STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAYTON PROCTOR, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6114

) DEPARTMENT OF AGRICULTURAL ) AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Milton, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on October 2, 1990. The Division of Administrative Hearings received the hearing transcript on October 15, 1990.

Petitioner has not submitted proposed findings of fact. The respondent filed a proposed recommended order on October 22, 1990. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Pro Se

For Respondent: David G. Tucker, Esquire

Mayo Building

Tallahassee, FL 32399-0800 ISSUE

Whether respondent failed to hire petitioner as a fire tower lookout on account of his gender?

PRELIMINARY STATEMENT

After petitioner complained that respondent had failed to hire him because he was a man, the Florida Commission on Human Relations investigated. When the investigation eventuated in a "DETERMINATION: NO CAUSE" dated August 31, 1989, petitioner filed a petition for relief from an unlawful employment practice in accordance with Rule 22T-9.008(1), Florida Administrative Code, see Publix Supermarkets, Inc. v. Florida Department of Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), which the Commission referred to the Division of Administrative Hearings for hearing. See Section 120.57(1)(b)3, Florida Statutes (1989).

FINDINGS OF FACT

1. By written application dated August 11, 1987, petitioner Clayton N. Proctor sought a career service position with respondent Department of Agriculture and Consumer Services (DACS), at the Pace Fire Tower in Chumuckla that DACS's Black Water River Forest Center operates. Petitioner's Exhibit No.

1. Petitioner was one of four men who applied.

   
   

   1. Among twelve women who applied for work as a fire tower lookout were Denise Williams, who is black as well as female, and Tammy Griswold, who already worked for DACS as a fire tower lookout. Ms. Griswold worked under an other professional services contract, however, not as a career service employee.

      
      

   2. The day Mr. Proctor left his application at the Forest Center office, he spoke to a DACS forest area supervisor, James Furman, who told him that the job was not very well paid, and that women were more likely to stay with it longer. He gave petitioner the impression that he felt a woman would be more suitable than a man for the position.

      
      

   3. But petitioner was one of eight applicants who were eventually interviewed. In fact, only one male applicant was not interviewed, while six or seven of the women who applied were turned down without an interview.

      
      

   4. Mr. Furman, who conducted the interviews, recommended to Weldon Green, operations administrator, and John A. Webster, center manager, that Tammy Griswold be given the career service position, because of her demonstrated reliability.

      
      

   5. Messrs. Green and Webster responded that Ms. Williams lived closer than Ms. Griswold to the Pace Fire Tower. Sometimes fire tower lookouts "get called to come back . . . [after hours] to . . . go up and spot . . . fires . . . [and] give approximate readings and distances from the radio to the dispatcher so we can locate the fires." T. 59.

      
      

   6. Mr. Webster, who has the final say in the field, recommended to the Commissioner of Agriculture that Denise Williams be hired. DACS has "an Affirmative Action program, and [her race] did enter into it." T. 75. The recommendation was accepted and Ms. Williams was hired.

      
      

   7. When petitioner learned about the hiring decision, he telephoned Mr. Furman. In the ensuing conversation, Mr. Furman said that he could hire who he wanted to hire and again gave petitioner the impression that he felt women were better suited to work as fire tower lookouts.

      
      

   8. Later petitioner recounted his conversations with Mr. Furman to Mr. Webster. Mr. Webster assured him that DACS had no policy favoring women for fire tower lookout jobs. In fact, DACS has no such policy. Mr. Furman was subsequently disciplined for creating a misimpression about the Department's policy in this regard.

      
      

   9. Statewide, the ratio of fire tower lookouts who are men to those who are women is on the order of one to two or three. About 25 percent of all fire tower lookouts DACS employs are male.

      
      

   10. Mr. Proctor lived 30 miles further away from the Pace Fire Tower than Ms. Williams did, when DACS hired her. It takes fifty minutes or an hour to

       drive from Baker, where petitioner lived at the time, to the Pace Tower. Ms. Griswold, too, lived much closer to the fire tower than petitioner did.

       
       

       CONCLUSIONS OF LAW

       
       

   11. Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1989), to "fail or refuse to hire . . . or to otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual's . .

       . sex." Section 760.10(1)(a), Florida Statutes (1989).

       
       

   12. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area. Petitioner Proctor, like plaintiffs in Title VII actions, must "bear the burden of persuasion on the ultimate fact of discrimination." Walker v. Ford Motor Co., 685 F.2d 1355, 1359 (11th Cir. 1982). Here petitioner fell short of carrying the burden.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That the Florida Commission on Human Relations deny the petition for relief.

DONE and ENTERED this 13th day of November, 1990, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 13th day of November, 1990.

APPENDIX

Petitioner's proposed findings of fact Nos. 1, 2, 5, 8. 10, 11, 13, and 15 through 21 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed findings of fact Nos. 3, 4 and 6, there was some confusion in the record about the precise number of applicants.

With respect to petitioner's proposed finding of fact No. 7, the evidence showed that this was roughly true.

With respect to petitioner's proposed findings of fact Nos. 9, 12 and 14, evidence that Mr. Proctor was eliminated because he liked outdoor sports was unconvincing.

Copies furnished to:

David G. Tucker, Esquire Department of Agriculture &

Consumer Services

Mayo Building, Room 306 Tallahassee, FL 32399-0800

Clayton Proctor 726 Winton Avenue

Pensacola, FL 32507

The Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture &

Consumer Services The Capitol

Tallahassee, FL 32399-0810

Mallory Horne, General Counsel Department of Agriculture &

Consumer Services

515 Mayo Building Tallahassee, FL 32399-0800

Dana Baird, Acting Director

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32399-1570

Docket for Case No: 89-006114

Orders for Case No: 89-006114