree in social sciences (education) and his prior work experience had been as a detective for the New York City Police Department (retired) and as an investigator for Calder Race Course and security director for Gulf Stream Race Course. The respective credentials of Ms. Heyman and Petitioner demonstrate that Ms. Heyman was the better-qualified applicant. Further, Mr. Parker had reservations concerning Petitioner's ability to work closely with crimes compensation victims. The work of a Crimes Compensation Field Representative requires a caring, compassionate person who can empathize with the crime victim and establish a rapport which will engender a feeling of confidence that "This person can help me." Victims of crime are not only brutalized by the crime itself but are often emotionally battered by the Criminal Justice System. Consequently, a Crimes Compensation

   Field Representative must be capable of exhibiting the care and empathy essential to aid the victims of crime. Mr. Parker's reservations concerning Petitioner's ability to fulfill this criteria, though subjective, are clearly pertinent, job-related, and not discriminatory.

   
   

3. On August 23, 1983, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations, in which he alleged that he was not employed for the March, 1983, vacancy because of his age, and that Respondent had a policy of discrimination because of age.

   
   

4. Subsequent to the filing of Petitioner's charge of discrimination, two additional positions were filled which Petitioner asserts substantiate his claim that Respondent had a policy of discrimination because of age. The first position was for an opening in the Respondent's Miami field office and was filled by Ms. Carol Springer, age 28, in September, 1983. Ms. Springer was an employee of Respondent in its Tallahassee office at the time in question, and previously had requested a transfer to Miami. Under Respondent's employee policies, current employees are entitled to first consideration when vacancies occur in an area to which they desire to be transferred. The second position, the vacancy created in the Tallahassee office by Ms. Springer's transfer to the Miami field office, was filled by Ms. Barbara Bobo, age 32, in September, 1983. Ms. Bobo's application and resume reflect considerable experience working with child abuse victims, the emotionally and financially disadvantaged, the mentally retarded, the elderly, and the disabled. She also held a Bachelor of Arts degree in special education. Petitioner did not submit an application for either of these positions or otherwise apprise the Respondent of his interest. Therefore, Petitioner was not contacted or considered for either vacancy.

   
   

5. The current staffing pattern of Respondent's Bureau of Crimes Compensation reveals that a total of 16 persons are employed, including Mr. Parker. Of that number, 33 percent are over the age of 40, including two over the age of 50 years-- Mr. Parker, age 55, and one George Peters, age 57, a Crimes Compensation Field Representative.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. The allegations in this case are that Petitioner was subjected to unlawful discriminatory practices because of his age in violation of Section 760.10(1)(a), Florida Statutes. Section 760.10(1)(a), Florida Statutes, provides:

   
   

   1. It is an unlawful employment practice for an employer:

      1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to com- pensation, terms, conditions, or privileges of employment, because of such individual's race, color,

religion, sex, national origin, age, handicap, or marital status.

13 In an employment discrimination case the principles of Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1009, 67 L.Ed.2d 207 (1901) apply. In Burdine the issue of disparate treatment is separated into three inquiries of ever-increasing specificity. At the threshold level, a petitioner alleging disparate treatment must establish by a preponderance of the evidence the elements of a prima facie case. To rebut the resulting presumption of unlawful discrimination, respondent is required to articulate some legitimate, nondiscriminatory reason for the applicant's rejection. If the respondent succeeds, the petitioner must convince the court by a preponderance of the evidence that the respondent's explanation for its adverse employment action is merely a pretext for discrimination.

1. At final hearing, Petitioner established that he was 57 years of age in March, 1983, that he applied for and was qualified for the position of Crimes Compensation Field Representative, that he was not selected for employment, and that another applicant, age 28 at the time in question, was selected to fill the position. Consequently, Petitioner established a prima facie case of unlawful discrimination with respect to the March, 1983, vacancy. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Respondent successfully rebutted the resulting presumption through evidence that it selected Ms. Heyman due to her superior qualifications for the position. Petitioner failed to produce any credible evidence that the Respondent's explanation for selecting Ms. Heyman was pretexual.

   
   

2. With respect to the two positions filled in September, 1983, Petitioner failed to establish a prima facie case, since he failed to establish that he applied for the positions. Even assuming the evidence presented were deemed sufficient to establish a prima facie case, Respondent successfully rebutted any prima facie showing through evidence that an existing employee filled one position by transfer and that the better-qualified applicant was selected. Petitioner has failed to produce any credible evidence that Respondent's explanation was pretexual.

   
   

3. Based upon the foregoing Findings of Fact and Con-clusions of Law, it is concluded that Petitioner was not unlaw-fully discriminated against because of his age. Accordingly, it is

RECOMMENDED that the Petition of Joseph F. Friedman be dismissed.

DONE AND ENTERED this 23rd day of October, 1984, at Tallahassee, Florida.

WILLIAM J. KENDRlCK Hearing Officer Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1984.

COPIES FURNISHED:

Joseph F. Friedman 3679 East Citrus Trace Davie, Florida 33328

Carolyn Davis, Esquire Department of Labor and

Employment Security

2562 Executive Center Circle, East Suite 117-Montgomery Building Tallahassee, Florida 32301

Donald A. Griffin, Executive Director Florida Commission on Human

Relations

325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303

Wallace E. Orr, Secretary Department of Labor and

Employment Security

2562 Executive Center Circle, East Suite 117-Montgomery Building Tallahassee, Florida 32301

Docket for Case No: 84-002192

Orders for Case No: 84-002192