STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEAN SPEAR, )

)

Petitioner, )

)

vs. ) Case No. 93-5856

)

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, n/k/a ) DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case, concluding on January 27, 1997, at Tallahassee, Florida, before

1. Michael Ruff, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

   APPEARANCES

   
   

   For Petitioner: Jack McLean, Esquire

   100 Peachtree Street, Northwest, Suite 600 Atlanta, Georgia 30303-1909

   
   

   Larry K. White, Esquire John W. Hedrick, Esquire

   1311-B Paul Russell Road, Suite 203 Tallahassee, Florida 32301

   
   

   For Respondent: Lawrence F. Kranert, Esquire

   Florida State Hospital, Building 249 Chattahoochee, Florida 32324

   
   

   STATEMENT OF THE ISSUES

   
   

   The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against because of her race (African-American) in not being selected for promotions and

   whether she was not selected because of her handicap (back injury).

   PRELIMINARY STATEMENT

   
   

   This cause arose from upon the filing of a petition by Jean Spear alleging, in essence, that she was discriminated

   against because of her race and because of her handicap in being rejected for promotion to four positions within the nursing discipline at Florida State Hospital, a facility operated by the Respondent. The claim was investigated by the Florida Commission on Human Relations and it issued a "Notice of Determination: No Cause." The claim was then filed with the Commission on September 21, 1994, and transmitted to this forum. After extensive, discovery-related delays caused by the parties and stipulated continuances by the parties, the cause came on for hearing as noticed.

   During the course of the hearing, the Petitioner called nine witnesses and presented thirty-two exhibits into evidence. The Respondent presented the testimony of three witnesses and had five composite exhibits admitted into evidence. Upon conclusion of the proceedings, the parties ordered a transcript thereof and requested an extended briefing schedule for submission of proposed recommended orders and later stipulated to an extension thereof which was granted. The parties submitted proposed recommended orders which have been considered in the rendition of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. The Petitioner is a black female. At times pertinent hereto, she was employed by the State of Florida, Department of Health and Rehabilitative Services (now known as Department of Children and Family Services), at Florida State Hospital in Chattahoochee, Florida. She has a disability or handicap involving a back injury. She was first employed by the Respondent in July 1976, as a Registered Nurse II and initially supervised two or three wards. The Petitioner also worked for Apalachee Community Mental Health Service in Quincy as a Team Leader during 1977-1978. She was a part-time relief nursing supervisor at Tallahassee Memorial Hospital between 1978 and 1979. She became a Registered Nurse III in March 1978 at Florida State Hospital (FSH) and became a full-time nurse there in 1979. She supervised an entire unit after that time and worked in several different units of the Forensic/Corrections Department as a Senior Registered Nurse beginning in November 1982 and lasting until March 1987. Between March and December 1987, she served as a Senior Registered Nurse Supervisor until her current assignment. She has been employed since December 1987 as a Registered Nurse Specialist Coordinator and remained in that position until her resignation due to disability retirement on January 25, 1994. She has a good employment record, earning consistent above satisfactory or "exceeds" performance standards ratings during her career.

   2. The Petitioner earned her Bachelor of Science Degree in Nursing (BSN) from Florida A & M University in 1976. She has since earned 21 hours toward a Masters Degree and took continuing nursing education courses at a time when the continuing education course work was not yet required. She is licensed by the State of Florida as a Registered Nurse.

      Petitioner's Disability

      
      

   3. On August 25, 1992, the Petitioner suffered a job- related injury to her back. The Petitioner was absent from work for some months, apparently receiving worker's compensation during this time. On January 27, 1993, she was cleared to return to light duty work at the hospital by her treating physician.

      The Respondent provided her with an appropriate light duty job assignment at which she remained through the balance of her employment with FSH.

   4. On June 18, 1993, the Petitioner was determined to have reached maximum medical improvement by her treating physician. She was thereupon discharged from further medical care by Capital Health Plan. On July 26, 1993, she filed an application for 100 percent "line of duty" retirement from the Florida State Retirement System. The State Office of Worker's Compensation thereafter approved her application for "permanent total disability" worker's compensation benefits, effective June 16, 1993, resulting from the injuries suffered on August 25, 1992.

   5. The Petitioner was absent from employment from June 4,

      1993 through January 27, 1994, inclusive, claiming 34 weeks of worker's compensation benefits for this time. Ultimately, and as part of her effort to obtain disability retirement, the Petitioner resigned from her employment with the Respondent on January 25, 1994. At the time of the Petitioner's resignation, the Department had an action pending to involuntarily terminate her from employment allegedly because of her inability to discharge her assigned job duties and responsibilities.

      Vacant Positions

      
      

   6. During the fall of 1992, a vacancy occurred in the position of Registered Nurse Supervisor, Forensic/Corrections at Florida State Hospital. This was in the facility known as the Corrections Mental Health Institute (CMHI). A career service system position description existed for this job which was developed by the State of Florida, Department of Administration. That position description required, among other things, that the incumbent hold a license as a registered nurse (RN) with the appropriate experience, education, licensure and nursing abilities. The position called for a minimum of 75 percent of the time expended in the job being involved with direct patient contact with forensic patients.

   7. The FSH advertised this position as position number 46392 in the HRS Job Bulletin. The application deadline was January 21, 1993. The minimum requirements for the job were licensure as an RN with three years of nursing experience. A

      bachelor's degree from an accredited college or university could substitute for one of the three years experience required. A bachelor's degree in nursing was not required for the job, however. For this and the other positions a "knowledge, skills and ability" instrument (KSA) was prepared, as required by applicable law, to provide for numbered items consisting of the knowledge, skills or competencies a person hired for each position would be expected to have. Position number 46392 included a KSA requirement of budget experience as being

      essential, since the position required the development, allocation and administration of that unit's nursing service budget.

   8. The job advertisement involving this position complied with existing HRS and FSH rules, policies and procedures. There was no evidence offered to show that it discriminated against any person as to race, national origin, or handicap and no person or class or persons was encouraged or discouraged from applying for the position. Neither employment with the Department nor FSH were prerequisites to application or acceptance of the position. Twenty-six applications were received for this position.

   9. The procedure for hiring a person in the state system and the FSH involves various tasks. First, the hiring authority must request the personnel office to fill the position. The hiring authority, from a class specification developed by the Department of Management Services (DMS), creates this specific position description which includes the specific duties of the position and the minimum qualifications established at DMS. The class specification contains generic KSAs and from the class specification and position description the hiring authority develops a KSA examination module. This module is created in three steps: (1) job analysis, where the position description is compared to the KSAs for choosing which KSAs will be searched- for when hiring the position; (2) development of a rating scale where the applicant's KSAs are compared against those developed

      for the position, to determine the applicant's relative qualifications; and (3) the development of KSA interview questions. According to the pertinent rule, KSAs must not reflect "easily learned" material or skills which can be rapidly learned on the job. The KSAs must also be job related.

   10. The scoring on the KSA application rankings form and on the interview questions, was 50 for a "superior level," 33 for "satisfactory level," and 17 for "acceptable level." The interview questions are the only ones which can be asked of applicants during the interview. The KSA examination module is transmitted to the personnel office, prior to the job being advertised. After the job announcement is disclosed, the applications are screened against the minimum qualifications for the position by the personnel office and those that are qualified are submitted to the hiring authority for screening against the developed KSAs for the position. This step is a paper review of the applications which is documented on the application review form filled out on each applicant. The application rankings are normally used to reduce the applicant pool to a smaller number, usually about five, who are then interviewed. The interview questions developed previously are asked of each interviewee, and their answers are rated against the 50-33-17 scale for their scores from each interviewer. The interview scores are aggregated, and the applicant with the highest interview score is selected for the job. A selection form is completed then which

       lists the top applicant, in the order of their scores, after the interview process.

   11. Each application for position 46392 was screened using the KSA instrument prepared in advanced, as required by applicable law, to determine which of the applicants was qualified for the job. The KSA criteria and the interview questions utilized were reviewed by the personnel office at FSH in advance of their use, to ensure compliance with HRS rules, regulations and policies, and EEOC guidelines. Points were then awarded to each of the applicants by the KSA examining committee. Applicant Z. Thompson, a white female nurse, was awarded a total of 233 points. The Petitioner, Jean Spear, was awarded a total of 165 points. Other black and white applicants ranked lower in point award amounts and some ranked higher, including black applicant Bethea, with 199 points.

   12. Based upon those scores, three applicants were selected to be interviewed for this position: Z. Thompson; D. Breeden, a white female Registered Nurse; and C. Bethea, an African-American female Registered Nurse. Applicants Thompson and Breeden had associate science degrees in nursing while applicant Bethea had a bachelor of science degree. The bachelor of science degree is a higher degree than an associate science degree and can offset a year of the experience requirement for this and the other positions. However, the bachelor of science degree does not automatically mean that the holder thereof has a higher level of qualification for the position when all the applicants' qualification attributes are weighed against the position

       requirements and considered together. The Petitioner was not selected for an interview for this position because she finished ninth in the overall KSA rankings for the position.

   13. The interview committee for this position consisted of three FSH employees: Joel Devolentine, the administrator in charge of the program; Alva Martin, the chief nursing consultant at FSH; and Harry Moody, Jr., an administrator at the Department of Corrections, Corrections Mental Health Institution (CMHI). Interviewers Devolentine and Martin are white and Mr. Moody is black.

   14. The interview were conducted on February 11, 1993. During the interview process, Mr. Devolentine asked the candidates questions which were prepared in advance. Each interviewed person was asked the same questions, in the same sequence. Each member of the interviewing committee scored the responses on forms provided using the scoring system designated and implemented for that purpose. Each member of the committee scored the interviewees independently and did not discuss the points awarded to those persons with the other members of the committee. Each made his or her entries on the interview form separate and apart from the other members of the interview committee, contemporaneously with the responses given by the applicants. Upon conclusion of the interviews, the score sheets were given to Mr. Devolentine by each member of the committee for tabulation. There is no evidence that points awarded were

       changed or modified in any way once they were awarded. The total numerical scores for each of the candidates interviewed, showed that Z. Thompson had the highest score. Black candidate C. Bethea had the next highest score, and white candidate D. Breeden had the lowest score.

   15. The preponderant evidence shows that the KSA's experience in budget issues and the KSA's requiring certification in behavior analysis were both directly related to the job in question and both KSA competencies or certifications were possessed by Z. Thompson and not by the other candidates interviewed nor by the Petitioner, who had not received enough qualification points for the position to be interviewed. Because she received the highest total number of points and met all the minimum requirements set forth in the position description in the HRS job bulletin, because she possessed more experience in budget issues and was certified in behavior analysis, Z. Thompson was selected to be awarded the job.

   16. The preponderant evidence shows that the hiring process as to this position was conducted in accordance with existing HRS and FSH rules, regulations, policies, and procedures. There was no persuasive evidence that any of the hiring and selection process was designed or used to favor one class of persons or one person over another by reason of race, ethnicity or handicap. Although there was testimony concerning comments made by various supervisory personnel at FSH to the effect that Z. Thompson

       should apply for this position or that it was intended in advance that she get this position, there was no persuasive evidence of such pre-selection of Z. Thompson by the hiring decision-maker.

   17. It is somewhat noteworthy that white interview committee member Alva Martin gave black candidate Bethea 380 points and white candidate Breeden 347 points, while black interview committee member Moody gave black candidate Bethea 448 points, and white and winning candidate Thompson 465 points. Committee member Devolentine gave winning candidate Thompson 516 points; next highest candidate D. Breedan, a white female, 482 points; and black candidate Bethea 448 points, the same number of points that black committee member Moody had given candidate Bethea. There is no definitive, persuasive evidence that race was a determining factor in the award of the job to candidate Thompson. There was no persuasive evidence as to this position that handicap was a factor in determining that the Petitioner did not get selected for an interview for the position nor selected for the position.

   18. Position number 34563 involved a vacancy occurring during 1992. The application deadline for the position was October 22, 1992. The minimum requirements for the job were licensure as a Registered Nurse and four years of nursing experience with one year of that experience requirement offset if a candidate had a bachelor's degree from an accredited college or university. The position description indicates that approximately 75% of the time expended in the job required direct patient conduct with forensic clients. This is the position known as Executive Nursing Director, Forensic/Corrections at

       Florida State Hospital. The position was advertised in the HRS Job Bulletin. The advertisement complied in all respects with existing HRS and FSH rules, policies, and procedures, and no person, or class of persons, was either encouraged to apply or discouraged from applying as to race, handicap or other status. Thirteen applications were received, and the screening and interview process described above was employed once again in accordance with HRS rules, regulations, and policies and EEOC guidelines. The screening used the KSA instrument prepared in advance for the position, as required by applicable law to determine which applicants were qualified for the job. That resulted in points being awarded and twelve out of the thirteen applicants being interviewed for the position.

   19. The interview committee consisted of four FSH employees: Robert Alcorn, the administrator in charge of the program; Alva Martin, chief nursing consultant at FSH; Richard Taylor, a unit director in the Forensic Services at FSH; and R.

       W. Myers, an administrator in the Forensic Services. Alcorn and Myers are white males. Ms. Martin is a white female and Mr. Taylor is an African-American male.

   20. The interviews were conducted on November 23, 1992, with interviewer Robert Alcorn asking all questions of all candidates. The questions were prepared in advance and the interview process included the private and independent deliberation and evaluation by each committee member, conducted

       as described above. There is no evidence that any points awarded were changed or modified in any way once they were assigned by each committee member. Upon conclusion of the interview process, Mr. Alcorn recommended the following persons for the position of Executive Nursing Director, Forensic/Corrections, as being most qualified for the job, by order of preference: (1) G. Cook with

       82.1 points; (2) Z. Thompson with 80.6 points; (3) B. Weems with

       
       

       74.6 points; (4) L. McMullian with 64.1 points; and (5) J. Spear, the Petitioner, with 61.0 points.

   21. Candidate Gwen Cook met all of the requirements of the position description in the HRS Job Bulletin and had more experience in forensic and emergency nursing than did the Petitioner. She received the highest total points and was offered and accepted the job.

   22. The KSA at issue as to this position required hospital emergency room experience, including certification in advanced cardiac life support. The position was executive nursing director in a medical-surgical psychiatric ward. Therefore, it was relevant to require, in a KSA for the position, that applicants have extensive knowledge of emergency medical procedures including management of airway obstructions, intubation defibrillator operation, etc., as well as the certification for advanced cardiac life support. It was a legitimate KSA requirement to specify hospital emergency room type experience, which Gwen Cook had in better degree than the

       Petitioner. The Petitioner did have psychiatric emergency care experience which was relevant, but the higher level of emergency and advanced cardiac life support experience possessed by Gwen Cook coupled with her additional forensic experience justified her selection for the position. The Petitioner was certainly qualified for the position, but Ms. Cook was more qualified, and there is no showing that the point rankings referenced above were improperly arrived at in violation of any rules, policies or statutes. There was no persuasive evidence that they were arrived at to the Petitioner's detriment for reasons of racial preference, ethnicity, or improper discriminatory consideration of the Petitioner's handicap. It was not persuasively demonstrated by the evidence that the advanced cardiac life support certification was a certificate that could be earned in a very short period of time, and thus it was not shown that it was an invalid KSA criterion.

   23. In 1992, a vacancy occurred in position number 04877. The FSH advertised this position in the HRS Job Bulletin. It was the position of Registered Nursing Consultant. The position application deadline was July 1, 1992. The position description for this position, which had been developed by the Department of Administration, required that the incumbent have appropriate knowledge, experience, education, and abilities in nursing principles, especially in the area of infection control. The description called for approximately 75 percent of the time

       expended by the holder of this position to be in direct patient contact with forensic clients. The minimum requirements for the job were licensure as a registered nurse with four years of nursing experience. A bachelors degree from an accredited college or university could substitute for one of the four years of experience required. Specific experience in infection control and epidemeology was essential. The job advertisement complied in all respects with existing HRS and FSH rules, policies, and procedures. Employment with the Department or with the Florida State Hospital was not a prerequisite to attainment of the position.

   24. Fourteen applications were received and each application was screened using the KSA instrument prepared in advance for that purpose, as required by law. This was used to determine which of the applicants were qualified for the job. Both the KSA criteria and the interview questions used were prepared and reviewed in advance of their use to ensure compliance with relevant law, in the manner delineated more particularly above.

   25. Points were awarded to the persons who applied for the job by the KSA examining committee in such a manner that the Petitioner received 232 points, with only applicant, Nora Howell, who received 300 points, being ranked higher. The Petitioner, was tied for second place in point awards with black applicant

       C. Bethea and applicant S. Harris. The remainder of the fourteen

       applicants all scored lower. Based upon those scores determined by the KSA examining committee, the six highest ranking applicants were selected to be interviewed for the position, including the Petitioner.

   26. The interview committee consisted of two FSH nursing professional employees: Kathy Wheeler, the administrator in charge of the program and Sue Calloway, a practicing registered nurse at FSH.

   27. The interviews were conducted on July 9, 1992. During the interview process, committee member Kathy Wheeler asked the candidates questions, which had been prepared in advance. Each person interviewed was asked the same questions by the designated interviewer, Ms. Wheeler. They were asked in the same sequence. Each member of the interviewing committee scored his or her responses to the questions on forms that had been provided using the scoring system designated and implemented for that purpose. There is no evidence that any member of the committee discussed the points he or she awarded to the interviewees with other members of the committee and no evidence that the entries on the interview forms were made other than separate and independently from each other member of the committee. There is no evidence that points awarded were changed or modified in any way once they were awarded. Upon conclusion of the interviews, all the scoring sheets were given to Ms. Wheeler for tabulation. The total numerical scoring for each of the applicants interviewed was: Nora Howell, 128.4 points; Jean Spear, 119.9 points; C. Bethea,

       111.4 points; V. Ramsey, 122.9 points; J. Collins, 118.8 points; and S. Harris, 111.4 points.

   28. One of the KSAs applicable to this position called for the person to be hired to have significant expertise in the area of infection control and epidemiology for this nurse consultant position. While the Petitioner remonstrates that this is not a legitimate KSA requirement because it is not directed related to

       the job and is an area easily learned on the job, the preponderant evidence reveals that indeed, it is directly relevant to this position and it is of significant importance.

       It is not a field or area of expertise which can be rapidly learned after hiring. Thus, the preponderant evidence shows that this KSA item or criterion is a legitimate one. The preponderant evidence shows also that successful applicant Nora Howell possessed this expertise to a greater extent than did the Petitioner. Thus, although the Petitioner was well qualified for the job in most respects, the qualifications of Nora Howell in this area exceeded those of the Petitioners according to the preponderant, credible evidence. This justified her being awarded a higher level of points in the screening and interviewing process than the Petitioner. Since she met or exceeded all the other position criteria which had been duly and legally adopted, it was justifiable for her to be offered and to accept the position instead of the Petitioner on these qualification-related bases.

   29. The application, screening, and interview process and ranking and scoring of points followed the procedure delineated by statute and rules and described in more detail above. There is no credible evidence that the hiring decision as to this position was made for any reason motivated by racial discriminatory intent or discrimination because of any handicap of any applicant. There is no clear evidence that "pre-

       selection" occurred as the Petitioner contends, but even if Nora Howell had informally been pre-selected for this position, there is no credible evidence that it had anything to do with racial or handicap discrimination against the Petitioner.

   30. During the fall of 1992, Florida State Hospital advertised the position of Senior Registered Nurse Supervisor for the Forensic/Corrections Department, position number 09671, in the HRS Job Bulletin. The position application deadline was January 21, 1993. The minimum requirements for the job were licensure as a registered professional nurse and three years of nursing experience. Here again, a Bachelor's Degree from an accredited college or university could substitute for one of the three years experience required. Experience dealing with forensically-committed patients was essential. The evidence shows that the job advertisement complied in all respects with existing HRS and FSH rules, polices, and procedures. The advertisement did not discriminate against any person or group or class of persons on the basis of race, handicaps, or other reasons. No person, or class of persons, was either encouraged or discouraged from applying by the advertisement. Neither was employment with the Department nor the hospital a prerequisite. Twenty-four applications were received. Each application was screened using the KSA instrument prepared in advance for that purpose by the procedure delineated above. In the KSA screening or examining process, applicant Patricia Powell scored 266

       points; William Dixon scored 250 points; and Jean Spear, the Petitioner, scored 249 points. Applicant Zilla Thompson scored

       323 points, S. Peoples scored 232 points, and Betty Thames scored

       
       

       233 points. These six top point winners in the KSA examining process were selected to be interviewed by the interview committee.

   31. The interview committee consisted of five employees: Steve Lacy, an administrator in charge of the program; Gwen Cook, a practicing Registered Nurse in the forensic services at FSH; Judy Wester, a direct care supervisor in forensic; Alva Martin, the chief nursing consultant at FSH; and Willie McLeroy, a forensic direct care supervisor at FSH. The interviews were conducted on February 1, 1993. During the interview process, interview committee member Alva Martin was designated to ask the candidates questions which were written, prepared, and approved in advance under the process already delineated above. Each person interviewed was asked the same questions by the same interviewer in the same sequence. Scoring was done independently by each member of the interview committee and the scores submitted to Steve Lacy of the committee for tabulation. There was no evidence that points awarded were changed or modified in any way once they were awarded by each member of the committee. Applicant Dixon was awarded 3127 points and Petitioner Spear was awarded 2276 points. That made the Petitioner rank fifth from the top point earner, Mr. Dixon. Mr. Dixon met all the minimum

       requirements set forth in the position description in the HRS Job Bulletin for the position. Mr. Dixon had more forensic nursing experience overall than did the Petitioner, having ten years versus the Petitioner's five years.

   32. The Petitioner offered no preponderant, persuasive evidence that the hiring decision for this job or for the other three jobs was racially motivated. The Respondent's position in response to the Petitioner's attempted prima facia showing of racial discrimination, to the effect that she is black and that the successful job applicants were all white, is that, in fact, the Respondent hired the persons it believed were most qualified for the job. In fact, the proof shows that as to three of the positions, already treated herein, the winning applicants were indeed the most qualified for the job. The proof shows that the Petitioner was most qualified for the job currently being discussed in the paragraphs next above, that is, position number 09671. Her denial of hiring for that position, however, was not shown to be due to any racially discriminatory intent given the proof culminating in the above findings concerning how the selection process operated in accordance with the rules and policies of the agency.

   33. The preponderant, persuasive evidence shows that the Petitioner was actually better qualified than Mr. Dixon, the nurse who was awarded the position. The expert testimony of

       Dr. Frank, corroborated by the testimony of witness Betty Thames,

       in particular, shows that the Petitioner was better qualified for this supervisory position number 09671 because of her more extensive educational and work-experience qualifications. She had more varied experience in the nursing profession in areas that were related to this job than Mr. Dixon had, in spite of his longer experience in the forensic department. The Petitioner was shown to have a superior ability in the area of implementing medications and psychiatric nursing treatment procedures because the Petitioner had demonstrated this ability in a broad variety of settings, with different kinds of patients, coupled with her three and three-quarter years of forensic supervisory experience. She is also superior in her skills and expertise regarding working as a contributing member of a multi-disciplinary team, functioning as a team leader and with consulting with families.

       She also has more experience as a liaison nursing person with jails and community health-related facilities or resources.

   34. Additionally, for position number 09671, KSA number one for that position indicated a desire for experience in a tardive dyskinesia clinic. Only Mr. Dixon had this experience of all the applicants for this position, so the Petitioner was not given credit for it in the screening and interview process. In fact, she had many of the same general skills and abilities. The specific emphasis on tardive dyskinesia experience was shown, however, through the testimony of Dr. Frank, as being unnecessary to this type of supervisory position.

   35. More importantly, in the interview for this Senior Registered Nurse Supervisor position (09671), there was a written interview question asked the Petitioner concerning her disability. That question was as follows:

       "6. Do you have any disabilities that would prevent you from lifting or working a 40-hour week or that would prevent you from performing this job? How many days have you missed in the past year due to illness? How many unscheduled absences did you have in the past year? Do you have any responsibilities commitments or activities that would

       prevent you from doubling on or changing your work days or weekends?"

   36. Witness Betty Thames for the Petitioner also stated that during the course of a telephone interview in which the interview committee chairman, Steve Lacy, questioned her, as the Petitioner's supervisor, concerning her attendance that he made a "nonprofessional remark" (in a negative vein) regarding the Petitioner's physical limitations to the effect that "It doesn't matter why she was out to me". This was related to a discussion between the two in the telephone interview concerning the Petitioner's work attendance history and her back injury. Lacy's statement was admitted into evidence as a "party admission exception" to the hearsay rule. He was clearly an agent of the Respondent and a key person in this hiring process.

   37. The Respondent was aware of the Petitioner's disability. She had injured her back on the job in August of 1992. She had been off work receiving worker's compensation benefits for the injury and, based upon her doctor's finding that

       she had reached maximum medical improvement, had been returned to work, apparently in early 1993, and given light duty involving work not requiring lifting more than 15 pounds, prolonged walking, stooping or bending. She reported this disability on her employment application for these positions. Her back injury clearly limited her in a "major life activity," such as lifting, walking, prolonged standing, or her level of mobility and strength in general.

   38. All of the positions for which she had applied were less strenuous than the position she had last held before going on retirement. This was testified to by the Petitioner as well as C. J. Brock, the Respondent's personnel director and Betty Thames, the Petitioner's immediate supervisor. Mr. Brock testified that her injuries would not normally be considered a negative factor for supervisory or consulting positions in nursing, which is the position at issue. In fact, after the Petitioner answered on all of her application forms "yes" to the question concerning whether she had a disabling or handicapping condition and had additionally written that her limitations involved lifting, bending, prolonged standing or walking, the personnel office still qualified her for the position at issue in this proceeding. In spite of that, the Respondent's agent in the hiring process still, at least as to position number 09671, formally asked her about her disability and handicap in the context of the above-quoted questions. The Petitioner maintains

       she was asked about this in each of her interviews for all four positions. Her testimony does not clearly show exactly what the nature of the questions were, if they were asked, and that self- serving testimony cannot serve as evidence of disability discrimination as to the other three positions, as it is not sufficiently preponderant credible and persuasive.

   39. The formal written questioning as to position number 09671, however, does show that the employer had a no doubt genuine, but for the reasons delineated below, illegal pre- occupation about the Petitioner's disability or handicap. There is no evidence of malicious intent in the above-quoted inquiry about the Petitioner's physical limitations or even in the statement attributed to Steve Lacy referenced above. The inquiring statement rather reflects a genuine but ill-advised concern by the Respondent about getting an employee in the

       subject position who might be absent from work excessively or be the source of other personnel problems due to her disability.

   40. The Petitioner has raised an issue concerning "pre- selection" by citing statements witnesses related at hearing, made by certain supervisory individuals involved to one degree or another in the hiring process for the four positions at issue. These statements purport that a certain person who ultimately got the job in question was the person the declarant involved wished to have apply for the job or a statement to the effect that the Petitioner need not apply because another person, such as, for instance, Nora Howell, was going to get the job. These statements were purportedly made before the hiring process started or was completed, and therefore were offered as evidence of illegal pre-selection, that is, illegal pre-selection in the context of the agency's rules. These statements were admitted as party admission exceptions to the hearsay rule.

   41. In terms of their credibility and persuasiveness, however, it is pointed out that they were not subject to cross- examination. Moreover, whether they are credible or not, they did not stand as probative of racial discrimination or disability discrimination because the statements could just as easily have been reflections of preferences based on friendship, which might be distasteful, ill-advised, or even illegal in another context but does not itself show racial animus or intent to discriminate based upon the Petitioner's disability. The statements might

       equally reflect an innocent statement or statements by these individuals which reflect their genuinely-held belief that the persons they purportedly favored were actually the best qualified for those jobs. It is thus found that these statements, as evidence of pre-selection, are largely immaterial to resolution to the issues in this case because they do not have any significant probative value in fact-finding as to the issues of racial or disability discrimination.

   42. The Petitioner was paid $1,544.68 bi-weekly through January 25, 1994, the date she retired. She was making $1,499.69 on a bi-weekly basis prior to September 30, 1993, back through the relevant period at issue. Her salary would have been increased a minimum of 10 percent if she had been hired at any of the four positions involved in this case. Because of the above findings of fact, she should have been hired in position number 09761. Thus, she should have had her pay increased by 10 percent from the hiring date for that position forward to the time when she retired. That hiring date would be shortly after the interview date for that position, of February 1, 1993, so her salary should have been increased 10 percent forward from that time with a cost of living increase of 3 percent beginning October 1, 1993, with such back pay and attendant upward adjustment in retirement benefits being awarded through her retirement date of January 25, 1994. There is no proof of compensatory pay, front pay or attorney's fees and costs in this

       proceeding.

       CONCLUSIONS OF LAW

       
       

   43. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding.

   44. The Florida Civil Rights Act of 1992 protects individuals from discrimination because of race and handicap. The Act prohibits unlawful employment practices by providing:

       It is an unlawful employment practice for an employer to discharge or to fail or refuse to hire any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion, sex, national origin, age, handicap or marital status.

       Section 760.10, Florida Statutes (1991)

       
       

       Race Based Discrimination

       
       

   45. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e-2. The United States Supreme Court has established the burden of proof to be met by a plaintiff/petitioner in employment discharge cases in McDonnell-Douglas v. Green, 411

       U.S. 792, 93 Supreme Court 1817, 36 L. Ed 2d 668 (1973). The Court in Bundy v. Jacksons, 641 F2d 934, 951 (DC Cir. 4 1991) modified the formula of the McDonnell-Douglas case for cases involving discriminatory refusal to promote. See also, Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991); School Board of Leon County v. Hargis, 400 So. 2d 103

       (1981); School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990); and Meyers v. Nassau County School Board, 15

       F.A.L.R. 1418 (DOAH 1992). The establishment of prima facie case for discriminatory failure to promote requires that the Petitioner establish that she belongs to a protected group; that she was qualified and applied for the promotion that she was considered for and denied the promotion; and that other employees of similar qualifications who were not members of the protected group were promoted at the time that the Petitioner's request was denied. Chandler at 1186.

   46. The Petitioner is black and qualified for the four promotional positions. She applied for each of the positions and was denied all four promotional positions. Each of the four positions was filled by a white employee. The Petitioner established therefore, a prima facie case for race based discrimination. The burden to go forward to articulate non- discriminatory reasons for its decision thus shifted to the Respondent.

   47. The evidence shows that the Respondent's reasons for not selecting the Petitioner for the four positions involved its belief, proven by preponderant, credible evidence as to three of the positions, that the persons hired for the jobs were better qualified than the Petitioner and other candidates, black and white. The particular KSAs in dispute in this proceeding attributable to three of the jobs in question were shown by

       preponderant, credible evidence to be legitimate requirements for that job and to be qualifications or experience components genuinely possessed by the applicants who were awarded the positions, with the exception of position number 9671. The Petitioner was qualified for all four jobs but the Respondent successfully established as to three of the positions that the person actually hired indeed was the best qualified under all relevant circumstances reflected in the preponderant evidence and above fact-finding. The manner in which the selection process was conducted, in accordance with relevant rules and policies of the Agency, including the fact that they were black supervisory committee members on two of the interview committees in question and that black applicants were rated by the various committee members higher than many white applicants by individual screening or interview committee members, and to some extent by the committees as a whole, shows, in its totality, that the hiring process was non-discriminatory as to race. Although black nurses, as opposed to black supervisors, were not on any of the interview committees this is not in itself an indicia of discriminatory motive. Fairness to black applicants can be ensured by multi-racial committees without minority races having to be represented in the same professional discipline as is involved in the job vacancy at issue. Under the totality of the circumstances represented by the preponderant evidence of record, culminating in the above findings of fact, it is likewise not

       shown that the fact that the forensic/corrections department employs 9-percent black supervisory nursing staff versus 31- percent average of such staff in the other departments of the hospital as a whole is indicative of any pattern of race based discrimination.

   48. The Petitioner assailed the Respondent's justification for the hirings made as a pretext for racial discrimination. The Petitioner maintains that the Respondent deviated from its own procedures in the screening and interview process and tailored the various skills represented by the KSAs for each position in order to ensure selection of the successful white applicants involved. The preponderant, credible evidence, however, as shown by the above findings of fact, establishes that the various KSA items or competencies were genuine and relevant requirements of the positions and that the possession of those qualities or qualifications by the successful white applicants helped them obtain the position but was not the only reason each was awarded the position. In fact, persuasive evidence shows that as to three of those positions they were indeed the most qualified applicants. As to position number 9671, KSA Number 1 expressed the desire for Tyrone Dyskenesia Clinic Experience. The emphasis on that experience was shown to be unnecessary to the performance of the job by the testimony of Dr. Frank, and the emphasis on that quality or qualification served to enhance the application of Mr. Dixon, the successful white candidate for the position, who was the only candidate who had that experience. In fact, the Petitioner had the same general kind of skills and abilities and otherwise were shown by the testimony of Dr. Frank and Ms. Thames to be better qualified for the position. The failure to hire the Petitioner for that position, however, as shown in the above

       findings of fact was not due to racial animus, although it can be attributed to discrimination on account of her handicap.

   49. The Petitioner, in attacking the respondent's justification as pretext, asserts a number of examples referenced in the above findings of fact which indicate to the Petitioner that the white applicants were pre-selected to be hired for those positions before the screening and interview process began. For the reasons delineated above this has been established not to be the case. Even if the white applicants who were successful were pre-selected in a way which violated the extant rules or policies concerning hiring and which even was due to friendship or favoritism, that does not equate to racially discriminatory motives. An employer may make an employment decision for a good reason, a bad reason, or a reason based upon erroneous facts, or no reason at all so long as it is not for discriminatory reasons. See Department of Corrections v. Chandler, Id. at 1187.

       Moreover, even though members of the selection or screening committees or others in the supervisory chain of command may have made statements indicating they had a pre-conceived notion of who they wanted to hire for the positions in question, it was not proven that the final hiring authority who made the ultimate decision, after the interview process, had indeed pre-selected those white candidates. Thus, in consideration of the preponderant, credible evidence, supporting the above findings of fact and in consideration of the above cited authority, including

       the Chandler decision and the cases cited therein, it has not been established that any of the hiring decisions to the Petitioner's detriment were made for racially discriminatory reasons. The Petitioner has not met its burden of showing that the asserted reason of the employer was pre-textual and was for reasons of racial animus. See, St. Mary's Honor Center v. Hicks, 113 Sup. Ct. 2742, 125 L. Ed. 2d 407 (1993).

       Disability-Based Discrimination

       
       

   50. The Respondent challenged the Petitioner's standing to maintain her claim because she was administratively determined to be permanently disabled under the State workers' compensation statute, Section 440.15(1)(b) (1991), on June 17, 1993, and then resigned her Registered Nurse Specialist Coordinator position on January 25, 1994, to accept disability retirement under the State retirement statute, Section 121.09(4)(a), Florida Statutes. However, the workers' compensation and disability determinations are not determinative of whether a person is handicapped under the Florida Civil Rights Act of 1992 or is a "qualified individual with a disability" under the ADA. 42 U.S.C. 12112. See Overton v. Reilly, 977 F2d 1190 (7th Cir. 1992), wherein the court held that a person could have a disability for social security act purposes and still be a "qualified individual with a disability" for rehabilitation act purposes. In Anzalone v. Allstate Insurance Company, 5 AD CAS.(BNA) 223 (E.D. LA 1995) the court recognized the differences between the ADA definition of

       "qualified individual with a disability" and a disability insurance plan's definition of "total disability" in refusing to grant a defendant's motion for summary judgment. In Marvello v. Chemical Bank, 923 F Supp. (S. D. NY 1996) it was held that a

       judicial bar of an ADA claim for an individual who applied for disability benefits could undermine the policy goals of the ADA, without advancing the separate goals of the Social Security Act.

   51. Extant case law reveals that timing, context and the statutory design or purpose are relevant factors to the determination of whether workers' compensation or retirement finding of total and permanent disability bar a handicap claim under the Florida Civil Rights Act. The analysis of handicap discrimination must focus on a time period in which the Petitioner applied for and was denied the promotion to the position she sought. The question is, was she able to perform the essential functions of the applied-for positions at the time she applied for them and at the time the hiring decisions were made. The Petitioner maintains she was ready and able to perform the work for the promotional positions, and the record supports her contention. The Workers' Compensation division of the Florida Department of Labor determined that she was permanently and totally disabled for workers' compensation purposes on June 17, 1993, and the State Division of Retirement determined that she was permanently and totally disabled for retirement purposes after January 25, 1994. Both those disability determination dates occurred after the Petitioner applied for the four promotional positions in question. She applied in August of 1992, for the first of the relevant four positions, a Registered Nurse Consultant position. In January 1993, she applied for the

       last of the four positions, the Senior Registered Nurse Supervisor position. Each of the four positions was filled before either of the above-referenced disability determinations were made. It is axiomatic that the decisions on the ability of the Petitioner to perform the duties of the promotional positions are made at the time she applied. The decision should not be based on speculation that she may not be able to perform the job in the future, nor should the decisions be directly or retroactively justified with information that was not available at the time the decisions were made. After June 17, 1993, the Petitioner was enrolled in a job rehabilitation program and resigned from employment, but only after the Respondent sought to terminate her for inability to perform her duties, at which point she sought disability retirement. The purpose of the rehabilitation program was to return her to her job as a Registered Nurse Specialist Coordinator with the Respondent.

       These facts support the conclusion that neither the finding of workers' compensation disability nor retirement disability should bar the Petitioner's claim. In Lundstedt v. City of Miami, 5 AD CAS. BNA 568 (S. D. Fla. 1995) an employer moved for summary judgment concerning a 1992 ADA claim for re-instatement to a position by a Plaintiff. The motion was based on workers' compensation and retirement disability findings dating to 1978 and 1982. The court denied the employer's motion for summary judgment and held that it was "perfectly consistent for Plaintiff

       to assert that he was disabled in the past, but after time he became rehabilitated and is now able to return to work."

   52. The Petitioner's retirement decision resulted in part because Respondent was moving to discharge her based upon purported inability to perform her duties. She testified that she did not really want to resign but wanted to return to work and her decision to seek workers' compensation disability resulted from the denial of promotional positions that would have accommodated her job limitations. Dr. Little, the Petitioner's doctor, testified that she was able to perform the functions of the promotional positions with her limitations through June 17, 1993, and there is no question that the Respondent qualified her for the four positions in question, knowing of her disability limitations. In fact, both witnesses Block and Thames established that, given the non-strenuous nature of the supervisory positions in question, the Petitioner would be able to perform them with her limitations.

   53. The statutory purposes and design of the workers' compensation statute and retirement statutes are different and distinct from the Florida Civil Rights Act of 1991. The factual inquiry that must be conducted in this proceeding concerns whether or not the individual can perform the specific job in question with or without accommodation. School Board of Nassau County v. Arline, 480 U.S. 273, 287 note 17 (1987). The workers' compensation statute and the retirement statutes on the other

       hand focus on whether a person can work generally, do not consider whether the job can be performed with or without accommodation, and presume disability for certain types of injuries. See, eg. Robinson v. Neo Data Services Inc., 94 F3d 499, 502 note 2 (8th Cir 1996) and Pegues v. Emerson Electric

       Company, 913 F Supp. 976, 980 (N. D. MI 1996) which involve the finding of disability by a State workers' compensation commission which the court held did not foreclose an ADA claim. Thus, in light of the above authority, for purposes of Florida's "Handicap Act" an inquiry must be made by the undersigned into the Petitioner's abilities to perform the duties of the promotional positions unrestrained by consideration of Workers' Compensation and Division of Retirement determinations of disability.

   54. In order to establish a prima facie case of disability discrimination under the Florida Civil Rights Act the Petitioner must show that she is a handicapped individual under that Act, that she is otherwise qualified for the position sought, and that she applied for the job in which the employer was seeking applicants. She must then show that she was rejected for them despite otherwise being qualified for them and that the rejection was based on her handicap. See, Brand v. Florida Power Corp., 633 So. 2d 504, 508 (Fla. 1st DCA 1994); McDonnell-Douglas v. Green, Supra; Bundy v. Jacksons, supra; Department of Corrections v. Chandler, supra; and Myers v. Nassau County School Board, supra.

   55. The Petitioner established that she is disabled because of her back injury. The injury meets the definition of handicap because it restricts frequent lifting, bending and prolonged standing, all "major life activities." The definition of a handicapped individual under the Florida Civil Rights Act is "one who has (1) a physical or mental impairment which substantially

       limits one or more of such persons life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment." Brand, at 508.

   56. The Petitioner is otherwise qualified for the promotional position sought based upon her BSN degree, 18 years of work experience including 12 years of supervisory experience and more than 3 years of forensic, supervisory experience and job performance. She was qualified for each of the jobs and witnesses Thames and Dr. Frank established that she was the most qualified for position number 9671. Her last supervisor testified that based on her familiarity with the promotional jobs, that the Petitioner could perform them within the limitations imposed by her doctor. The positions would accommodate the Petitioner's handicap. Based on those facts, the Petitioner is otherwise qualified for the job.

   57. For the reasons stated in the above findings of fact the Respondent's denials of the promotional positions were not based on her handicap as to three of the positions, but rather the hiring of the other individuals was legitimately based upon the peculiar requirements of those positions and those individuals' superior qualifications for them. The record does not clearly establish, for the reasons mentioned in the above findings of fact that improper questions, and therefore motives, concerning the Petitioner's disability were asked or employed during the interviewing and hiring process. The Respondent

       clearly, however, as to position number 9671, the Senior Registered Nurse Supervisor position, asked the Petitioner about her handicap and whether she had any disabilities that would prevent her from lifting, or working a 40-hour week, or that would prevent her from performing the job and the other elements of the handicap-related questions quoted in the findings of fact. This was in the face of the fact that the Respondent already clearly knew about her handicap and the limitations imposed by her physician. These questions thus cannot be found to serve a legitimate purpose. The questions themselves, at the pre- employment stage of the promotional or hiring process are per se illegal under the ADA. See, Section 42 U.S.C. 12112(2)(a). The statute prohibits "inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." While the Act permits inquiries into the "ability of an applicant to perform job- related functions," the nature and context of the committee's inquiry exceeded the scope of permitted inquiries. See, 42 U.S.C. 12112(2)(b); 42 U.S.C. Section 12112(d)(2).

   58. It is significant that the Respondent, in essence, admitted that the limitations that result from the Petitioner's disability are not job-related, a requirement for inclusion in the State interview and screening process. The supervisory positions at issue admittedly did not routinely require lifting, standing or bending, required of the Petitioner's former

       Registered Nurse Specialist Coordinator position. While discriminatory motivation is not actually required under Brand v. Florida Power Corp. supra, the Respondent's asking of the non-job related question in the interview and on the application form, as well as the "unprofessional comment" made to the Petitioner's supervisor during the telephone reference interview for position number 9671 is substantial evidence of handicap animus in the promotional hiring decision as to that position. Such an attitude whereby the hiring decision was motivated at least in part by the Petitioner's handicap situation and the facts that show that she was qualified for the position, even with her limitations, is discriminatory action prohibited under the Florida Civil Rights Act, Chapter 760.10, and the ADA. The appropriate inquiry and course of action would have been to determine if she could perform the essential requirements of the job with or without accommodation.

   59. The Petitioner knew she could perform the four promotional positions if the positions did not require lifting, bending or prolonged standing and indeed they did not. She stated her need for reasonable accommodation in the application for each of the jobs as referenced in the above findings of fact. In fact, a February 1993 memo placed work restrictions on her lifting and bending when she returned to light duty from her workers' compensation medical treatment. Such factors should have weighed favorably in a decision to accommodate her by

placing her in a position that did not require routine bending or standing. There is no evidence to show that the accommodation request was unreasonable. The Petitioner's accommodation request, the availability of a reasonable accommodation in position number 9671, the use of the illegal, non-job related questions on the forms and in the interview and the committee member's unprofessional comment regarding her disability and related absences from work during the interviewing/hiring process support a finding of liability in this case. See, Tuck v. AHCA Health Services of Tennessee, 842 F Supp. 988, 993 (M. D. Tenn.

1992) wherein an employer was held liable under the Rehabilitation Act in the Tennessee Human Rights Act, for failure to place a nurse in a alternative supervisory position that did not require lifting, bending, pushing, or pulling.

RECOMMENDATION

Accordingly, in consideration of the preponderant evidence of record and for the reasons delineated in the above findings of fact and conclusions of law, the Petitioner was the victim of discrimination because of her handicap as to position number 9671. Because the Petitioner is unable, due to her total and permanent disability to return to work, her remedy is back pay.

She should therefore be awarded back pay represented by the salary she would have earned in position number 9671 from the hiring date of that position which occurred shortly after February 1993, the interview date. She should have her attendant

retirement benefits adjusted upward by virtue of being denied that job, with an attendant cost of living increase of 3 percent which she would have earned beginning October 1, 1993, with such increased salary and benefits to be awarded terminating as of January 25, 1994, her retirement date. Jurisdiction is reserved on the issue of attorneys' fees and costs.

DONE AND ENTERED this 4th day of August, 1997, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1997.

COPIES FURNISHED:

Lawrence F. Kranert, Esquires Florida State Hospital, Building 249 Post Office Box 1000

Chattahoochee, Florida 32324

Jack McLean, Esquire

100 Peachtree Street, Northwest, Suite 600 Atlanta, Georgia 30303-1909

Larry K. White, Esquire John W. Hedrick, Esquire

1311-B Paul Russell Road, Suite 203 Tallahassee, Florida 32301

Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, Esquire Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 93-005856

Orders for Case No: 93-005856