STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA C. KNITTEL, )

)

Petitioner, )

vs. ) CASE NO. 92-1908

)

CROFT METALS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on October 23, 1992, in Sanford, Florida.

APPEARANCES

For Petitioner: Timothy R. Eves

1656 Eagle Nest Circle

Winter Springs, Florida 32708

For Respondent: Ned N. Julian, Jr.

STENSTROM, McINTOSH, JULIAN, COLBERT, WHIGHAM & SIMMONS, P.A.

200 West First Street, Suite 22 Post Office Box 4848

Sanford, Florida 32772-4848 STATEMENT OF THE ISSUES

The central issue in this case is whether Respondent discriminated against the Petitioner in violation of Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

This case began on June 14, 1989, when the Petitioner filed a charge of discrimination against the Respondent which alleged that Respondent had failed to hire her for a position for which she was qualified on account of her sex, female, and her marital status, single. The Florida Commission on Human Relations entered a determination on November 20, 1991, that found cause for Petitioner's complaint. More specifically, the Commission determined that the Petitioner had shown a prima facie violation of the Human Rights Act of 1977, Section 760.10, Florida Statutes, and that Respondent had failed to substantiate legitimate, nondiscriminatory reasons for the actions.

When efforts to conciliate the Petitioner's complaint failed, the Petitioner requested an administrative review and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on March 26, 1992.

At the hearing, the Petitioner testified in her own behalf and presented the testimony of Joseph Spaziani, a former executive vice-president for Respondent. The Petitioner's exhibits numbered 1, 2, and 3 were admitted into evidence. The Petitioner also proffered affidavits from individuals formerly employed by Respondent, Timothy R. Hobbs, Doyle S. Cannon, and Joyce Morehart Hobbs. Those affidavits, although not admitted into evidence, have been proffered for the record as Petitioner's exhibits numbered 4 through 7. The Respondent objected to the admissibility of the affidavits on the basis of hearsay.

Vic Donati, corporate personnel director for Respondent, testified on behalf of the Respondent. The Respondent's exhibits numbered 1 through 9 have been received into evidence. After the hearing, a transcript was not filed.

The parties' proposed recommended orders have been considered in the preparation of this order and rulings on the proposed findings of fact are included in the appendix at the conclusion of this recommended order.

FINDINGS OF FACT

1. The Petitioner is a female of child bearing age.

   
   

2. The Respondent, Croft Metals, Inc., is an employer as defined by Section 760.02(6), Florida Statutes.

   
   

3. The Petitioner obtained an application for employment with Croft Metals, Inc. at that company's Oviedo, Florida facility in response to a sign located on the premises which indicated the Respondent sought clerical/secretarial help.

   
   

4. The Petitioner submitted her application to Tim Hobbs, vice-president for marketing and sales for Design Technologies International (DTI), a division of Croft Metals, Inc., in March, 1989.

   
   

5. The Petitioner was interviewed by Tim Hobbs and Stan Cannon, the president of DTI, for the position of technical secretary with DTI; and for a possible opening as secretary to the parent company's CEO, Mr. Bancroft.

   
   

6. At the time of Petitioner's interview the position of technical secretary was filled by Carol Dorsey. Ms. Dorsey had submitted her resignation to be effective March 29, 1989.

   
   

7. Ms. Dorsey subsequently withdrew her resignation prior to March 27, 1989.

   
   

8. The Petitioner was advised by letter dated March 27, 1989, that the position for which she was considered, the technical secretary position for DTI, was not open due to Carol Dorsey's withdrawal of her resignation, and that her qualifications exceeded the requirements for that position. She was also advised that the salary range for the position was $12,000 to $13,000.

   
   

9. The position of technical secretary subsequently became available when Carol Dorsey resigned on May 15, 1989, effective May 31, 1989. That position was subsequently filled by Ragan Debra Cole, a single woman of child-bearing age.

   
   

10. The Respondent placed an advertisement in the Orlando Sentinel which ran on May 19 and 20, 1989. The advertisement read:

    Private Secretary for office of a national multi-plant corporation. Must be capable of taking accurate shorthand and performing other duties of an experienced secretary.

    Substantial salary plus excellent fringe benefit package and company paid retirement. Five day week, excellent working conditions. Application by letter only. Croft Metals, Inc., R & D Center, Post Office Box 219, Oviedo, FL (greater Orlando) 32765.

    
    

11. The position represented by the advertisement for private secretary was subsequently filled by Joyce Marie Morehart, an unmarried female of child bearing age. The private secretary position, which was for Mr. Bancroft, was filled several weeks after Petitioner's interview.

    
    

12. In March, 1989, Petitioner was not aware of the advertisement for the private secretary position which would run in May, 1989, but was made aware of the possible future opening during the interview with Mr. Hobbs.

    
    

13. Neither Tim Hobbs nor Stan Cannon would have hired an applicant for employment as private secretary for Mr. Bancroft in March, 1989. They were not authorized to do so. The position which could have been given to Petitioner in March, 1989, was not available after Ms. Dorsey elected to stay on with DTI.

    
    

14. On July 14, 1989, there were fourteen female employees employed at the Oviedo, Florida facility of Croft Metals, Inc. Seven were single, five were married and two were divorced.

    
    

15. At the time of her interview with Mr. Hobbs and Mr. Cannon, Mr. Bancroft entered the room and asked Petitioner questions regarding her marital status and her intentions regarding possible future child-bearing. Such questions, and the answers given by Petitioner, were not the basis for Petitioner not receiving the job with DTI.

    
    

    CONCLUSIONS OF LAW

    
    

16. Section 760.10, Florida Statutes, provides in pertinent part:

    
    

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

       1. To discharge or to 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 individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

17. In this case, the Petitioner has not shown that she was not hired on account of her sex or marital status. To the extent that Mr. Bancroft made an improper inquiry into the Petitioner's marital status and intentions regarding having children and, presuming such inquiry was the basis for initially not considering Petitioner for the technical secretary position, the record in this case established that the job opening for which Petitioner interviewed was not, in fact, available. The secretary who held the position did not leave the

    company until May, 1989. By that time, Petitioner had found work elsewhere and the second position (Mr. Bancroft's secretary) was being advertised.

    
    

18. More important, in each instance, Respondent hired female employees who fell within the same protected class for which Petitioner claimed discrimination; that is, female, of child bearing age. Had Respondent's former employees testified as to the motives or mindset of the company against such hirings, perhaps Petitioner could have established a predisposition of discrimination. As it is, Respondent has articulated legitimate, nondiscriminatory reasons for the conduct it exhibited. First, the job for which Petitioner interviewed was not available after the employee decided to stay; second, the position with Mr. Bancroft did not become available until May, 1989; a position, only Mr. Bancroft would have selected the applicant to fill.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing Petitioner's charge of discrimination.

DONE AND RECOMMENDED this 21st day of January, 1993, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1908

The Petitioner submitted a seven paragraph "final order;" its numbered paragraphs have been treated, for purposes of this appendix, as proposed findings of fact. Accordingly, the rulings are as follows:

1. Paragraphs 1 and 2 are accepted.

   
   

2. With regard to paragraph 3, it is accepted that Hobbs and Cannon interviewed Petitioner for a job with DTI and that they told her of a possible opening with Mr. Bancroft; otherwise rejected as not supported by the weight of the evidence.

   
   

3. Paragraphs 4 and 5 are accepted.

   
   

4. Paragraph 6 is rejected as contrary to the weight of the evidence.

5. Paragraph 7 is accepted but is a conclusion of law, not fact.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 1 through 3, 5, 6, 7, 9, 10, 11, 12 and 15 are accepted.

   
   

2. Paragraph 4 is rejected as irrelevant.

   
   

3. With the clarification that the letter to Petitioner advised her that the salary range for the position was $12,000 to $13,000, paragraph 8 is accepted.

   
   

4. With regard to paragraph 13, the Petitioner would not have foreseen the advertisement running in May (her interview was in March), however, she was made aware of the possible opening for Mr. Bancroft when she interviewed. Accordingly, paragraph 13 is rejected as contrary to the weight of the evidence.

   
   

5. With regard to paragraph 14, it is accepted that neither Hobbs nor Cannon had the authority to hire the secretary for Mr. Bancroft; otherwise rejected as contrary to the weight of the evidence.

   
   

6. Paragraphs 16 and 17 are accepted but are irrelevant.

COPIES FURNISHED:

Timothy R. Eves

1656 Eagle Nest Circle

Winter Springs, Florida 32708

Ned N. Julian, Jr. Stenstrom, McIntosh, Julian

Colbert, Whigham & Simmons, P.A.

200 West First Street--Suite 22 Post Office Box 4848

Sanford, Florida 32772-4848

Margaret Jones, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4113

Dana Baird, General Counsel Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4113

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-001908

Orders for Case No: 92-001908