STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. PAUL SONDEL, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 93-6243

   ) FLORIDA BOARD OF BAR EXAMINERS, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James W. York, held a formal hearing in this cause on March 31, 1994, in Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: D. Paul Sondel, pro se

   Route 10, Box 646

   Tallahassee, Florida 32310-1169

   
   

   For Respondent: Thomas A. Pobjecky, Esquire

   1300 East Park Avenue Tallahassee, Florida 32399-1750

   
   

   STATEMENT OF THE ISSUE

   
   

   Whether Petitioner has established, by a preponderance of the evidence, that Respondent is guilty of unlawful employment practices as alleged in the Petition for Relief.

   
   

   AUTHORITY

   
   

   Chapters 120 and 760, Florida Statutes, and Rule 60Q, Florida Administrative Code.

   
   

   PRELIMINARY STATEMENT

   
   

   On or about June 1, 1993, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations alleging that Respondent had committed an unlawful employment practice by failing or refusing to allow Petitioner to take a pre-employment examination in furtherance of Petitioner's desire to apply for and obtain employment with the Respondent in the position of Analyst I. Petitioner alleged that Respondent based its action (in refusing to allow Petitioner to take the test) upon Respondent's policy and practice not to consider any person with a graduate degree for employment as an Analyst I. On October 21, 1993, the Florida Commission on Human Relations rendered its Notice of Determination that there was no reasonable cause to believe that an unlawful employment practice had occurred. By Petition for Relief filed with the

   Division of Administrative Hearings on November 4, 1993, Petitioner requested an administrative hearing on his charge of age-based discrimination against the Respondent, Florida Board of Bar Examiners.

   
   

   At the final hearing, Petitioner testified on his own behalf and offered several documents consisting of copies of portions of: (1) The Equal Employment Compliance Manual, published by Callaghan and Company of Wilmette, Illinois in 1983; (2) 3 pages copied from an otherwise not identified "cumulative supplement" which appears to have been copied from a legal encyclopedia dealing with employment discrimination law; and portions of an article entitled "Overqualified" or "Appropriately Qualified": New ADEA Standards, by William Kandel, from a publication titled Employee Relations, L.J. Vol. 17, No.2/Autumn 1991. These documents are not admitted as evidence but were reviewed and considered in terms of case law cited within the documents which are pertinent to the legal conclusions reached in this Recommended Order. Respondent offered Exhibits 1-3 which were received into evidence.

   
   

   Both parties were afforded the opportunity to file proposed findings of fact and conclusions of law. Respondent filed proposed findings of fact and conclusions of law. Petitioner filed a document titled PETITIONER'S BRIEF AND RECOMMENDED ORDER. The submissions filed by each party were timely.

   
   

   Respondent's proposed findings have been considered and specific rulings on such findings are contained in the Appendix to this Recommended Order.

   
   

   Petitioner's submission consists primarily of legal conclusions in which conclusory proposals for findings of fact are intermingled with argument. While Petitioner's posthearing submission has been reviewed and considered, no specific rulings as to any proposed findings have been made.

   
   

   No transcript of hearing was filed in this case.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, D. Paul Sondel, was born August 13, 1928, and was, at the time of final hearing, 65 years of age. On April 11, 1993, Petitioner saw a newspaper advertisement for the position of Analyst I with the Florida Board of Bar Examiners (FBOBE). On April 12, 1993, Petitioner went to the office of the employment agency which the FBOBE was using to locate and screen applicants. Petitioner was told that he would not be allowed to apply or take the pre- employment test for the position because he had a graduate degree and only persons who have a Bachelor's degree but no graduate degree(s) were allowed to apply.

      
      

   2. On June 1, 1993, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations, in which he alleged that the FBOBE requirement that no one would be considered for the position of Analyst I who had a higher level degree than the minimum required Bachelor's degree, served the "intended purpose" of eliminating older applicants, especially those over

1. Petitioner further alleged that the existence and implementation of such FBOBE policy was in violation of the federal Age Discrimination in Employment Act (ADEA).

   
   

   1. Respondent hired two persons to fill the April 1993 advertised position of Analyst I. One of the persons hired was 24 and the other was 23 years of age.

   2. The FBOBE is an administrative agency of the Supreme Court of Florida and charged by the court with the responsibility of evaluating the character, fitness and competence of each applicant for admission to the Florida Bar.

      
      

   3. Petitioner has established that he is a person in a protected group; that adverse employment action was taken against him; that the persons hired for the position in question were outside the protected group; and that, but for his graduate degree, he was qualified for the position in question.

      
      

   4. The FBOBE has a current staff of 29 full time employees. As of March 30, 1994, of those employees, three were 40 years or older at the time of employment. Nine of these employees are currently 40 or older.

      
      

   5. The employment application used by the FBOBE does not request any information regarding an applicant's age. The FBOBE have hired individuals in the past who were 40 years of age or older.

      
      

   6. The FBOBE uses the American Employment Agency, Inc. to advertise vacancies and to conduct preliminary screening.

      
      

   7. Kathryn E. Ressel has been employed by the Respondent for over 22 years and is currently the Deputy Executive Director of the FBOBE. Ms. Ressel is responsible for the instructions given to the employment agency concerning the qualifications for the position of Analyst I.

      
      

   8. Ms. Ressel testified that the reason for the FBOBE policy of excluding applicants with post graduate college or university degrees is not intended to restrict employment opportunities to younger persons and is not related to the age of any applicant.

      
      

   9. Ms. Ressel's testimony is that past experience in hiring persons with graduate degrees has indicated that such persons tend to stay in the Analyst positions for short periods of time and leave when an employment opportunity presents itself in the field for which the person is educated.

      
      

   10. Ms. Ressel testified that the Analyst I position is an entry level position and that the Analyst receives extensive on-the-job training to enable the newly hired employee to perform assigned duties and meet job related responsibilities in an effective and efficient manner. Therefore, according to Ms. Ressel, when Analyst I's leave the employment of the FBOBE after a short time on the job, the Respondent is unable to recoup the time, energy and expense involved in training such individuals.

       
       

   11. Ms. Ressel's testimony articulates a reasonable nondiscriminatory basis for the employment practice at issue.

       
       

   12. Ms. Ressel's testimony indicates that the employment policy at issue is age neutral in that it is applied to all individuals who apply for the position of Analyst I, regardless of age. Ms. Ressel's testimony in this regard is unrefuted.

       
       

   13. Official notice is taken that a given individual is generally older at the time such person receives a graduate degree than when the same individual receives a Bachelor's degree. It does not follow, however, and Petitioner has failed to prove (statistically or otherwise), that in any specific job applicant

       pool available to the Respondent to fill Analyst I positions, potential applicants with graduate degrees are older than potential applicants who possess only Bachelor's degrees.

       
       

   14. Petitioner has failed to prove by a preponderance of the evidence (statistical or otherwise) that the employment policy at issue has a disparate impact on persons 40 years of age or older.

       
       

   15. Petitioner has failed to prove, by a preponderance of the evidence, that the legitimate, nondiscriminatory reason articulated by the FBOBE as the basis for rejecting Petitioner's application is in fact a pretext and/or that a discriminatory reason more likely motivated the Respondent.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this case, pursuant to Section 120.57, Florida Statutes.

       
       

   17. Subsection 760.10(1)(a), Florida Statutes, provides, in pertinent part:

       
       

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

          1. to ... fail or refuse to hire any individual ... because of such individual's

             ... age ... .

             
             

   18. To establish a prima facie case of age discrimination, Petitioner must prove (1) that he was between the age of 40 and 70 at the time Respondent failed or refused to hire him; (2) that a person outside the protected group was hired for the position in question; and (3) that he was qualified for the position at issue. McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), see also, Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991). Petitioner established a prima facie case in these proceedings.

       
       

   19. Once Petitioner establishes a prima facie case, the burden shifts to Respondent to articulate some legitimate, nondiscriminatory reason for the rejection of Petitioner's application. Florida Department of Community Affairs

       v. Bryant, supra, 586 So.2d at 1209, (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981)). Respondent has articulated a legitimate nondiscriminatory reason for the rejection of Petitioner's application in this case.

       
       

   20. Once the Respondent has articulated a legitimate nondiscriminatory basis for the disputed employment action, Petitioner retains the burden of proof that the offered reason is a pretext and that a discriminatory reason more likely motivated the employer in its actions. Bryant, supra, 586 So.2d at 1209 (citation omitted). Thus, the Petitioner retains the burden of persuasion and, in this case, Petitioner failed to meet that burden.

       
       

   21. Petitioner argues that he has established that the employment practice at issue creates a disparate impact on potential applicants over 40. There has been no evidence presented in this case to indicate the age profile of any pool of interested applicants for the position in question and Petitioner has not met his burden of proof in this regard.

   22. Petitioner argues that a person with a graduate degree would be generally better qualified for the position of Analyst I. Respondent, however, presented evidence indicating that the purpose of the requirement limiting applicants to persons with Bachelor's degrees is to increase the likelihood that, after a significant investment in training, the FBOBE will not be faced with rapid turnover in the position at issue. Petitioner suggests that Respondent failed to prove that such a turnover problem ever existed. The court in Florida Department of Community Affairs v. Bryant, supra, has, however, interpreted federal case law regarding this issue as follows:

       
       

       Once the plaintiff has established a prima facie showing of discrimination, the defendant need only articulate--it need not prove--the existence of a legitimate, nondiscriminatory reason ...

       
       

       586 So.2d 1209, (citing Texas Department of Community Affairs v. Burdine, supra at 450 U.S. 254-56).

       
       

   23. In cases involving allegations of violations of Chapter 760, Florida Statutes, Federal case law dealing with Title VII is applicable. School Board of Leon County v. Hargis, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981). The federal courts, the Florida Commission on Human Relations, and the Division of Administrative Hearings Hearing Officers are not authorized to sit as super personnel departments and should not reexamine an entity's business decisions. Moreover, "no matter how medieval a firm's practices, no matter how mistaken the firm's managers, the ADEA does not interfere." Marton v. Ryder Distribution Recourses, Inc., 811 F. Supp. 658 at 664 (S.D. Fla. 1992), (aff'd, 16 F.3d 11th Cir. 1994).

       
       

   24. Petitioner argues that the FBOBE's policy to not consider applicants with graduate degrees amounts to a practice of refusing to consider potential employees based upon "overqualification" and is thus somehow inherently suspect. Federal case law does not support this position. The ADEA does not outlaw such practices "so long as policies are adopted in good faith and are applied evenhandedly." Binder v. Long Island Lighting Company, 933 F.2d 187, 193 (2d Cir. 1991). 1/ Petitioner has failed to prove that the policy in question was not adopted in good faith or that it has been applied inconsistently.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petition for relief filed in this case be denied. DONE and ORDERED this 19th day of May, 1994, in Tallahassee, Florida.

JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 19th day of May, 1994.

ENDNOTES

1/ In Binder, the court reversed summary judgement in favor of the Defendant, noting that such policies may also serve as a mask for age discrimination. Id. This is not, however, a summary disposition and Petitioner has been afforded an evidentiary hearing wherein he failed to meet his burden to show bad faith or inconsistent application of the disputed policy.

APPENDIX

Rulings on Respondent's proposed findings of fact:

1. Respondent's first proposed finding of fact is adopted in finding of fact 4 of the Recommended Order.

2. Respondent's second proposed finding of fact is adopted in finding of fact 6 of the Recommended Order.

3. Respondent's third proposed finding of fact is adopted in substance in finding of fact 1 of the Recommended Order.

4. Respondent's fourth proposed finding of fact is adopted in substance in finding of fact 12 of the Recommended Order.

5. Respondent's fifth proposed finding of fact is adopted in substance in finding of fact 1 of the Recommended Order.

6. Respondent's sixth proposed finding of fact is adopted in finding of fact 7 of the Recommended Order.

7. Sentence 1 of Respondent's seventh proposed finding of fact is adopted in finding of fact 8 of the Recommended Order. The remainder of Respondent's proposed finding of fact 7 is rejected as hearsay.

8. Respondent's eighth proposed finding of fact is rejected as irrelevant and/or not necessary to conclusions reached.

9. Respondent's ninth proposed finding of fact is adopted in substance in paragraph 11 of the Recommended Order.

10. Sentence 1 of Respondent's tenth proposed finding of fact is hereby adopted. The remainder is rejected in that the statement lacks sufficient specificity and is too broad to be officially noticed.

COPIES FURNISHED:

D. Paul Sondel, pro se Route 10, Box 646

Tallahassee, Florida 32310-1169

Thomas A. Pobjecky, Esquire 1300 East Park Avenue

Tallahassee, Florida 32399-1750

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

Dana Baird, Esquire General Counsel

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

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: 93-006243

Orders for Case No: 93-006243