STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

GENEVA ROBERTS, )

)

Petitioner. )

)

vs. ) CASE NO. 85-1658

) DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 14, 1985, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were repre- sented at hearing by the following counsel:

APPEARANCES

For Petitioner: Joseph C. Jacobs, Esquire

ERVIN, YARN, JACOBS, ODOM & KITCHEN

Post Office Drawer 1170 Tallahassee, Florida 32302

For Respondent: Kenneth H. Hart, Jr., Esquire

General Counsel

Florida Department of Labor and Employment Security

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301

ISSUE

The issue in this case is whether the Respondent discriminated against the Petitioner on the basis of her age, as alleged in her charge of discrimination dated June 6, 1984, and in her petition for relief dated March 6, 1985.

INTRODUCTION

At the formal hearing both parties called several witnesses and offered numerous exhibits into evidence. At the conclusion of the hearing the parties decided not to order transcript of the hearing and agreed to a thirty-day period within which to file their post-hearing submissions to the Hearing Officer. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposed recommended orders have been carefully considered in the formulation of this Recommended Order and a specific ruling has been made on each proposed finding of fact in the appendix which is attached to and incorporated in this Recommended Order.

FINDINGS OF FACT

Based on the admissions of the parties and on the exhibits received in evidence and the testimony of the witnesses at hearing, I make the following findings of fact:

1. The Petitioner has been employed by the Respondent from July 1, 1980 to the present. She was first employed with the Respondent as a Staff Assistant II following the abolition of the Crimes Compensation Commission by the Legislature, effective June 30, 1980. The crimes compensation program was transferred to the Respondent at that time.

   
   

2. As a Staff Assistant, Petitioner's duties included reviewing claims submitted by field investigators. After approximately two months in this position, the Petitioner requested permission to do the actual investigation of claims. The Petitioner's Bureau Chief, Herbert Parker, authorized Petitioner to investigate claims because her duties as a Staff Assistant did not keep her busy full time.

   
   

3. Respondent's Monthly Field Representative Reports, maintained by Mr. Parker, reflect that the "Claims Examiners," i.e., Staff Assistants, including the Petitioner and Betty Cureton, completed a combined total of 13 reports in August 1980. In October 1980 these Reports began to break out the investigation work performed by the Petitioner and Ms. Cureton, showing the number of reports they completed as well as those completed by the actual Field Representatives.

   
   

4. The Monthly Field Representative Reports show that Petitioner's investigations gradually increased in number over

   the next two years, so that in the six months from May 1983 through October 1983, she averaged almost 15 reports per month. A Field Representative was expected to produce at least 25 reports per month.

   
   

5. In October 1983, Petitioner's position was reclassified from Staff Assistant II to Field Representative, reflecting the continuing transition in the Petitioner's duties from those of a Staff Assistant to the duties of a Field Representative.

   
   

6. When her position was reclassified in October 1983, the Petitioner's salary was $1,570.S2 per month. The minimum salary for a Field Representative was $1,139.70 per month and the maximum was $1,635.60 per month. Petitioner's salary was not increased at that time.

   
   

7. The reason Petitioner's salary was not increased at that time is that she was already earning over the minimum for the new classification and the Respondent was experiencing budget problems. In response to its budget problems, Respondent had taken a number of corrective measures, including a freeze on promotional pay increases. Within the Division of Worker's Compensation, the freeze was lifted in December 1983 but the Bureau Chiefs within the Division were admonished to be sure their respective units had "rate" and "salary" available before granting any increases.

   
   

8. Rate Reports for the Bureau of Crimes Compensation show that that Bureau did not have any available rate from the time of Petitioner's promotion in October 1983 through March l984when she received a salary increase. The Rate Reports reflect a rate deficit occurred in March 1984 equal to the amount of Respondent's and Betty Cureton's combined salary increases.

   
   

9. By Waiting until March to award pay increases to Petitioner and Ms. Cureton, the Respondent was better able to project its budget status through the end of the fiscal year and determine that the Division of Worker's Compensation would be able to offset the Bureau's rate deficit.

   
   

10. In deciding whether to give promotional increases and, if so, in what amount, the Respondent considers a person's individual qualifications, along with budget considerations. Some employees do not receive any increase at all when they are promoted others have received less than Petitioner's five per cent and some have received more.

11. The class specifications for the class of Field Representative contain the minimum training and experience requirements, which include: "graduation from an accredited four-year college or university and two years of professional experience directly involved in the juvenile or adult criminal justice system." The Petitioner had only two years of college and she did not have any past employment that would have satisfied the requirement for two years of professional experience in the criminal justice system.

    
    

12. Respondent obtained a substitution of required training and experience for Petitioner by counting the field investigation work she did between August 1980 and October 1983, while employed as a Staff Assistant. This substitution enabled her to qualify as a Field Representative once the position was reclassified. A similar substitution was obtained for another employee, Ms. Cureton.

    
    

13. Petitioner is a very capable efficient employee who has always received outstanding evaluations, receiving a score of thirty-six out of a possible thirty-six evaluative points on the performance of her duties on her performance ratings by her superiors.

    
    

14. The Petitioner's age was not a factor in any of the Respondent's personnel decisions affecting the Petitioner's promotion or promotional pay increases.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. See Sec. 120.57(1), Fla. Stat.

    
    

16. Section 760.10, Florida Statutes, makes it an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of such individual's age. Discrimination denotes disparate treatment, i.e., that the employer treated older employees differently than younger ones were treated.

    
    

17. In a discrimination case the Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate reason for the Petitioner's disparate treatment. Should Respondent carry this burden, Petitioner must then have

    an opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not his true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L.Ed. 2d 207 (1981).

    
    

18. To present a prima facie case, Petitioner must present facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254. The prima facie case serves to eliminate the most common non-discriminatory reasons for the Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and n. 44, 97 S.Ct. 1843, 1866, 52 L.Ed. 2d 396 (1977).

    
    

19. In order to establish a prima facie case Petitioner must show: (1) that she is in a classification covered by Section 760.10; (2) that she performed her assigned duties satisfactorily, and (3) that despite her satisfactory performance she was treated in a discriminatory manner. Cf. McDonnell Douglass Corp. v. Greene, 441 U.S. 792, 93 S.Ct. 1817, 37 L.Ed. 2d 668 (1973).

    
    

20. Here, the Petitioner has failed to present a prima facie case of discrimination because of age. There is no evidence of any pattern of discrimination against elderly employees in granting promotions or promotional pay increases. In fact, there is no evidence in the record of the exact age of the Petitioner or of the ages of any of the other employees whose promotions are relied upon by Petitioner as evidence of discrimination. Without such evidence it is impossible to establish a prima facie case of age discrimination.

    
    

21. In any event, even if the Petitioner had succeeded in establishing a prima facie case of discrimination, the Respondent has articulated and substantiated legitimate, non- discriminatory reasons for the personnel actions and inactions complained of by Petitioner and the Petitioner has presented no persuasive evidence that the articulated reasons are a pretext for discrimination by reason of age.

    
    

22. State Personnel Rule 22A-2.06(5)(b) provides that an employee's pay may be increased when the employee is promoted but does not require a promotional pay increase to be granted. Rule 22A-2.06(5)(c) provides that a promotional pay increase of up to 10 percent may be granted if an employee possesses training and/or experience substantially above the minimum

    requirements. Petitioner did not possess superior training or experience that would have justified a 10 per cent increase.

    Respondent was not obligated under the applicable rules to grant a pay raise to Petitioner.

    
    

23. The evidence presented by Petitioner does not establish that Respondent withheld a pay raise in October 1983 or based its decision to award 5 percent instead of 10 per cent in March 1984 upon considerations of Petitioner's age or other prohibited basis. The evidence supports Respondent's contention that its decision with regard to Petitioner's raise was based on her qualifications and on budget constraints. Respondent's actions were not based on factors constituting prohibited discrimination.

    
    

24. Respondent reclassified Petitioner's position in accordance with State Personnel Rule 22A-1.021 which provides for reclassification when there is a gradual increase or decrease of either kind of duties or level of responsibilities to such an extent that the classification of the position should be changed. Respondent's actions in this regard were based on its evaluation of the nature of the work being performed, i.e., the work's gradual transition from that of a Staff Assistant to work which was increasingly that of a Field Representative. Respondent's actions in reclassifying Petitioner's position were not based on considerations of Petitioner's age or other factors constituting prohibited discrimination.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Geneva Roberts.

DONE AND ORDERED this 11th day of December, 1985, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 11th day of December, 1985.

APPENDIX

The following are the specific rulings on each of the proposed findings of fact submitted by the parties.

Rulings on Petitioner's proposed findings:

1. Accepted in part and rejected in part. The accepted portions are incorporated in findings proposed by the Respondent. The rejected portions are rejected either as irrelevant details or because they are not supported by persuasive competent substantial evidence.

2. Rejected as irrelevant.

3. Accepted and incorporated in other findings.

4. The portion up to the first comma is accepted. The portion after the first comma is rejected as irrelevant in light of other evidence in the record, especially when note is taken of the fact that a new employee at ten per cent above the minimum was making substantially less than Petitioner.

5. First sentence is accepted in substance. Second sentence is rejected as irrelevant.

6. Rejected because it incorporates irrelevant details and because to the extent it proposes comparisons between Petitioner and Ms. Raker it incorporates opinions, inferences, and conclusions which are not supported by persuasive competent substantial evidence.

7. Rejected as irrelevant.

8. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Further, the ultimate conclusion asserted in paragraph 8 of the Petitioner's proposed findings is not supported by the evidence.

9. Rejected as irrelevant and also as misleading in light of other evidence.

10. Rejected as constituting argument or conclusions of law rather than proposed findings of fact.

11. Rejected as constituting argument or conclusions of law rather than proposed findings of fact.

12. Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence.

The first unnumbered paragraph under the caption SUMMARY OF FACTS is rejected because most of it is not supported by persuasive competent substantial evidence and the remainder is inconsistent with the greater weight of the evidence.

The first sentence of the second unnumbered paragraph under the caption SUMMARY OF FACTS is rejected as contrary to the greater weight of the evidence. The last sentence of that paragraph is accepted.

Rulings on Respondent's proposed findings:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

10. Most of the first six lines are rejected as constituting summaries of the parties' contentions rather than proposed findings. The substance of lines 7 through 11 is accepted. The last sixteen lines of this paragraph are rejected on the grounds that for the most part they constitute legal argument, conclusions of law, and explication of reasons for making findings of fact, but are not themselves findings of fact. [Some of the material on the last sixteen lines is accepted and incorporated in the Conclusions of Law portion of this Recommended Order.]

11. The substance of this paragraph is accepted, with certain minor corrections and deletions.

12. Accepted.

COPIES FURNISHED:

Joseph C. Jacobs, Esquire ERVIN, YARN, JACOBS, ODOM

& KITCHEN

Post Office Drawer 1170 Tallahassee, Florida 32302

Kenneth H. Hart, Jr., Esquire General Counsel

Florida Department of Labor and Employment Security

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301

Donald A. Griffin, Executive Director Florida Commission on Human Relations

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

Dana Baird, Esquire General Counsel

Florida Commission on Human Relations

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

Betsy Howard, Clerk

Florida Commission on Human Relations

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

Docket for Case No: 85-001658

Orders for Case No: 85-001658