STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WEI J. WANG, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1215

) CITY OF GAINESVILLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on April 12-13, 1994, in Gainesville, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings, substituting for previously assigned Hearing Officer Larry J. Sartin.

APPEARANCES

For Petitioner: Mary C. O'Rourke

John C. Davis Spriggs and Johnson

324 West College Avenue Tallahassee, Florida 32301

For Respondent: Mr. Michael K. Grogan

Ms. Margaret Means

Coffman, Coleman, Andrews and Grogan Post Office Box 40089

Jacksonville, Florida 32203 STATEMENT OF THE ISSUE

Whether or not Respondent is guilty of an unlawful employment practice, to wit: failure to promote on the basis of age and national origin in violation of the Human Rights Act of 1977, pursuant to Section 760.10, et. seq. F.S. [1989].

PRELIMINARY STATEMENT

Petitioner filed a charge of discrimination with the Florida Commission on Human Relations (FCHR) on March 23, 1990, which was cross-filed with the federal Equal Employment Opportunity Commission (EEOC). It was subsequently amended.

On May 13, 1991, the EEOC entered a Determination: No Cause. On June 2, 1992, FCHR issued a Supplemental Investigative Report recommending a No Cause Determination. On August 6, 1991, Petitioner requested an investigatory determination from FCHR. On October 7, 1992, FCHR issued its Determination: Cause, despite an FCHR investigatory report recommending no cause. Respondent requested reconsideration. On January 29, 1993, FCHR issued a Redetermination: Cause. Petitioner filed a Petition for Relief, which was referred to the Division of Administrative Hearings, pursuant to Section 120.57(1) F.S.

Hearing Officers Robert T. Benton and Larry J. Sartin, sequentially assigned hearing officers, ruled on all interlocutory motions as reflected by orders in the file. The only one of these orders that has on-going significance at this stage of the proceedings is Mr. Sartin's order of April 8, 1994, reserving the issue of attorney's fees and costs. 1/

At formal hearing, the Prehearing Stipulation was admitted as Hearing Officer Exhibit A. Respondent thereby renewed all affirmative defenses and a motion to dismiss. 2/

Petitioner presented the oral testimony of Gail Erny, Richard M. Cameron, Paul D. White, Cary Duane Hill, Linda Donnelly, Tom Bolduc, and Jim Dear, and testified in his own behalf. Petitioner's Exhibits 1, 2, 3, 4, 5, 6, 8, 9, 12,

13A, 13B, 14A, 17 19, 21, 22A, 22B, and 23 were admitted.

Respondent presented the oral testimony of Curtis Q. Holder, Paul D. White, Cory Duane Hill, Raleigh K. Alligood, and Richard M. Cameron. Respondent's Exhibits 1 (13C of Petitioner's notebook), 2 (13B of Petitioner's notebook), 3 (14B of Petitioner's notebook), 5 (16 of Petitioner's notebook), 6, and 7 were admitted.

At the close of Petitioner's case, Respondent moved to dismiss for lack of a prima facie case, and at the close of all evidence, Respondent renewed its two prior motions to dismiss. 3/ All three motions were to be resolved by this recommended order.

A transcript was filed on May 13, 1994.

On June 2, 1994, both parties filed proposed recommended orders. On June 8, 1994, Petitioner filed a response to Respondent's proposed recommended order. On June 15, 1994, Respondent filed its Motion to Strike Exhibit A to Petitioner's proposed recommended order and Petitioner's response to Respondent's proposed recommended order. On June 24, 1994, Petitioner filed a response to the motion to strike. By order of June 28, 1994, the motion to strike was granted. All proposed findings of fact within the parties' respective initial proposals have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner Wang was born in Manchuria, China on April 5, 1945. At the time of the allegedly discriminatory acts (1989-1990) Petitioner was 44 years of age.

   
   

2. Petitioner has a B.S. degree from Wisconsin State University at River Falls, majoring in physics and mathematics. He did graduate work in statistics at Arizona State University and in industrial engineering at the University of Buffalo, and studied electrical construction at Santa Fe Community College. He has a journeyman electrician's card.

   
   

3. Prior to working for the Respondent City, Petitioner was employed as an electrician by Regency Electric Co., Carlos Hope Electric, and Santa Fe Electric. He also had been employed by Synergetics as an electro-mechanic and had managed Popular Imports, Inc.

4. Petitioner began his employment with Respondent City of Gainesville, Gainesville Regional Utilities (GRU) on February 3, 1986 as a Power Plant Operator Trainee at the City's Deerhaven Power Plant.

   
   

5. Petitioner progressed to the position of Power Plant Operator I on May 18, 1987. He remained at that level through the date of formal hearing in 1994.

   
   

6. Petitioner had received the following ratings in his performance evaluations: 1987 - 6.1, 1988 - 6.0, 1989 - 5.4. Petitioner had received an on-the-job back injury in November 1988 which he believed affected his performance and lowered his 1989 performance evaluation. All his evaluations were no less than the "meets standards" level.

   
   

7. Standard operating procedure is that when a position became vacant in the Electric Systems group at GRU, the department in which there was a vacancy would submit an application to Richard Cameron, head of Electric Systems, who would review the application and submit it to the General Manager of Public Utilities, who would then forward the application to GRU's Budget and Finance Department. Once Budget and Finance verified that the vacancy existed and that there were funds to support the position, it would submit it back to the General Manager who would submit it to Human Resources. Eventually, the position, if approved, would be posted for persons to bid on the job.

   
   

8. In July 1989, the City advertised the position of Meter Technician Apprentice for which Petitioner applied. The position required a high school diploma "supplemented by course work in Electrical Engineering or Engineering Technology; or any equivalent combination of education and experience which provides knowledge of basic math related to the testing of electrical measuring devices, electrical theory, electrical schematics, and the ability to connect, test and determine the accuracy of meters."

   
   

9. A Meter Technician Apprentice works under the supervision of a Meter Technician and assists in the installation, maintenance, testing, calibration, and repairing of electric meters and associated equipment.

   
   

10. There was no published requirement for a certain degree of proficiency with the English language, but the greater weight of the evidence is that a Meter Technician Apprentice is required to be able to communicate with (understand and convey information to) a customer for whom s/he is checking the meter or verifying the installation of a meter. It is also necessary for Meter Technician Apprentices to be able to get along with and communicate with co- workers and electrical workers in cooperating utility companies. To that extent, an applicant's ability to deal with the public is a factor in determining which applicant is most qualified for the position.

    
    

11. Petitioner's education, training, and experience met the published baseline qualifications for Meter Technician Apprentice applicants.

    
    

    The First Selection Process

    
    

12. In August 1989, Petitioner applied for the position of Meter Technician Apprentice in the Electric Systems Operations Department. GRU gave a written examination in order to determine each candidate's abilities and establish a candidate pool for the position of Meter Technician Apprentice. The written examination was prepared by Duane Hill, Superintendent for Electrical Metering and Equipment Maintenance, and Raleigh Alligood, supervisor in the

    Electrical Maintenance Department, of the Electric Systems Operations Department of GRU. Mr. Hill was the supervisor of the division in which the Meter Technician Apprentice would work and Mr. Alligood's immediate superior.

    
    

13. The test was reviewed and approved by Human Resources personnel only for content validation. The test was administered and scored by Human Resources personnel, but was only used to create a pool of applicants to be interviewed, and then the subsequent interview counted 100 percent. Those applicants with the highest scores received oral interviews with Duane Hill and Raleigh Alligood.

    
    

14. Messrs. Hill and Alligood wrote the interview questions and conducted the interview of each candidate together. Hill asked all the questions aloud and only Hill filled out the interview form. No answer key was used.

    
    

15. The interview form for the first selection process contained eight questions, each of which was worth a maximum of five points. One question dealt with past experience, one with education and training, and six were situational questions.

    
    

16. During the first oral interview, Petitioner and Thor Wishart both received 3 points for their past experience. Petitioner received 4 points for education; Wishart received 3 points.

    
    

17. Duane Hill initially awarded the Meter Technician Apprentice position to Thor Wishart, who scored highest overall in the interview. Mr. Wishart is a white, native-born American who at all times material was in his twenties and twenty years younger than Petitioner. Mr. Wishart took a voluntary demotion with a decrease in pay in order to accept the Meter Technician Apprentice position.

    
    

    The Step One Grievance

    
    

18. With the assistance of Tom Bolduc, a union steward with the local Communication Workers of America Union, Petitioner filed a timely grievance pursuant to the terms of the collective bargaining agreement (CBA). Originally, Mr. Bolduc did not know that the purpose of the test had been merely to establish a pool of candidates. In the grievance, Mr. Bolduc referred to "discriminatory practices in the hiring process." At the time this "promotional bypass" grievance was filed, Mr. Bolduc admittedly had no basis to allege discrimination in the hiring process based on national origin or age discrimination. Apparently, Mr. Bolduc used the word "discrimination" to generically cover any and all perceived inequities between management and labor.

    
    

19. Petitioner's promotional bypass grievance requested the award to Petitioner of the Meter Technician Apprentice position as a remedy for the perceived hiring process inequities.

    
    

20. Under the terms of the CBA which covered grievance procedures, Mr. Hill should have held a meeting with Petitioner. He did not. Instead, he summarily issued a "Step One Response," denying the grievance.

    The Step Two Grievance and First Grievance Meeting

    
    

21. Mr. Bolduc filed Petitioner's Step Two Grievance Form on October 6, 1989, the primary focus of which was his perception of unfairness in that the written test had been used to screen out individuals and the oral interview had counted 100 percent.

    
    

22. A grievance meeting was held this time about October 13, 1989. Considerable legitimate confusion exists in the testimony because the first meeting was held in response to the second level grievance. Where possible, the several witnesses' testimony has been reconciled so that all may be viewed to speak the truth, but where it was not possible to reconcile the testimony, the greater weight of the credible evidence has been utilized as set forth infra.

    
    

23. The focus of Mr. Bolduc's presentation at the second step grievance meeting was the content of the oral interview questions which Mr. Bolduc found inappropriate. Those present at the second step grievance meeting, the first meeting, were Richard M. Cameron, then-assistant general manager of GRU's Electric Systems Operations, Duane Hill, Petitioner Wang, Petitioner's union representative, Tom Bolduc, and Jim Dear, union Vice-President.

    
    

24. Petitioner's requested remedy remained the same. The union requested on his behalf that he be awarded the Meter Technician Apprentice position.

    
    

25. Partly because one of the interviewers, Mr. Alligood, had failed to take notes during the interview as requested by Human Resources, partly because the testing results had been used only as a filter, and partly due to inconsistencies for auditing screening purposes, Mr. Cameron decided that the proper remedy was to re-do the entire selection process, with the first selection process having no bearing on the second. It was not inherent in his decision to re-do the selection process that there had been discrimination in the first selection process.

    
    

26. In his written decision to re-do the selection process, Mr. Cameron wrote that there had been a "breakdown in communication ... between Human Resources and the interviewing department regarding the utilization of test results and the proper process to be followed in the final selection of the candidate," and "[A] faulty process gives no one individual claim to the position."

    
    

27. Mr. Wishart, who was already serving in the Meter Technician Apprentice position, filed a grievance of his own about October 25, 1989 because Mr. Cameron's decision to re-do the job selection from scratch displaced him from the position. His grievance was received by Mr. Alligood, who denied the requested remedy of leaving Wishart in the position. Mr. Alligood quoted Mr. Cameron to the effect that no one had a right to the position if the selection process had been flawed.

    
    

28. Tom Bolduc and Petitioner testified that during the second step grievance meeting, Duane Hill made discriminatory statements to the effect that Hill had not hired Petitioner after the first selection process because he, Hill, wanted someone who would be working there 30 years, an impossibility for Petitioner who was over age 40 at the time; because Petitioner sounded like a foreigner and he, Hill, did not think Petitioner would be accepted by the public; and because he, Hill, did not need someone with as much education as Petitioner. Mr. Bolduc and Petitioner also testified that Mr. Hill brought up Petitioner's prior back injury. 4/ Mr. Bolduc and Petitioner were both

    admittedly agitated at this meeting and their recollections of what, precisely, was said, is not the same on all points. They contradicted themselves and each other as to exactly what was said. Petitioner's candor and demeanor while testifying demonstrated that when under stress, he does not appreciate some subtleties of the English language, and he admitted that he first heard Mr.

    Bolduc accuse Mr. Hill of discrimination before he heard Mr. Hill's discriminatory statements for the first time. Mr. Bolduc was a clearly biased witness who deliberately presented himself as an employee's champion in any union dispute with management, regardless of the issue. Also, Mr. Bolduc was less than candid and truthful about his own educational background and admitted to a faulty memory about which events occurred at which meeting. Mr. Hill and Mr. Cameron denied that any discriminatory statements as recited by either Petitioner Wang or Tom Bolduc were made by Mr. Hill, but four years after the meeting, neither man could recall exactly what was said at the second step grievance meeting. Jim Dear testified clearly and concisely. He made a written record on November 29, 1989 of what had been said at the second step grievance meeting. Although not admitted in evidence, this written record was used to refresh Mr. Dear's recollection, and his testimony was clear that Mr. Hill stated at the second stage meeting that he did not want to hire an employee that was 40 years old or older; that he wanted an employee that could work 30 years or more; and that he had employees at the time who were over 40. Weighing the respective credibility of all participants' testimony, I find that the only discriminatory statements made by Mr. Hill at the second step meeting related solely to Petitioner's age and were no more and no less prejorative than those recalled by Mr. Dear. In making the foregoing finding of fact, I have also given weight and credence to other testimony that the Meter Technician Apprentice Program was developed to hire employees and "grow" them in that position, eventually elevating them, after training, into Meter Technician positions and that this procedure was developed in response to GRU's need to keep trained employees as long as possible, despite the City's liberal "20 years and out" retirement system.

    
    

    The Step Three Grievance, (Second Grievance Meeting) and the Second Selection Process

    
    

29. Petitioner filed a Third Step Grievance, directed at Mr. Hill's statements as he perceived them during the second step grievance meeting.

    
    

30. City Manager, Paul White, held a third step grievance meeting (actually the second meeting) on or about November 29, 1989, and by letter of December 6, 1989 approved Mr. Cameron's determination that the selection process should be redone.

    
    

31. The following people were present at the third step grievance meeting (actually the second meeting): Petitioner Wang, Mr. Bolduc, and the union President Linda Donnelly represented Petitioner's position, and Messrs. Cameron and Hill represented GRU management's position before Mr. White, City Manager.

    
    

32. The format of a third step grievance meeting is that the city manager poses questions to individuals who then respond. At this meeting, Mr. Hill and Mr. Cameron denied that any offensive statements had been made at the second step grievance meeting (first meeting). Mr. Bolduc and Petitioner insisted that discriminatory statements as to age, national origin (speech and language) and handicap (back injury) had been made. Management and union witnesses presented characteristically partisan testimony to Mr. White as to the nature and

    discriminatory effect of such remarks. All testimony of all witnesses at formal hearing attest to the third step grievance meeting before Mr. White being an extremely disharmonious one.

    
    

33. At formal hearing, Linda Donnelly, who had not been present at the first meeting and so had not heard what, if anything, Mr. Hill said at that time, testified that at the third step meeting, Mr. Hill again made comments regarding Petitioner's age and proficiency in English and that she clearly told Mr. White that such statements were discriminatory. To a degree, Mr. Bolduc supported her testimony on this point, but he became more vague as he testified and eventually he admitted he was completely unsure what statements were said anew or what were just repeated as allegations and denials in the third step grievance meeting (second meeting). Paul White, Mr. Cameron, and Mr. Hill credibly denied the discriminatory statements were made anew by Mr. Hill at the third step grievance meeting. All the participants in the third step meeting acknowledged that there was considerable discussion about what had been said or had not been said at the second step meeting and about how misunderstanding of Mr. Hill's comments may have occurred. Petitioner Wang admitted that at the third step meeting, the discriminatory statements of the second step meeting were just repeated. Giving Ms. Donnelly every benefit of the doubt, it is found that her testimony on this issue is not credible for the following reasons: Her evasive demeanor while testifying, as well as many of her responses, indicated that she was unable to distinguish between the allegations of discriminatory statements and the statements being made anew. Her other details, even as to something as simple as the seating plan of the meeting, were inconsistent with almost every other witness. She evidenced extreme partisan bias against the employer, and against Mr. White in particular. Also, as union president, she did not contemporaneously protest any new discriminatory statements by responding to the December 6, 1989 letter (see Findings of Fact 36, 37, 51 and 52). Therefore, contrary to Ms. Donnelly's testimony, I find that no overt discriminatory remarks of any kind were made anew by Mr. Hill at the third step grievance meeting.

    
    

34. In an effort to resolve the issue, Mr. White telephoned Mr. Dear and asked him if he had heard the statements in question at the second step grievance meeting. Mr. Dear responded that he had and related what he had heard. Mr. White asked Mr. Dear to put something in writing, which he did.

    
    

35. Nonetheless, Mr. White believed he had a "swearing contest" which could not be resolved. Mr. White, a black male, was mindful of minority issues. He was sensitive to the hurtfulness of discriminatory words and the frequency of misperceptions in grievance matters and union disputes. Even if Mr. Hill had made the alleged statements, the statements were inconsistent with Mr. White's experience with Mr. Hill. Mr. Hill was head of the division where the Meter Technician Apprentice would be hired. Mr. Hill, himself, was over 40 years of age, had repeatedly hired people over 40, and had hired one person over 50. In Mr. White's experience, Mr. Hill had never been grieved against for discrimination. 5/ Mr. White decided to approve Mr. Cameron's plan to re-do the selection process. With Mr. Cameron's input, Mr. White required the test and interview to count 30/70; he got the city EEO and Human Relations divisions involved to insure that separate notes and scoring were done; and he had another impartial interviewer added. He felt that having a minority city manager, such as himself, instructing GRU on this matter and looking closely at the situation was sufficient to insure a fair process and resolve the promotional bypass grievance, but he found no discrimination with regard to the hurtful words.

36. In his December 6, 1989 letter, Mr. White stated in pertinent part as follows:

    
    

    Department management acknowledged an error

    in the use of the written test of the selection process and has since negated the appointment and readvertised the position. The Department has not admitted any errors or wrongdoing relative to any claims by the Grievant charging discrimination; however, management is extremely sensitive to the perception that discrimination

    may have been a factor either based on race or age.

    
    

    Article 9.2 [CBA section dealing with discrimina- tion based on age, sex, race, color, religion, national origin, political affiliation, handicap, marital status, or union membership]. No discrimination was found.

    
    

    The grievant and union felt that if a test is administered, the score should count toward the overall qualification of the applicant.

    The use of a test for screening versus selection is not set. However, in the re-advertisement and selection of this position, I am directing the Human Resources Department to use a test as a part of the selection procedure.

    
    

    To address the concerns raised by Mr. Wang con- cerning racism, I am directing that the office of EEO be involved through the entire selection process to ensure Mr. Wang of fair and equitable

    treatment based on his qualifications. [Bracketed material does not appear in the original exhibit but is added by the undersigned for clarity]

    
    

37. The December 6, 1989 letter and the subsequent second selection process solution apparently satisfied the union, because it filed no response to the letter and did not further pursue any allegations either with regard to the issue of promotional bypass or with regard to the discriminatory statements allegedly made at either the second or third grievance meetings.

    
    

38. Regardless of what was or was not said by Mr. Hill at either stage grievance meeting, the first job selection process was voided, Mr. Wishart was removed from the position and returned to his old job, and Petitioner was permitted to compete again in a second selection process which involved all new advertising, testing, and interviewing.

    
    

39. Petitioner chose to compete again in the second selection process. No one in management forced him to go through the retesting process.

    
    

40. In the second selection process, the applicants took a different written examination, composed by Duane Hill and Raleigh Alligood and approved by Human Resources. The written examination counted for 30 percent of the applicant's total score, the oral interview counted 70 percent.

41. As a result of the second examination, four individuals were selected to proceed to the interview stage. These individuals were Petitioner, Thor Wishart, Stacey Burke (white female) and Dave Pickens (white American-born male).

    
    

42. At the second selection process, Duane Hill and Raleigh Alligood were again interviewers, but a new and disinterested party was also added to the interview process. Curtis Holder, a Substation Relaying Operations Manager, was neither aware of why the interview process was being redone nor that Petitioner or anyone else had filed a grievance. In the second selection process interviews, Mr. Hill asked the questions out loud but each interviewer's interview sheet had an answer key and each interviewer independently graded the interviewees based on their answers to the written questions which had been formulated by Mr. Hill and Mr. Alligood.

    
    

43. Mr. Holder testified that the second promotional process was different from the type of promotional selection process his division used because its inquiries as to the applicants' past experience were very explicit and because of its point system for the educational requirements, but this testimony does not discredit either the first or the second interview process. Mr. Holder also testified that other divisions use such a process. His own division usually picked up past experience from applicants' resumes or job applications and might use the interview 100 percent for good attitudes. His description of what his division usually did was very similar to the first selection process originally scrapped by Messrs. Cameron and White in response to Petitioner's grievance.

    
    

44. Also, Article 22.2 of the CBA specified that tests may be used, but performance evaluations, physical condition and mental attitude, and affirmative action goals shall be considered in promotions. The first process, which was thrown out, did not assess performance evaluations. Mr. Hill proposed, and Human Relations approved, that in the second process each applicant's last two performance evaluations should be averaged and the average considered. Mr. Hill was complying with the CBA. Mr. Hill played no part in Mr. Wishart's or Petitioner's prior evaluations. Mr. Wishart's 1988 evaluation was 7.1. His 1989 evaluation was 7.4. They exceeded Petitioner's scores. Ms. Burke's evaluations were the highest of these three competitors.

    
    

45. It is undisputed that neither Raleigh Alligood nor Curtis Holder said or did anything of a discriminatory nature. Neither Mr. Holder nor Mr. Alligood was present at either the second or third stage grievance meeting to hear any discriminatory statements by Mr. Hill, and although it is reasonable to believe Mr. Hill and Mr. Alligood discussed all the grievances before the second selection process began, both Mr. Alligood and Mr. Holder credibly denied that Mr. Hill influenced their independent scores on the second selection process in any way.

    
    

46. Thor Wishart had the highest combined score of 69.86; Stacey Burke had the second highest combined score, 63.40; Petitioner had the third highest combined score, 62.20; and Dave Pickens had the fourth highest score, 57.50. Taking out Duane Hill's scoring of the candidates, the result would remain the same.

    
    

47. Promoting Petitioner to the Meter Technician Apprentice position or not promoting him would not have altered any existing affirmative action goals or compliance.

48. A comparison of the CBA pay ranges reveals no pay loss to Petitioner based on non-promotion.

    
    

49. Thor Wishart was again selected for the position of Meter Technician Apprentice after the second selection process. The scores were reevaluated on January 5, 1990 by Gail Erny, Human Resources Recruitment and Employment Manager, who determined that since Mr. Wishart had been given credit by all three interviewers in the second selection process interview for the three weeks' experience he had gained as a meter technician apprentice after the first selection procedure, the scores on the second interview sheets should be recalculated by subtracting those points Mr. Wishart had gained for that experience. After those points were deducted, Mr. Wishart still had the highest score of 65.20.

    
    

50. Human Resources reviewed the written and oral questions and determined that they were content valid and contained no unlawful statements.

    
    

51. Neither Petitioner nor the union grieved the second selection process. As a layman, Petitioner is credible that he believed he could go no further in the grievance procedure with his charges of overt spoken discrimination after the third step meeting because the CBA precluded arbitration on these charges, but neither Petitioner nor the testifying union representatives are credible that they believed they could not start anew at stage one and grieve a second promotional bypass situation. It is far more reasonable to infer from the evidence as a whole that, once assured that all union members capable of filing grievances had fairly competed, the union abandoned Petitioner to his own devices. 6/

    
    

52. Petitioner unsuccessfully pursued a complaint with the City's Human Relations Advisory Board. On August 19, 1991, Petitioner brought a civil action in Alachua County Circuit Court for age and national origin discrimination under federal law, Title VII and the ADEA. On February 26, 1992, this civil action was dismissed without adjudication on the merits for lack of service of process.

    
    

53. Petitioner testified at one point that he was no longer interested in the Maintenance Technician Apprentice position. He also testified that he wanted the position if he could be assured he would not be harassed. Some of his ambivalence appears to be due to misunderstanding the questions and some is related to a subsequent grievance he filed as to a different promotional position which is outside the scope of these proceedings. I resolve the discrepancies in his testimony to the effect that he wants the Meter Technician Apprentice position or any improved position.

    
    

54. Since 1991, wage increases for GRU have been delayed because of CBA negotiations.

    
    

55. The Meter Technician Apprentice position is part of a formal apprenticeship program. In order to become a certified Meter Technician, one must complete approximately 45 correspondence courses and all in-house modules. Although Mr. Hill testified that he had never known an apprentice not to complete the courses and modules for certification, apprentices progress at each one's own rate and own initiative and the amount of pay in the apprentice position is geared, in part, to such progress.

56. At the time that Wishart was awarded the Meter Technician Apprentice position in October 1989 and in February 1990, Petitioner was making $11.4464 per hour or $915.73 biweekly. Effective May 28, 1990, Petitioner was making

    $12.5596 per hour or $1,004.77 biweekly. Effective May 27, 1991, Petitioner was making $13.5403 per hour or $1,083.23 biweekly.

    
    

57. Mr. Wishart began the Meter Technician Apprentice position February 1, 1990 earning 13.1875 per hour or $1,055.00 biweekly. On January 3, 1991, Wishart received a six month merit increase to $14.2258 per hour. On August 6, 1991, he was promoted to Meter Technician upon completion of the progressive training program and began to earn $14.9460 per hour.

    
    

58. Since standard raises were stalled in 1991 and Mr. Wishart's raises prior to promotion were geared in part to progress up the training ladder due to his own initiative, I find that anyone starting as a Merit Technician Apprentice, including Petitioner, could only count on the base pay at which Mr. Wishart started in the Meter Technician Apprentice position.

    
    

    CONCLUSIONS OF LAW

    
    

59. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S. The renewed first motion to dismiss upon grounds of alleged untimeliness and lack of subject matter jurisdiction due to the prior Circuit Court case and filing the Petition for Relief is denied for the reasons previously set out in Hearing Officer Benton's order of August 30, 1993. Neither those grounds nor laches and estoppel as affirmative defenses bar this claim.

    
    

60. This cause is governed by Section 760.10(1)(a) F.S., covering discrimination upon national origin and/or age. Petitioner is a member of those protected classes.

    
    

61. Respondent is an employer within the definition of the Act.

    
    

62. Petitioner seeks the position of Meter Technician Apprentice, backpay, and attorney's fees and costs. If Respondent prevails, Respondent seeks attorney's fees and costs. The issue of attorney's fees and costs is reserved pursuant to the terms of the April 8, 1994 order.

    
    

63. Petitioner urges that Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) enunciates the burden of proof to be applied herein to the effect that if the employee presents evidence of statements by persons in the decision making process which may be viewed as directly reflecting the alleged discriminatory attitude, that evidence is sufficient to permit the inference that the attitude was more likely than not the motivating factor, and that where the employer has taken illegitimate and legitimate factors into a decision, the burden is upon the employer to demonstrate, by a preponderance of the evidence, that it would have made the same decision regardless of the illegitimate factors.

    Petitioner's argument requires a determination that the statements in one or both grievance meetings were discriminatory and not random. See, Young v.

    General Foods Corp. 840 F.2d 825 (11th Cir. 1988).

    
    

64. Respondent urges that the burden of proof is upon Petitioner to prove by a preponderance of the evidence a prima facie case of discrimination, and thereafter, Respondent must "produce evidence" of legitimate, nondiscriminatory reasons for its actions, whereupon, the burden springs yet again and Petitioner, to prevail, must demonstrate that the employer's proffered reasons are merely

    pretextual. See, St. Mary's Honor Center v. Hicks, U.S. , 113 S. Ct. 2742, 125 L.Ed. 2d 407 (1993). In accord, see, Chandler v. Florida Department

    of Corrections, 582 So.2d. 1183 (Fla. 1st D.C.A. 1991).

    
    

65. I conclude that Petitioner is correct as to the burden of proof. Because overt discriminatory statements about age were made by Mr. Hill in the second step grievance meeting (first meeting), the burden then shifted to Respondent to prove that the second promotion process was not discriminatory to Petitioner, pursuant to the Price-Waterhouse module of proof. I also conclude that Respondent has met this burden. In doing so, I have also rejected Petitioner's argument that under the circumstances of this case, Petitioner was entitled to an award of the position after the first selection process.

    
    

66. Respondent has gone forward to show by a preponderance of the evidence that despite the age discriminatory comments of Mr. Hill, Mr. Hill had a history of not actually discriminating against job applicants upon the basis of age. Respondent also affirmatively showed that in the first selection process, Petitioner was actually scored higher than Mr. Wishart in the education category.

    
    

67. If the third step grievance meeting had established age or national origin discrimination by Mr. Hill, it was incumbent upon GRU to nullify his prejudices in the second selection process. Although at that time, Mr. White found no discriminatory statements had been made, he nonetheless took significant steps to insure that there was no discrimination in the second selection process.

    
    

68. Under these circumstances, and absent clear proof Petitioner was the most qualified applicant in the first selection process, GRU was not required to award the position outright to Petitioner. Petitioner's argument that Mr. Hill's involvement in the second selection process so tainted it as to constitute discrimination in the form of a promotional bypass is rejected.

    
    

69. Respondent also has shown by a preponderance of the evidence that the same ultimate decision with regard to the second promotional process would have been reached even without the presence of the discriminatory factor, Mr. Hill. See, Lee v. Russell County Board of Education, 684 F. 2d 769 (11th Cir. 1982). The second selection process utilized a standardized system which complied with the CBA and with Human Resources oversite. Petitioner failed to "grieve" this result. He has not shown here that he was the most qualified applicant for the position for which he was rejected. All applicants were subjected to the same system, and upon completion, the highest scoring applicant was selected, even after Human Resources factored out Mr. Wishart's job experience earned during the three weeks he served after the first job selection process.

    
    

70. Discriminatory comments with regard to Petitioner's speech and understanding which were not part of a bona fide job requirement were not proven. Petitioner has waived his back injury as any basis for his discrimination claim. However, I conclude (contrary to Mr. White's original determination), that Respondent has established that discriminatory age-related statements were made in the second step grievance meeting. The remedy for these statements is that Respondent be ordered to discipline Mr. Hill and to continue taking steps to insure that no such statements are repeated and no discrimination in the promotional system flows therefrom in the future. Since Mr. Hill has retired since this case began, the actions Respondent has already taken with regard to the second job selection process can only be supplemented by placing a reprimand in Mr. Hill's personnel file.

71. The foregoing conclusions inherently resolve the first, second, and third motions to dismiss and address all affirmative defenses contained in the answer.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order

(1) requiring Respondent to place a reprimand for his discriminatory statements in Mr. Hill's personnel file and (2) denying Petitioner's Petition for Relief as to the promotion and pay related thereto.

RECOMMENDED this 11th day of October, 1994, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 11th day of October, 1994.

ENDNOTES

1/ This ruling is to be distinguished from a bifurcation of liability (whether or not an unlawful employment practice was imposed against Petitioner) and damages (what recompense Petitioner, if successful on the liability issue, might be entitled to from Respondent). The latter type of order was not entered, and the de novo evidentiary hearing on April 12-13, 1994 encompassed both Petitioner's allegations of liability and damages. Only the issue of entitlement to, and amount of, attorney's fees and costs, dependent upon which party prevailed on the merits of the case, was reserved.

2/ The motion to dismiss was for "lack of subject matter jurisdiction and supporting pleadings" upon the following theories: 1) Petitioner's bringing prior suit in civil court bars this administrative proceeding, 2) the petition for relief is time-barred. The affirmative defenses within the answer included reasons 1) and 2) supra; plus 3) there are inconsistent allegations, demand, and relief sought, 4) some of the subject matter is exclusive to the workers' compensation forum and thus barred, 5) there has been no loss of pay or emolluments and the non-promotion was based on non-discriminatory business reasons so this action or the remedy of back pay is barred, and 6) laches and estoppel.

3/ See also n. 2.

4/ It is noted that there is no remedy provided under Chapter 760 F.S. for discrimination on the basis of being "overqualified." It is also noted that although Petitioner had received an on-the-job back injury and believed it

affected his performance and his 1989 performance evaluation (see Finding of Fact 6), he specifically waived discrimination on the basis of handicap/disability as any part of his FCHR charge/petition for relief.

5/ Mr. White's experience is only eight years in duration, but Mr. Hill's testimony is unrefuted that he had never been otherwise grieved against for discrimination.

6/ At some point, Stacey Burke also filed a grievance. Mr. Wishart had grieved the re-test decision. See Finding of Fact 27.

APPENDIX TO RECOMMENDED ORDER 93-1215

The following constitute specific rulings, pursuant to S. 120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-8 Accepted.

9 Accepted in principle, but modified as stated in Finding of Fact 10 since there was considerable testimony as to the need for Meter Technician Apprentices to interact with other technicians in the public and private sectors.

10-13 Accepted.

1. Accepted but subordinate and not used.

2. Accepted that another employee took exception and Wishart was reprimanded; the race of the complaining employee was not shown on the record. The proposal is rejected as a finding of fact because it is immaterial. Mr. Wishart made no decisions regarding his own promotion over Petitioner and the "racial incident" apparently involved Mr. Wishart pointing out that a white employee, not a black employee, resembled a Ku Klux Klan member in a newspaper photograph. Also, prior to promoting Wishart, Hill and Alligood investigated the incident and accepted Wishart's supervisors report that it was a meaningless incident.

16-31 Accepted, but unnecessary, subordinate and/or cumulative material was not utilized. Also, proposal 24 contains some isolated material out of context and therefore is misleading. Both employees had similar on-the-job experience at GRU, per their personnel files. See Findings of Fact 6-23, and 44.

32 Immaterial and also not supported in whole by the record. There were no answer keys the first time around, as Bolduc and others clarified elsewhere in the record.

33-34 Accepted, except that unnecessary, subordinate, and/or cumulative material has not been utilized.

35-36 Accepted in part and rejected in part upon the greater weight of the credible evidence in Findings of Fact 21-28. It is noted that only Mr.

Bolduc, from a different division, considered this a bench job. See Finding of Fact 10.

37-38 Accepted in part and rejected in part. Unnecessary, subordinate and/or cumulative material has not been utilized. Legal argument has been excluded. Mr. Alligood's participation in the first process was clarified elsewhere in the record. The several motivations in requiring a new process were not complete until after December 6, 1989. See Findings of Fact 22 and 25- 26.

39-42 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

43-47 Rejected in Findings of Fact 29-37 because not proven as stated.

Also, part of proposal 46 is an improper commentary of one witness on another witness' credibility.

1. Accepted. See, Findings of Fact 37 and 51-52.

2. Accepted but not utilized because subordinate and/or cumulative to the facts as found. See Findings of Fact 38-50.

3. Rejected as out of context and contrary to the greater weight of the evidence and covered in Findings of Fact 30 and 35.

51-52 Accepted.

53-57 Accepted but material which was immaterial, unnecessary, subordinate, and/or cumulative to the facts as found was not utilized. See Findings of Fact 38-50.

1. Rejected in part as not proven; see Findings of Fact 10 and 28. The remainder is rejected as unnecessary, subordinate and/or cummulative to the facts as found.

2. Accepted as modified in Finding of Fact 43 to more closely conform to the record as a whole.

3. Rejected because not proven as stated. See, Finding of Fact 44.

4. Accepted.

62-67 Covered in Findings of Fact 51-52 and in the Preliminary Statement as necessary. Unnecessary, subordinate and/or cumulative material and mere legal argument has not been utilized.

68-69 This commentary by witnesses on each other's credibility is contrary to law even though objections were not timely made by the parties. See Tingle v. State, 536 So. 2d 202 (Fla 1988). It is not reputation testimony under Section 90.609(1) F.S. and is rejected because it is probative of nothing.

70-71 Rejected in part as subordinate and unnecessary and in part as non-dispositive. Some is rejected as a mischaracterization of the exhibits. See Findings of Fact 55-58.

1. Covered in Finding of Fact 53.

2. Covered in the Preliminary Statement and in the Conclusions of Law.

Respondent's PFOF:

1-12 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

13-17 Accepted in part and rejected in part in Findings of Fact 27-28,

37 and 51 upon the greater weight of the credible evidence. Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized. Legal argument and mere comparisons of testimony have been excluded, as has been the witnesses' assessments of each other's credibility. See, Tingle v. State, 536 So. 2d 202 (Fla 1988).

18-24 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

25-26 Accepted in principle as set out in Finding of Fact 28, for the reasons stated there. Mere legal argument has not been utilized. The witnesses' assessment of each other's credibility is not reputation testimony, is non-probative, and was not considered. See, Tingle v. State, 536 So. 2d 202 (Fla 1988).

27-28 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

1. Accepted in part and rejected in part in Finding of Fact 51-53.

2. Covered in Findings of Fact 48 and 54-58. Legal argument was noted but not utilized as fact. Matters not proven were rejected.

3. There is no Proposed Finding of Fact 31.

4. Accepted.

33-34, 36-37 Covered only as necessary in the Preliminary Statement and the Conclusions of Law. Otherwise accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

35 Accepted.

38-39 Accepted, but as these are basically quotations from exhibits and/or orders of the FCHR or constitute Respondent's summation or legal argument, they are not adopted as Findings of Fact. See, Conclusions of Law.

COPIES FURNISHED:

Mary C. O'Rourke John C. Davis Spriggs and Johnson

1. West College Avenue Tallahassee, FL 32301

   
   

   Mr. Michael K. Grogan Ms. Margaret Means

   Coffman, Coleman, Andrews and Grogan

   P.O. Box 40089 Jacksonville, FL 32203

   
   

   Sharon Moultry, Clerk Human Relations Commission

2. John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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: 93-001215

Orders for Case No: 93-001215