STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY EDWARD TATE )

)

Petitioner, )

)

vs. ) Case No. 85-3718

)

EG&G SERVICES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on May 16, 1986, in Cocoa Beach, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Neal L. Betancourt, Esquire

Rotchford & Betancourt, P.A.

211 East Church Street Jacksonville, Florida 32202

For Respondent: Susan McKenna, Esquire

Law Offices of Thomas C. Garwood, P.A.

57 West Pine Street Orlando, Florida 32801

BACKGROUND AND PROCEDURAL MATTERS

On or about September 28, 1984, Henry E. Tate filed a charge of discrimination with the Florida Commission on Human, Relations alleging that he was denied a promotion on account of his race.

The agency conducted its investigation, then held a fact-finding hearing and ultimately determined "no cause." A timely Petition for Relief was filed and the case was forwarded to the Division of Administrative Hearings.

At the final hearing Mr. Tate testified on his own behalf and presented the testimony of six additional witnesses; EG & G presented five witnesses. All exhibits, numbered 1-29, including an exhibit number lla, were admitted by stipulation of the parties.

After the hearing both parties submitted proposed recommended orders and Petitioner submitted a brief. These have been carefully considered in the preparation of this Recommended Order and specific rulings on the proposed findings of fact are included in the attached Appendix.

ISSUE

Whether Respondent violated subsection 760.10(1), Florida Statutes by denying Petitioner a promotion on account of his race and color.

FINDINGS OF FACT

1. Henry E. Tate is a forty-nine year old black male who has worked at the Kennedy Space Center (KSC) since April 12, 1965. (tr-10, 11)

   
   

2. From 1965 until the present, a series of civilian contractors have had agreements with the National Aeronautics and Space Administration (NASA) to perform logistical and housekeeping duties at KSC. These included Transworld Airline, the Boeing Company and Expedient Services, Inc. (tr-34)

   
   

3. In January 1983, EG & G Florida, Inc., (EG&G) assumed the master base contract for logistics and housekeeping, but it was not until July 1983 that it took over operational control of the roads and grounds department. EG & G employs in excess of fifteen persons. (tr-101, 102, Exhibit number 11)

   
   

4. Except for three or four months in the early 1970's when he worked in the mechanic shop, Mr. Tate was employed in the roads and grounds department steadily from 1965. As each successor contractor took over he applied for, and was hired for the same job. This included EG & G in July 1983. (tr-11, 13,

   34) His current title is lead labor operator- pest control and he makes $10.16, plus $.75 lead pay, per hour. (tr-11)

   
   

5. Mr. Tate's duties in the roads and grounds department have included pesticide and herbicide spraying of the grounds and buildings, and all aspects of weed, insect and pest control, both indoors and out. At different times he has driven dump trucks and operated forklifts, locals and trailer trucks. (tr-ll, 12, Exhibit number 15)

   
   

6. In 1971, Mr. Tate was made "lead" over pest control, herbiciding and sanitation. In that capacity he worked directly under a supervisor who gave him instructions as to the work to be performed. He would then take his people and get the work done.

   Afterwards he would report back on the results. (tr-51, 56, 57, Exhibit 115) He has remained a lead worker since that time; even though the formal title was abolished in 1984, the pay differential remains. (tr-152) The rationale for the higher pay is that leads assign work to crews which vary commonly from two to eight people. Leads order material and perform some, administrative tasks in conjunction with the functions of their job classification. (tr-153) At varying times Mr. Tate has served as lead over one to ten persons. He is currently lead over a crew of six. (tr-13, 14, 36, 49, 266, 267) During the period of the TWA contract, Mr. Tate filled in as acting supervisor when his supervisor was on vacation. (tr-47)

   
   

7. In November 1983, EG & G posted a job listing for the position of Supervisor, Roads and Grounds Department. The job posting number 1125 required a high school diploma, five years supervisory experience in the assigned area of responsibility and a State of Florida restricted pesticide license. (Exhibit number

   1) Mr. Tate applied for the job. He has a high school education and felt that his long experience in the field and his lead experience qualified him. His supervisor vacating the job also thought Mr. Tate was qualified and would be hired. (tr-60)

   
   

8. Mr. Tate was not interviewed for job posting number 1125; nor were the two other internal applicants who were also black. (tr-18, 275, 276) Instead a white male was hired. That individual, Ted Bender, had an associate degree in business administration, some supervisory experience and the required pesticide license. (Exhibit number 13)

   
   

9. Mr. Tate was informed of the posting result by a form dated November 8, 1983. The basis for his non-selection was checked, "meeting minimum qualifications", with an asterick and the hand-written notation, "Must have a restricted pesticide license in the State of Florida". No other basis was checked or noted. (exhibit number 2)

   
   

10. At the time that he applied for job posting number 1125, Henry Tate had applied for his pesticide license but did not receive it until December 1983. He studied on his own, reading anything he could find on pest control, and took vacation time off to go to Gainesville to take the license exam. His current license expires October 31, 1987. (tr-15, 64, Joint Prehearing Stipulation)

    
    

11. Ted Bender resigned in May 1938, and the vacancy was again posted. Job posting number 1331 stated a posting date of May 24, 1984 and a closing date of May 28, 1984. It differed from posting number 1125 in the requirement that the successful applicant get a restricted pesticide license within sixty days of

    position acceptance. The five years supervisory experience in assigned area of responsibility and high school diploma requirements remained the same. (Exhibit number 5)

    
    

12. Henry Tate applied again and was interviewed on May 31, 1984, by Raymond Tuttle, who at that time was Manager of Roads and Grounds. At the end of the interview Mr. Tuttle filled out the company Interviewer's Report form with the following appraisal:

    
    

    Job qualifications are met if lead time is classified as supervisory experience. He has worked with pesticides for approximately 15 years on KSC. He has a working knowledge of pesticide application although he has no formal horticulture training. He has attended several extension service sponsored seminars over the past 15 years that covered pest control problems in our local area. He currently holds a valid state of Florida pesticide license. Mr. Tate seems willing to accept the responsibilities involved but would require some management skills training to aid in the performance of this position. (Exhibit number 15)

    
    

13. He rated Mr. Tate "good" on a scale which ranged from "top" to "unsuitable"; he checked "Hold-Further Review" for the recommended action. (tr. 157, 164, Exhibit 15) During the interview he did not tell Mr. Tate there was a problem with his supervisory experience. (tr-23, 183)

    
    

14. Raymond Tuttle also interviewed another internal candidate, William Deffendall. He noted on the Interviewer's Report that this candidate did not meet minimum qualifications. (Exhibit 14)

    
    

15. After the interviews, Raymond Tuttle went to see Nancy King, who at that time was Supervisor of Employment at EG & G. He asked her whether lead time could be considered as supervisory experience and she did not have an answer. They both looked at the files and could not find anyone who had supervisory background or a restricted pesticide license. At that point they discussed advertising for external candidates and drafted the advertisement. (tr-185, 186, 205, 207, 208)

    
    

16. Sometime later, after the first week in June, Nancy Ring asked Mr. Erikson in employment relations whether lead time could be used to meet the supervision requirement. He also had to check; and when he got back to Ms. King a few days later the

answer was that EG & G had not used lead time in lieu of supervisory experience. (tr-232, 233, 234)

1. Meanwhile, on June 4, 1984, Mr. Tate was given his posting result form: "You were not selected for this position due to:" *Other ". The handwritten explanation of "other" was "Other candidates are being considered." (Exhibit number 16) At that time there were no other candidates available to be considered as Messers. Tate and Deffendall were the only internal applicants; no candidates with applications on file met the minimum qualifications, and the advertisement for external candidates didn't run until June 12, 1984. (tr-191, 211)

   
   

2. The advertisement that ran from June 12-June 17, 1984, differed materially from both job posting number 1331 and the position description for Supervisor, Roads and Grounds that was in effect at that time. The newspaper notice required not a high school degree, but a "B.S. in Agriculture", and 3-5 years experience in horticulture, entomology and supervision. The formal education requirement was therefore increased and the experience requirement was reduced from 5 years to "3-5 years". (Exhibit number 22) Ms. King admitted that the advertisement was not a formal upgrading of the job. (tr-237) More significantly, Raymond Tuttle admitted that they were not looking for someone with a Bachelor's degree but rather increased the requirements to keep out a flood of candidates. (tr-190) According to Ms. King, the company has a policy of substituting experience for educational requirements and the B.S. degree would not have excluded Mr. Tate. However, he was not told of this and there was no way that an individual reading the advertisement could surmise that. (tr-214, 238, 239)

3. Four candidates responded to the advertisement and were interviewed; all were white. (tr-203)

   
   

4. The first choice among those candidates was Richard Van Epp, rated "high" by Raymond Tuttle. Mr. Van Epp's application reveals solid experience in landscape work, including supervision, but nothing specific in entomology, a deficiency also noted on Raymond Tuttle's Interviewer's Report. (Exhibit number 17) Richard Van Epp was offered the job but turned it down. (tr-172)

   
   

5. The second-choice candidate, Larry Gast, was hired effective July 24, 1984, with a salary offer of $13.50 per hour in a salary range of $9.94 (minimum), $12.64 (mid) and $15.34 (maximum). (Exhibit number 5) Mr. Gast was rated "high" by Raymond Tuttle with a notation on the Interviewer's Report that he met all requirements of this position. Mr. Gast's application reveals a B.S. degree from the University of Florida in 1980,

   with his major field in entomology. Prior to college he was in high school. The only job experiences listed on his resume and application are lab technician with the U.S. Department of Agriculture in Gainesville, from 11/79 to 3/81; and from 4/81- 6/84, production supervisor/entomologist with the U.S. Sugar Corporation in Clewiston, Florida. (Exhibit number 18) At the time that he was hired by EG & G Larry Gast had approximately three years and two months experience supervising others in a related field. This falls within the minimum required by the newspaper advertisement but falls short of the five years required by the job posting and position description. (Exhibit number 5)

   
   

6. On July 23, 1584, Henry Tate was sent another posting result form, this time checked "Another candidate was selected." (Exhibit number 20) He was called into Mr. Tuttle's office and was told that a new supervisor was hired. He was told that pesticides were no problem, herbicides were no problem, but that Mr. Tuttle was "not comfortable" with his background in horticulture. Mr. Tuttle also told him that something might come along later. Mr. Tate replied that he had been in roads and grounds for almost 20 years and how much later was he supposed to wait. (tr-274)

   
   

7. Henry Tate was never told that there was any problem with his lack of supervisory experience until the fact finding conference held before an investigator from the Florida Commission on Human Relations. (tr-32, 253, 273)

   
   

8. Sometime after the fact finding conference, Earle Patrick, who was then EG&G's Equal Employment Opportunity, Supervisor, called Mr. Tate and asked why he had not applied for another Supervisor job posting. This posting also required supervisory experience and Mr. Tate quickly informed him that he had no more experience than when he applied for the first job. (tr-272) Earle Patrick's convoluted testimony explaining why the phone call was made ended with this exchange:

   
   

   Q. [by Mr. Betancourt] Well, did you think he was qualified for this position and had a shot at it? A. No, I didn't.

   
   

   Q. So you were calling him about a job he couldn't possibly get?

   
   

   A. That's right. (tr-261)

9. When Larry Gast was initially hired he was Supervisor

   of Roads and Grounds in charge of grounds maintenance and pest control. He supervised approximately 29 individuals and had three leads. There was another Supervisor of Roads and Grounds in charge of road maintenance and sanitation services. The Roads and Grounds Department was reorganized in early 1985 to create three supervisors. Larry Gast became responsible for the bridgetenders and pest control and his staff was reduced to fifteen individuals, including one lead, Henry Tate. Nine of the staff are bridgetenders who never leave the bridge and do not require a lead. The remaining workers can be anywhere in an area

   28 miles long and 14 miles wide. As lead, in the words of Larry Gast, Henry Tate is the "eyes in the field" for those workers. This organizational structure still exists. (tr-121, 123, 266, 267, 269, Exhibit number 11)

   
   

10. The reorganization brought Larry Gast's position closer into line with the industry standard described by EG & G's Manager of Personnel Management, Stephen Mansfield. That standard says that supervisors should be able to handle six to eight people; anything more tends to stretch the supervisor thin; anything less would suggest that you may not need a supervisor. (tr-151,152) With 29 persons, Larry Gast concedes he was stretched very thin. (tr-270)

    
    

11. Henry Tate was highly qualified for the position of Supervisor of Roads and Grounds, job posting number 1331. While EG & G had never counted lead time for supervisory experience in the past, the evidence strongly suggests that the issue simply never arose in the past. Various individuals in the employment office couldn't immediately answer when asked if lead time could be considered. Most supervisor positions do not require previous supervisory experience. (tr-136) At one point during another reorganization, approximately 16 leads were reclassified as supervisors. (tr-153, 156) The substantial weight of evidence supports a finding that EG &G did not consider Henry Tate unqualified:

    
    

    1. For job posting number 1125, he was told only that he lacked the restrictive pesticide license and he was not interviewed. He then got the required license.

       
       

    2. He was interviewed for job posting number 1331 and was not informed that there was a problem with his failure to meet minimum qualifications until well after the position was filled and the discrimination issue was raised. Neither job posting result forms so informed him, despite the fact that the form includes a line to be checked with regard to meeting minimum qualifications.

       
       

    3. Raymond Tuttle rated Tate a "good" candidate and put his

       application "on hold", both of which are inconsistent with a belief that the individual is unqualified.

       
       

    4. Earle Patrick's intent in calling Henry Tate about the new supervisory position could hardly be so perverse as he has contrived in his testimony.

    
    

12. EG & G cannot legitimately claim that Mr. Tate's lack of supervisory experience was the basis for their rejection of his request for promotion. They commenced the solicitation of outside candidates well before the answer on lead time came back. (tr-210, 211, 233)`'

    
    

13. While Henry Tate may have benefitted from some training to acquire polish as a supervisor, training is provided routinely by EG & G for all new, as well as old supervisors. (tr-244)

    
    

14. The company espouses a policy of promoting from within.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1) Florida Statutes.

16. Henry Tate is a "person" within the definition in subsection 760.02(5) Florida Statutes, and EG & G is an "employer" within the definition in subsection 760.02(6) Florida Statutes.

    
    

17. Henry Tate's claim that his denial of a promotion was based upon his race constitutes a claim cognizable under the Human Rights Act of 1977, sections 760.01-760.10 Florida Statutes. More specifically, failure to promote because of race is prohibited by Section 760.10(1) Florida Statutes.

    
    

18. 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 the federal courts' interpretation of Title VII for guidance. School Board of Leon County v. Hargis, 400 So. 2d 103 (1st DCA 1981).

    
    

19. 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 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

    L.Ed 2nd 668(1973).

    
    

20. In the context of the above guidance, Henry Tate proved his prima facie case: he is black; he applied for the position a promotion; he was well-qualified; he was rejected and a white was hired under circumstances which strongly suggest discrimination.

    
    

21. EG & G attempted to proffer two legitimate non-

    discriminatory reasons for preferring the white candidate: Mr. Tate lacked supervisory experience, and the other candidate was more qualified. EG & G does not have to prove that those reasons in fact existed, but the evidence produced by EG & G still falls short of legitimacy. Its consistent actions belie the claim that Henry Tate's lead experience did not constitute prior supervisory experience. The applications of the two preferred white candidates on their face reveal deficiencies at least as great as those suggested against Henry Tate: Van Epp lacked entomology training or experience and Gast's horticultural and supervisory experience at most barely met the requirements of the newspaper advertisement and fell substantially short of the 5 years required in the job description and job posting for the position.

    
    

22. Assuming for the sake of argument that EG & G's explanations are sufficient to meet the minimum test in Burdine, Henry Tate succeeded in proving both that " a discriminatory reason more likely motivated the employer . . . [and] . . . the employer's proferred explanation is unworthy of credence". Burdine, at 256, citing McDonnell Douglas, supra.

    
    

23. Direct evidence of discriminatory intent is seldom present. Hargis, supra, p. 107. This case comes close: a black man with nearly twenty years experience on the job and a clear love for the work (as evidenced by his self instruction and his sacrifice of higher pay in the machine shop to return to the grounds) is passed over for promotion in favor of a young white man, albeit affable and reputedly competent, with no experience in the company and three years out of college. Six months after the young man is hired, his staff and responsibilities are substantially reduced.

    
    

24. The patent illegality of creating what EG & G admitted was a sham requirement when advertising the position simply confirms the company's reckless disregard for the most elemental precepts of fair employment practice. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).

    
    

25. Henry Tate is entitled to affirmative relief, including attorney's fees. Section 760.10(13) Florida Statutes. Such affirmative relief requires that he be promoted to the position of Supervisor of Roads and Grounds, job posting number 1331, retroactive to June 12, 1984, the date the company commenced advertising for outside applicants and approximately two weeks after the internal job posting closed. Back pay should be computed at least from the level of pay accorded to Larry Gast.

Based on the foregoing it is RECOMMENDED:

That the Florida Commission on Human Relations enter a Final Order finding EG & G in violation of Section 760.10(1) Florida Statutes, requiring that Henry Tate be retroactively promoted, and establishing back pay and reasonable attorney's fees.

DONE AND RECOMMENDED this 11th day of August, 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 11th day of August, 1986.

COPIES FURNISHED:

Neal L. Betancourt, Esquire Rotchford a Betancourt, P.A.

221 E. Church Street Jacksonville, Florida 32202

Susan McKenna, Esquire Law Offices of Thomas C. Garwood, P.A.

57 West Pine Street Orlando, Florida 32801

APPENDIX

Specific rulings on Petitioner's proposed findings of fact:

1. Adopted in Paragraph 1.

2. Adopted in Paragraph 2.

3. Adopted in Paragraph 3.

4. Adopted in Paragraphs 4 and 5.

5. Adopted in Paragraph 6.

6. 7 and 8. Adopted in substance in Paragraph 7.

1. Adopted in substance in Paragraphs 4 and 6.

2. Rejected as cumulative and unnecessary.

3. Adopted in substance in Paragraph 6.

4. Rejected as immaterial and unnecessary.

5. Adopted in substance in Paragraph 8.

6. and 15. Adopted in Paragraph 7

1. Adopted in substance in Paragraph 7.

2. Rejected as cumulative and unnecessary.

3. Adopted in Paragraph 7.

4. Adopted in Paragraphs 7 and 9.

5. Adopted in Paragraph 9.

6. Rejected as cumulative and unnecessary.

22, 23, 24, and 25. Adopted in substance in Paragraph 10.

1. Adopted in substance in Paragraph 16.

2. Rejected as cumulative and unnecessary.

3. Adopted in substance in Paragraph 18.

4. and 30. Adopted in substance in Paragraph 13.

1. Adopted in Paragraph 12.

2. Adopted in Paragraph's 15 and 18.

3. Adopted in Paragraph 13.

34, 35, and 36. Adopted in Paragraph 14.

37. and 38. Adopted in preliminary statement.

39. Adopted in Paragraph 16.

Specific Rulings on Respondent's Proposed Findings of Fact

1. Adopted in Paragraphs 1-6.

2. Rejected as immaterial and unnecessary.

3. Adopted in substance in Paragraph 7.

4. Rejected as immaterial, unnecessary and (as to the posting results form) unsubstantiated. The statement with regard to hiring Ted Bender is adopted in Paragraph 7.

5. Adopted in Paragraph 10.

6. Adopted in Paragraph 9, except as to the explanation of the change, which is rejected as immaterial.

7. Adopted in part in Paragraph 10; otherwise rejected as immaterial and unnecessary, except as to the statement that managers commonly interview unqualified applicants. That statement is rejected as contrary tthe weight of Respondent's own witnesses' testimony.

8. Adopted in substance in Paragraphs 11 and 12, except the last sentence which is immaterial as there were no other candidates to be considered at that time.

9. Adopted in substance in Paragraph 13, except the statement that Ted Bender had a college degree. That statement is rejected as contrary to the evidence which showed his degree was an "associate" degree.

10. Adopted in substance in Paragraph 11.-

11. Adopted in substance in Paragraphs 14 and 15, except the statement that Tuttle told Tate that he lacked supervisory experience; that statement is rejected as controverted by

    more credible testimony.

12. Rejected as contrary to the weight of evidence.

13. Rejected as immaterial, except for the statement that a discrimination charge was filed; that statement is adopted in the preliminary background statement.

14. Adopted in substance in Paragraph 17, except for Earle Patrick's reason for contacting Henry Tate; Patrick's

explanation of the call was confused and, at best, incredible. [no paragraphs 15 and 16]

17. Adopted in part in Paragraph 18 (as to the promotion of 16 foremen/leads to supervisors), otherwise rejected as immaterial.

Docket for Case No: 85-003718

Orders for Case No: 85-003718