STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN M. CARNEY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7524

)

HIGHLANDS COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Avon Park, Florida, on March 24, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Robert H. Grizzard, II

Post Office Box 992

Lakeland, Florida 33802-0992

For Respondent: J. Ross Macbeth, County Attorney Highlands County

Post Office Box 1926 Sebring, Florida 33871-1926

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent discriminated against Petitioner in refusing to hire him.

PRELIMINARY STATEMENT

By Charge of Discrimination executed November 27, 1991, Petitioner alleged that Respondent refused to hire him as a Fire Coordinator because he had filed a complaint against the City of Avon Park for firing him due to alleged activities of his wife.

On November 13, 1992, the Florida Commission on Human Relations entered its Notice of Determination: No Cause.

Petitioner filed a Petition for Relief on December 14, 1992, alleging that Respondent refused to hire him as Fire Coordinator because he had filed a complaint concerning the involuntary termination from his prior employment by the City of Avon Park.

Respondent filed an Answer and Motion for More Definite Statement on January 11, 1993. The motion was denied at the commencement of the final hearing.

At the hearing, Petitioner called four witnesses and offered into evidence six exhibits. Respondent called one witness and offered into evidence nine exhibits. All exhibits were admitted.

The transcript was filed April 9, 1993. Respondent filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. On July 24, 1991, Respondent posted a Job Posting for the job of Fire Coordinator at an annual salary of $24,566 to $34,619. The County advertised the job in general runs of the Orlando Sentinel and Tampa Tribune, as well as local newspapers. The application deadline was August 14, 1991.

   
   

2. Learning of the job opening, Petitioner submitted an application. Based on background and experience, Petitioner was well qualified for the job.

   
   

3. Consistent with County practice, either the County Commission or the County Administrator had appointed a Selection Committee. The purpose of the Selection Committee was to interview qualified applicants, rate the applicants, and forward their scores to the County Commission. Because the Fire Coordinator is a department head, only the County Commission had the authority to hire the person for the job.

   
   

4. The Selection Committee included the chief of the Avon Park Fire Department, the chiefs of either a volunteer or another municipal fire department within the County, the County Administrator, the County Personnel Director, and the Director of the County Office of Management and Budget.

   
   

5. The Selection Committee chose five persons to interview, including Petitioner. During the interviews, the Personnel Director asked Petitioner about his relationship with the City of Avon Park. Petitioner admitted that he was preparing to file a job discrimination complaint against the City because he believed that he had been unfairly terminated due to some legal problems that his wife had had.

   
   

6. The Selection Committee rated the applicants after the interviews. Petitioner rated the highest. He was tied for the highest on the Personnel Director's tally sheet. The Selection Committee then forwarded the three top applicants to the County Commission for further action. These were Petitioner, Mr. Larry Butler, and Mr. Paul Goddard.

   
   

7. The County Commission is free to disregard the recommendations and recommence advertising for the position. Expressing some discontent with the selections, the County Commission unanimously voted to do just that when it considered the recommendations on September 3, 1991. The Commission directed that advertisements should be placed locally and in a regional edition of the Tampa Tribune, following which the applicants should be reduced to five and brought to the County Commission for interviews.

8. There is little evidence of the reasoning for the County's action. One Commissioner is a former Mayor of the City of Avon Park, and she may have expressed some reservations about Petitioner and another former employee of the City.

   
   

9. In any event, the County, on September 4, 1991, again posted the Job Posting for the Fire Coordinator's job. The ads were run as directed by the County Commission. The application deadline was September 20, 1991, which was a Friday.

   
   

10. On this round, the job of determining what applicants were sufficiently qualified to be granted interviews was borne by the County Administrator and the County Personnel Director. Receiving 14 applications, they determined that two of the new applicants were qualified to be interviewed. These persons were Mr. Mike McCann and Mr. Tim Eures, who was the son of an applicant from the prior round.

    
    

11. However, others were entitled to interviews due to County custom. One custom was that whenever the County Commission rejects the recommendations of a Selection Committee and readvertises the position, the persons earlier recommended are entitled to be interviewed during the second round. This meant that Petitioner was entitled to an interview, as were the two other persons recommended by the Selection Committee during the first round. In this case, Mr. Goddard affirmatively indicated that he did not want to submit to an interview with the County Commission, and Mr. Butler presumably showed no interest in the interview.

    
    

12. The other relevant custom in the County required that current County employees be allowed a full interview when they applied for a job. Mr. McCann was in this category, although he also was sufficiently qualified to earn an interview without regard to his current employment by the County. Also, Mr. Hank Eures, the father of Tim Eures and an unsuccessful candidate the first time, was extended an offer to interview with the County Commission because he was a current County employee.

    
    

13. The County Administrator and County Personnel Director decided on Monday, September 23, 1991, that Mr. McCann, Mr. Tim Eures, Petitioner, and Mr. Hank Eures were entitled to interviews with the Board of County Commissioners. Following the custom of setting the interview schedule at its next regularly scheduled Commissioners meeting, the Board, on September 24, chose the date and set aside time for the interviews to take place. It chose Tuesday, October 1, 1991.

    
    

14. On September 26, 1991, (September 27 for Mr. Hank Eures), the County mailed letters to each of the persons to be interviewed informing them of the date, time, and location of the interviews. The County Personnel Director normally telephones the candidates and gives them the same information, but it is unclear if he did so, or was able to do so, with respect to Petitioner.

    
    

15. Petitioner received the September 26 letter on Saturday, September 28. He had since become employed as a long- distance tractor-trailer operator and was booked for a long haul on October 1. He was unable to find a substitute for this job.

16. On Monday, September 30, Petitioner's wife called a County employee and informed her of Petitioner's scheduling problem. She explained that Petitioner could not attend the interviews and asked that his interview be rescheduled for another date.

    
    

17. As is customary with interviews, the County Commission refused to accommodate Petitioner, so the interviews proceeded without him as scheduled.

    
    

18. Following the interviews, the Commissioners selected Mr. Tim Eures as the new Fire Coordinator. The record does not permit a determination as to Mr. Tim Eures' relative qualifications as compared to those of Petitioner.

    
    

19. There is no evidence that Petitioner failed to be hired for the Fire Coordinator position due either to legal problems that his wife was having at the time or due to the filing of a charge of discrimination against Petitioner's prior employer, the City of Avon Park.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

21. It is an unlawful employment practice for an employer to fail or refuse to hire any individual because of such individual's marital status. Section 760.10(1). It is also an unlawful employment practice for an employer to fail or refuse to hire any individual because such individual has opposed an allegedly unlawful employment practice. Section 760.10(7).

    
    

22. There is no evidence that Petitioner's marital status played any role in the failure of the Highlands County Board of County Commissioners to extend a job offer to Petitioner. There is similarly no evidence that Petitioner's discrimination claim against the City of Avon Park played any role in the failure of the County Commissioners to offer him the subject job.

    
    

23. The only member of the Selection Committee who alluded to the job discrimination claim in fact recommended Petitioner as one of the two most qualified applicants. This is not the first time that the County Commissioners have rejected the names given them by their Selection Committee. The refusal of the Board of County Commissioners to reschedule Petitioner's interview is also consistent with past practice.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

ENTERED on April 20, 1993, in Tallahassee, Florida.

ROBERT E. MEALE

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 on April 20, 1993.

APPENDIX

Treatment Accorded Proposed Findings of Respondent 1-2: rejected as not findings of fact.

3-5: adopted or adopted in substance.

6: rejected as subordinate.

7: adopted or adopted in substance.

8: rejected as subordinate and recitation of evidence.

9-15 (second sentence): adopted or adopted in substance.

15 (third and fourth sentences)-17: rejected as irrelevant.

COPIES FURNISHED:

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149

Margaret Jones, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149

Robert H. Grizzard, II

P.O. Box 992

Lakeland, FL 33802-0992

J. Ross Macbeth County Attorney Highlands County

P.O. Box 1926

Sebring, FL 33871-1926

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: 92-007524

Orders for Case No: 92-007524