STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA H. WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2640

)

HOUSING AUTHORITY OF )

THE CITY OF SANFORD, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held in Sanford, Florida on October 31, 1985, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Harry L. Lamb, Esquire

621 North Fern Creek Avenue Orlando, Florida 32803

For Respondent: Ned N. Julian, Esquire

Post Office Box 1330 Sanford, Florida 32771

PROCEDURAL BACKGROUND AND ISSUES

This proceeding was initiated when Petitioner filed her Complaint of Discrimination with the Florida Commission on Human Relations on March 9, 1983, alleging that Respondent's failure to promote her to the position of Executive Director was based upon her gender in violation of Section 760.10(1) Florida Statutes. After its investigation of the charge, the Commission issued a determination that reasonable cause existed to believe that the alleged unlawful employment practice had occurred. This was followed by Petitioner's timely Petition for Relief and Respondent's answer.

The petition was forwarded by the Commission to the Division of Administrative Hearings, but prior to the scheduled final hearing the proceedings were stayed by Order of the Florida Fifth District Court of Appeals in case number 84-1115. The appellate court ultimately denied Respondent's Writ of Prohibition. See Opinion dated January 3, 1985, clarified on rehearing on March 14, 1985. The cause then resumed before the Division of Administrative Hearings.

At the hearing Petitioner presented the testimony of five witnesses (herself and four Sanford Housing Authority commissioners) and sixteen exhibits. Respondent presented the testimony of a fifth commissioner and three exhibits.

All exhibits, Petitioner's #1 - 16 and Respondent's #1 - 3, were received into evidence.

The issues at hearing were whether Respondent's failure to promote Petitioner to the position of Executive Director was a violation of Section 760.10(1) Florida Statutes, and if so, what relief should be granted.

Both parties submitted proposed findings of fact, and legal arguments in the form of proposed conclusions of law or memoranda. These submittals have been carefully considered in the preparation of this Recommended Order.

Specific rulings on each proposed finding of fact are included in an appendix, attached hereto and incorporated herein.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, the following findings are made:

1. The position of Executive Director of the Sanford Housing Authority became available on July 31, 1981, upon the resignation of Lewis B. Cox, a white male who had held the position for approximately eighteen months. His letter of resignation was dated July 13, 1981. By her letter dated July 27, 1981, addressed to Joseph Caldwell, Chairman, Petitioner informed the Respondent of her application for the vacancy. At the time she had been employed by Respondent for approximately nine and a half years as Social Services Director and as Director of Management. Lewis Cox's letter of resignation included his recommendation that Petitioner be promoted as his successor. (Petitioner's Exhibit #1) Petitioner is a black female.

   
   

2. Respondent is a public agency responsible for various housing and community development programs, including rentals to low and moderate income individuals. It receives government subsidies, primarily from the United States Department of Housing and Urban Development, and is also supported by rental income. Its governing body is a five-member board of commissioners which during the relevant period consisted of the following:

   
   

   Joseph Caldwell, Chairman (Black, Male)

   
   

   Eliza Pringle, Vice-Chairperson (Black, female)

   
   

   Mary Whitney, Commissioner (Black, female)

   
   

   J. Wain Cummings, Commissioner (White, male)

   
   

   Leroy Johnson, Commissioner (Black, male).

   
   

3. On August 13, 1981, at the meeting following Lewis Cox's resignation as Acting Executive Director, the Board appointed Petitioner as Acting Director.

   No one was appointed to fill her position of Director of Management and she

   continued to serve in both capacities until the regular Executive Director was finally appointed. This process took approximately fourteen months, from July 31, 1981, until September 29, 1982.

   
   

4. As Acting Director, the Petitioner advertised the vacancy by placing notices in the local paper and in professional newsletters. Over one hundred applications or resumes were received. At the suggestion of the Board attorney, the commissioners were each provided copies of all resumes and each selected his or her five top candidates. This was later narrowed to a list of six candidates to be interviewed. Petitioner was the only female candidate on the list. On January 7, 1982, the Board met to appoint an Executive Director. Two separate votes were taken at the meeting and both yielded the same result: Petitioner received two votes and three other candidates received one vote each; none received a majority. On January 16, 1982, the Board met and voted again.

   Again, the votes were taken twice, with the same result: Petitioner received two votes, Thomas Wilson III received two votes and Willie King, Sr. received one vote. Willie King was designated "second choice" by three commissioners. On January 29, 1982, the Board voted to appoint Willie King, Sr. as Executive Director. While he was not the first choice of any commissioner, he received four votes as second choice. None of the first choice candidates received a majority. (Petitioner's Exhibits #3 - 7, Minutes of Meetings of the Housing Authority of the City of Sanford)

   
   

5. Willie King, Sr. declined the appointment. Thus, the process continued with interviews, discussions, and failure to reach a decision, until September 29, 1982, when the Board met, interviewed Elliott Smith, Coordinator of the

   C.E.T.A Youth Employment Program, and voted again. He was appointed Executive Director after receiving a three-vote majority. At the same meeting Petitioner was commended for her service and for having saved the Housing Authority money by filling two positions. She was then informed that she would resume her position as Director of Management. (Petitioner's Exhibit #10, Minutes of meeting) At the time of final hearing, she was still in that position.

   
   

6. Petitioner's lengthy service with the Housing Authority gave her experience in virtually every aspect of the agency's housing programs. The grant programs were primarily handled by the Executive Director. Elliott L. Smith, at the time of his appointment as Executive Director, had no experience in housing programs. He did, however, have approximately seven years experience as coordinator of the Comprehensive Employment and Training Program (C.E.T.A.) for the Seminole County School Board in Sanford, Florida. This is a federal grant program. He also had administrative experience as a supervisor in a mill. (Respondent's Exhibit #1)

   
   

7. The advertisements for the position did not require housing program experience, but rather emphasized the need for management experience and familiarity with federal, state, and local programs, and government regulations. (Petitioner's Exhibits #13 and #14). It must be noted that Petitioner's Exhibit #13, an invoice and the text of classified ad in the Evening Herald, was received into evidence without objection. However, the date on the invoice is January 9, 1980, and apparently relates to a prior recruiting effort rather than the 1981 vacancy. It is presumed that since it, like Petitioner's Exhibit #14, was submitted as an example of the recruitment ads, the requirements for the position did not substantially change. Both candidates, Petitioner and Mr. Smith, met the minimum requirements for the position.

   
   

8. The Housing Authority has a personnel policy which is recommended by the Executive Director and adopted by the Board. The policy in effect during

   the relevant period provided very general guidance to the Board in making its appointment: one sentence on the merit system, a nondiscrimination clause and the statement that, "Vacated or newly established positions shall be filled to the fullest extent consistent with efficient operations, by the promotion of qualified, employees." (Petitioner's Exhibit #11).

   
   

9. The commissioners, most of whom were newly appointed, had their individual notions of what qualifications the Executive Director should have. No specific objective criteria were developed to assist them in the selection process beyond the policy referred above and the minimum requirements in the

   vacancy notices. The common, overall goal of the Board, however, was to restore respectability to the Housing Authority. The Sanford black community was split into factions and this impacted the Board which consisted of a majority of black commissioners. The majority of tenants were also black. Relations between the tenants and staff were strained and a negative audit from the U.S. Department of HUD (U. S. Department of Housing and Urban Development) had just been received. Staff morale was low. A previous Executive Director, Thomas Wilson, III who served from 1972 until 1980, was fired by the Board amid rumors of financial mismanagement of the block grant program. This was the same Thomas Wilson who was considered a serious contender for the position when his successor, Lewis Cox, resigned. (See paragraph 4, above). During the recruitment and hiring process, the commissioners received intense pressure from the various factions in the community supporting various candidates or urging certain qualifications.

   
   

10. Amid the procedural and political chaos surrounding the hiring, several notable rumors or controversies emerged. One such rumor was that Commissioner Cummings had made a statement to the effect that Petitioner had done a good job, but that it was a job for a man and he could not vote for her. He denies that statement and any prejudice against the Petitioner on account of her sex or race. He alleges that he voted against her because she was so closely connected to Thomas Wilson, having worked directly under him during his controversial tenure as Executive Director. Commissioner Whitney also denied in her testimony at the hearing that she heard the statement from Mr. Cummings. This testimony conflicts with her signed statement dated February 1, 1982, received into evidence, over objection, as Petitioner's Exhibit #16. On cross- examination, she denied having drafted the statement and could not remember who brought it to her to be signed. The statement is not a sworn statement. Commissioner Whitney consistently voted for hiring the Petitioner.

    
    

11. Commissioner Eliza Pringle did not hear the alleged statement by Commissioner Cummings either, but she generated a controversy on her own. At some point during review of the applications, she commented that photographs would be nice since they would reveal whether the applicant was male or female. She explained that the comment was a flippant remark on some of the names of the applicants. She denied any sexist animus. She stated that the Petitioner is related to her through some distant cousins who, in turn, are related to the McCoys, a prominent black family connected to one of the black Sanford factions. One of the McCoys held two terms on the Housing Authority Board. Commissioner Pringle did not wish to fuel the factionalism by hiring a relative. She supported Elliot Smith because, as a former school teacher, she was familiar with his C.E.T.A work in the schools, and felt he could make a contribution to the community.

    
    

12. Commissioner Leroy Johnson voted for Thomas Wilson to be hired back to his former position. He thought Wilson needed another chance and had the best

    experience. Later, when Elliot Smith was interviewed, he supported Smith because of his skills in working with people and in writing federal grants. Elliott Smith was a contender late in the hiring process because his C.E.T.A. position was eliminated.

    
    

13. No woman has ever been Executive Director of the Sanford Housing Authority. Petitioner conceded, however, that even if Lewis Cox had been a woman he would have been hired because of his strong financial background. Willie King, the candidate who was offered the appointment, but declined, also had a background in financial affairs. As protracted as the process was, a common bond of frustration joined all the commissioners in their search for an Executive Director. Like a deus ex machina, Elliott Smith appeared on the scene at the eleventh hour, fourteen months after the vacancy was created, and obtained the three votes necessary for a majority. By those who voted for him, he was viewed as having the necessary skills without the close ties to the Housing Authority which appeared to taint the other leading candidates.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties of this proceeding pursuant to Subsection 120.57(1), Florida Statutes. Jurisdiction was also established in pre-hearing judicial proceedings in this case. See Housing Authority of the City of Sanford, Florida v. Robert Billingslea, et al., 10 FLW 136 (5th DCA, opinion dated January 3, 1985; rehearing granted at 10 FLW 648, opinion dated March 14, 1985).

    
    

15. Subsection 760.10(1), Florida Statutes (The Human Rights Act of 1977, as amended), provides in pertinent part:

    
    

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

       1. To discharge or 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 individuals . . . sex . . .

       2. To limit, segregate or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individuals

          . . . sex . . .

          
          

          Subsection 760.10(10) Florida Statutes, provides that persons aggrieved by a violation of the section may file a complaint with the Human Relations Commission. Subsection 760.10(13) Florida Statutes, describes the relief which may be granted in the event of a finding that an unlawful employment practice has occurred. Procedural rules of the Commission are found at Chapters 22T-8 and 22T-9, Florida Administrative Code.

16. Florida's Human Rights Act of 1977, as amended, is patterned after Title VII of the Civil Rights Act of 1964, 42 USC Section 2000e-2. For that reason it is appropriate to look to federal courts' interpretation of Title VII for guidance. School Board of Leon County v. Hargis, 400 So.2d 103 (1st DCA 1981).

    
    

17. In Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L.Ed.2d 207, 101 S.Ct. 1089 (1981) the U.S. Supreme Court explained that: "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." p.

253. The Supreme Court has allocated intermediate evidentiary burdens as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination.

Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employer's rejection.' [page citation deleted] Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, Supra. at 253, citing McDonnel Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed 2nd 668 (1973).

1. In context of the above Supreme Court direction, the Petitioner clearly proved her prima facie case: She applied for the position; she was highly qualified; she was rejected and a male was hired under circumstances which give rise to an inference of unlawful discrimination. That inference is enhanced by Petitioner's more relevant experience and the agency's personnel policy which favored promotions from within.

   
   

2. The presumption of discrimination, however was rebutted by competent substantial evidence of legitimate nondiscriminatory reasons for preferring the male who was hired. Those reasons were the qualifications of Elliot Smith, the sensitive political climate in the community, the association of Petitioner with prior problems at the agency and her blood relationship, albeit distant, with one of the commissioners and with one of the families at the forefront of the black community factionalism.

   
   

3. At this stage the Petitioner was required to prove that the agency's proffered reasons were phony and a pretext for discrimination. Here, the Petitioner's case failed; She was unable to show ". . . that a discriminatory reason more likely motivated the employer or . . . that the employer's proffered explanation is unworthy of credence." Burdine, at 256, citing McDonnell Douglas, supra. Petitioner failed to show that Elliot Smith's lack of experience in housing programs rendered him unqualified or even less qualified than she was. Nor did she prove the allegations of discriminatory statements by commissioners Cummings and Whitney. She did not prove that her sex was in any way a factor in the board's employment decision.

4. In the final analysis, the trier of fact must decide which party's explanation of the employer's motivation it believes. Cooper v. Federal Reserve Bank of Richmond, 104 S.Ct. 2794 (1984), citing United States Postal Service Board of Governors v. Aikens, 103 S.Ct. 1478 (1983). Petitioner's perception that she was discriminated against was sincere, but in light of the credible testimony of the Respondent's commissioners, the perception was never translated into such concrete competent evidence as would sustain her burden of proof.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Human Relations Commission enter a final order finding that Respondent did not discriminate against Petitioner and denying Petitioner's claim for relief.

DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida.

MARY CLARK, 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 20th day of January, 1986.

APPENDIX TO FINAL ORDER IN CASE NO. 84-2640

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in substance in paragraphs 1 and 3.

2. Adopted in paragraph 1.

3. Adopted in paragraph 1. The statement that all prior Executive Directors had been males is adopted in paragraph 13.

4. Adopted in paragraph 3.

5. Adopted in paragraph 5.

6. Rejected as being contrary to the evidence.

7. Adopted in paragraph 1 and 4.

8. Adopted in substance in paragraphs 6 and 7.

9. Adopted in paragraph 4.

10. Adopted in paragraphs 4 and 5.

11. Adopted in substance in paragraph 3.

12. Adopted in substance in paragraph 5.

13. Rejected as contrary to the evidence.

14. Adopted in part in paragraph 9. The first sentence regarding the absence of any objective standards is too broad to be consistent with the evidence.

15. Rejected as being unsupported by competent substantial evidence. See paragraph 8 and 9.

16. Adopted in paragraph 8.

17. Rejected as being unnecessary.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Rejected as unnecessary and immaterial.

2. Adopted in paragraphs 1 and 3.

3. Adopted in paragraph 1.

4. Adopted in paragraph 3.

5. Adopted in paragraph 5, except that Smith was appointed on September 29, 1982, rather than September 19th.

6. Adopted in substance in paragraph 9 and 13.

7. Adopted in substance in paragraph 13.

8. Rejected as unnecessary.

9. Adopted in paragraph 11, except the final sentence, which is unnecessary.

10. Adopted in substance in paragraph 4.

11. Adopted in paragraph 13.

12. Rejected as cumulative and unnecessary.

13. Rejected as contrary to the weight of the evidence, although it is accepted that black politics is one factor in the decision-making function of the board. See paragraph 9.

14. Adopted in paragraph 10.

15. Adopted in substance in paragraph 10.

16. Adopted in part in paragraph 11. The last sentence is rejected as being inconsistent with the weight of the evidence.

17. Adopted in substance in paragraph 12.

18. Adopted in substance in conclusions of law, paragraph 8.

COPIES FURNISHED:

Dana Baird, Esquire

Florida Commission on Human Relations

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

Betsy Howard, Clerk

Human Relations Commission

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

Donald A. Griffin Executive Director

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

Harry L. Lamb, Esquire 621 N. Fern Creek Avenue Orlando, Florida 32803

Ned N. Julian, Esquire Post Office Box 1330 Sanford, Florida 32771

Docket for Case No: 84-002640

Orders for Case No: 84-002640