STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROYCE A. PAULEY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4387

)

CITY OF TAMPA, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on November 15, 1989, in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gardner W. Beckett, Jr., Esquire

123 Eighth Street North St. Petersburg, FL 33701

For Respondent: Thomas M. Gonzalez, Esquire

James M. Craig, Esquire

P. O. Box 639 Tampa, FL 33601

STATEMENT OF THE ISSUE

The issue in this case is whether the City of Tampa (Respondent) unlawfully discriminated against Royce A. Pauley (Petitioner), based upon race, by failing to promote him to the position of "electrical inspector I" in November, 1987.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on his own behalf, and introduced fourteen exhibits. The Respondent called Richard Coane, Personnel Director, Nick D'Andrea, Jr., Manager of Inspectional Services, and Chris E. "Gene" Scaglione, Chief Electrical Inspector. The Respondent introduced three exhibits.

The transcript of the hearing was filed on November 29, 1989, and the parties requested, and were granted, an extension until January 5, 1990, to file their proposed recommended orders. The Appendix to this Recommended Order contains a ruling on each timely filed proposed finding of fact.

FINDINGS OF FACT

1. Petitioner, a white male, began employment with Respondent as a "maintenance repairer II" on March 3, 1987.

2. Respondent is an employer within the terms of the Florida Human Rights Act of 1977, as amended, found at Sections 760.01 through 760.10, Florida Statutes. In filling positions within its various departments, Respondent follows a uniform system which is initiated by completion of Form 263, entitled "Request for Position Change", by the department that has a position vacancy. The department identifies the positon it has available, as well as its requirements, and then forwards Form 263 to the Budget Office for authorization. Finally, it is forwarded to the Personnel Division for its approval, and for the preparation of a list of eligible employees from persons who have an application on file. The Personnel Division sends Form 263 back to the requesting department for that department to conduct interviews and to make the hiring decision. Part III of Form 263 contains a place for the EEO Office to note "underutilization" derived from a statistical comparision, based upon race and sex, of individuals in positions with the Respondent's "expectations" for a particular job classification. The underutilization notation "1 B/M" means that the EEO Office has determined that there is an underutilization of one black male for the vacancy being advertised.

   
   

3. On or about September 11, 1989, the Respondent advertised a "current opening" for the position of "electrical inspector I" (Position 2601), in response to which the Petitioner timely filed an employment application. Other applicants for this position included Alfred Trujillo, a hispanic male, John Michael, a white male, and Wayne Shabazz, a black male. The Form 263 for this position was approved by the Personnel Division and returned with a list of eligibles, including Petitioner, Trujillo, Michael and Shabazz, and with the notation, "EEO Underutilization, 1 B/M".

   
   

4. Trujillo was selected for this position and was offered employment with Respondent. He initially accepted, and passed his physical examination. However, before beginning his employment, Trujillo decided to decline this position. Thereafter, Michael was offered the position, but he also declined due to a schedule conflict with a course he was teaching in St. Petersburg at the time. After further considering the remaining applicants, Shabazz was selected for, and accepted, this position.

   
   

5. On or about April 5, 1988, Petitioner filed a complaint of discrimination with the Florida Commission on Human Relations against Respondent alleging that he had not been selected for promotion to the position of "electrical inspector I" due to his race. Petitioner is white, and he contends that Shabazz, who is black, was selected for this position because of his race due to the Respondent's designation of this position as "EEO Underutilization, 1 B/M". Petitioner's position is that this underutilization notation indicates that the Respondent had predetermined that it would only hire a black male for this position. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, on or about December 28, 1988. However, a supplemental investigation was conducted by an investigative specialist with the Commission who determined, on or about May 11, 1989, that Respondent's stated position with regard to Shabazz's selection was pretextual and racially motivated. Petitioner has filed a Petition for Relief alleging discrimination by the Respondent in employment practices based on race, and this matter was referred to the Division of Administrative Hearings by the Commission for formal hearing.

   
   

6. While Trujillo, Michael and Shabazz were interviewed by Nick D'Andrea, Manager of Inspectional Services, and Chris E. "Gene" Scaglione, Chief Electrical Inspector, for this position of "electrical inspector I", Petitioner

   was not. This was due solely to the fact that Petitioner had been interviewed by D'Andrea and Scaglione within the prior six months when Petitioner applied for the position of Chief Electrical Inspector, for which he was not selected.

   
   

7. During this previous interview, Petitioner had been asked specific questions about his knowledge of the electrical code book (Book 70, National Fire Protection Association Manual). Petitioner did not demonstrate to D'Andrea or Scaglione a sufficient knowledge of the electrical code, and lacked the ability to fully and correctly answer questions about the code which were posed to him by Scaglione, who has approximately 37 years of electrical experience. Scaglione determined from a review of previous employment which Petitioner showed on his application for this position, as well as his answers to questions in his interview for the Chief Electrical Inspector position, that Petitioner did not have a minimum of ten years experience in electrical contracting required for all electrical inspector positions by Section 553.22(3), Florida Statutes.

   
   

8. No affirmative contacts were made by Respondent's representatives to Petitioner's previous employers to verify his prior electrical experience prior to their decision to offer the "electrical inspector I" position to Trujillo, Michael and Shabazz, rather than Petitioner. However, no efforts were made to verify any of these other applicants' prior experience either. Scaglione and D'Andrea took the prior experience listed by all applicants on their applications at face value, and made no attempts to contact previous employers. Petitioner was treated no differently than other applicants in this regard.

   
   

9. Specifically, Petitioner was not credited for his prior experience with the Navy Seabees, Compton Electric of Huntington, West Virginia, Harris-McBurney Telephone Contractors, and as qualifier for All-Pro Electric of St. Petersburg. Scaglione's decision to exclude this prior experience was based upon Petitioner's answers to questioning about this experience in his interview for the Chief Electrical Inspector position, and also upon Scaglione's knowledge of the telephone industry, which is considered to be separate and distinct from electrical contracting. His decision to exclude Petitioner's experience with All-Pro was based on the fact that Petitioner admitted All-Pro did not do much work, and also because he was working full time with the Respondent at the same time he listed All-Pro as an employer. Without credit for these prior jobs, Petitioner had only approximately 80-90 months prior electrical experience, rather than the required 10 years, or 120 months.

   
   

10. Shabazz's answers to questions posed to him about the electrical code during his interview exhibited a working knowledge of the code, and an ability to communicate his knowledge. Previous employment shown by Shabazz on his application totaled more than ten years of electrical contracting experience, and based upon his answers to questions in his interview, as well as his previous experience, Shabazz was chosen over Petitioner after Trujillo and Michael declined the position.

    
    

11. At the time Shabazz was selected for this position, neither Scaglione nor D'Andrea understood what the terms "underutilization" or "1 B/M" on Form 263 meant. In addition, the evidence is uncontroverted that such notations are advisory only, and there was no effort by anyone in the Personnel Division, or elsewhere in the employ of the Respondent, to counsel or instruct Scaglione or D'Andrea to hire a black male for this position of "electrical inspector I". In fact, they initially offered the position to Trujillo, a hispanic male, and when he declined, they offered the position to a white male, Michael. It was only after these two individuals declined this position that they offered it to

    Shabazz, a black male. Their decision was based solely upon Shabazz's superior knowledge of the electrical code, as demonstrated in his interview, when compared with the knowledge Petitioner demonstrated in his previous interview within the past six months, and Shabazz's ten years of electrical experience as shown on the face of his application as compared with Petitioner's failure, on the face of his application, to meet the ten year experience requirement.

    Neither Shabazz nor Petitioner were certified as electrical contractors in Hillsborough County, where the City of Tampa is located, but possession of such certification was not a prerequisite for this position, as long as the person hired obtained certification within a prescribed period of time after being hired. Thus, race was not the reason Shabazz was selected for this position over Petitioner.

    
    

12. The Petitioner stipulated at hearing that he is no longer pursuing his charge of retaliation, and no evidence in support of said claim was offered.

    
    

13. In April, 1988, Petitioner applied for the position of "electrical inspector II" with the Respondent. As part of the selection process for this position, D'Andrea did telephone some of Petitioner's listed references, as he also did with the successful applicant, Fred Martin, a black male. This was a change in the procedure used to evaluate an applicant's prior experience from the process used when Petitioner applied for the position at issue in this case.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. This case is governed by the provisions of the Florida Human Rights Act of 1977. Sections 760.01 through 760.10, Florida Statutes. The Florida Act is patterned after Title VII of the Civil Rights Act of 1964 (42 U.S.C. s.2000e- 2), and, therefore, in its contruction prior judicial interpretations by the federal courts may be applied. School Board of Leon County v. Hargis, 400 So.2d 103, 108, n.2 (Fla. 1st DCA 1981).

    
    

15. The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). If the Petitioner sustains his initial burden, the Respondent would then have to establish some legitimate,

    non-discriminatory reason for the action taken in order to rebut the inference of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S.

    248 (1981). Thereafter, if Petitioner can show that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas, at 804-805; Burdine, at 256. See also Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986); School Board of Leon County v. Weaver,

    15 FLW D224 (Fla. 1st DCA 1990).

    
    

16. The evidence in the record does not support Petitioner's allegation of discrimination based upon race. Respondent treated Petitioner the same as other applicants for the position of "electrical inspector I", and provided ample and sufficient evidence in support of its action in this case.

    
    

17. Petitioner has failed to establish a prima facie case since he did not show that he meets the ten year electrical experience requirement of Section 553.22(3), Florida Statutes, has failed to show that Shabazz was less qualified for this position than Petitioner, and has also failed to present evidence that race was a factor in the Respondent's decision to hire Shabazz. In fact, the evidence contradicts Petitioner's assertion that Shabazz, a black male, was

    hired because he met the "underutilization" category. Instead, the evidence establishes that Respondent offered this position to a hispanic male and a white male, Trujillo and Michael, before offering it to Shabazz, and it was only because Trujillo and Michael declined this position that Shabazz and Petitioner were given further consideration.

    
    

18. Even if it could be concluded that Petitioner has established a prima facie case, Respondent has rebutted any inference of discrimination which might by drawn in this case, and has shown that its actions were not a pretext for discrimination. There was a reasonable and unrebutted basis for hiring Shabazz rather than Petitioner, based upon a comparison of their knowledge and experience. Shabazz's clearly demonstrated superior qualifications, as they were reasonably understood by Scaglione and D'Andrea at the time, is a legitimate, nondiscriminatory reason for them hiring Shabazz rather than Petitioner for this position of "electrical inspector I".

RECOMMENDATION

Based upon the foregoing, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charge of discrimination against Respondent.

DONE AND ENTERED this 31st day of January, 1990, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990.

COPIES FURNISHED:

Gardner W. Beckett, Jr., Esquire

123 Eighth Stret North St. Petersburg, FL 33701

Thomas M. Gonzalez, Esquire James M. Craig, Esquire

P. O. Box 639 Tampa, FL 33601

Margaret A. Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1925

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1925

Donald A. Griffin Executive Director

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1925

APPENDIX

(DOAH CASE NO. 89-4387)

Rulings on the Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 6.

3. Adopted in Finding of Fact 7.

4-5. Adopted in Findings of Fact 2, 7, 9, and 11, but otherwise Rejected as immaterial.

6. Rejected as irrelevant and immaterial.

7-8. Adopted in Findings of Fact 3, 4, 6 and 11, but otherwise Rejected as immaterial.

9-10. Rejected as simply a restatement or summary of evidence and not a proposed finding of fact.

1. Adopted in Finding of Fact 4, but otherwise Rejected as simply a summation of testimony and evidence.

2. Rejected as irrelevant based upon Finding of Fact 12, and otherwise as immaterial and unnecessary.

3. Rejected in Findings of Fact 8, 10 and 11, and also as speculative and as simply a statement from the evidence rather than a proposed finding of fact.

4. Adopted in part in Finding of Fact 8, but otherwise Rejected as immaterial and irrelevant.

5. Rejected as a partial excerpt from the record and not a proposed finding of fact.

6. Adopted in Findings of Fact 2, 11, but otherwise Rejected as simply a summation of testimony and evidence in the record.

7. Rejected as simply an excerpt of testimony and not a proposed finding of fact.

8. Adopted in Finding of Fact 13, but otherwise Rejected as immaterial and unnecessary.

9. Rejected as immaterial and irrelevant to the issue in this case regarding alleged discrimination in hiring

   to fill position number 2601, and as incompetent to prove any alleged pattern of discriminatory hiring practices.

10. Adopted in Findings of Fact 2, 11.

Rulings on the Respondent's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2. 3-4. Rejected as unnecessary.

5-6. Adopted in Finding of Fact 2.

7. Adopted in Finding of Fact 1.

8-10. Adopted in Findings of Fact 6, 7.

11. Adopted in Finding of Fact 8.

12-16. Adopted in Findings of Fact 7, 9.

1. Rejected as unnecessary

2. Adopted in part in Finding of Fact 9. 19-20. Adopted in Finding of Fact 6.

21-22. Adopted in Finding of Fact 3.

23. Adopted in Findings of Fact 6, 8. 24-26. Adopted in Finding of Fact 4.

27-33. Adopted in Findings of Fact 10, 11. 34-35. Adopted in Finding of Fact 13.

Docket for Case No: 89-004387

Orders for Case No: 89-004387