STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIMIN HARVIN, ELIJAH WILLIAMS, )

)

Petitioners, )

)

vs. ) CASE NO. 94-1331

) CASE NO. 94-1332

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing in the above-styled case on November 14-15, 1994, in Florida. The following appearances were entered:

APPEARANCES

For Petitioner Marie A. Mattox Simin Harvin: Attorney At Law

1333 North Adams Street Tallahassee, Florida 32303

and Ann Curtis Terry Attorney At Law

Post Office Box 7024 Tallahassee, Florida 32314

For Petitioner: Linda G. Miklowitz Elijah Williams: Attorney At Law

Post Office Box 14922 Tallahassee, Florida 32317-4922

For Respondent: Peter Fleitman

Assistant Attorney General Department of Legal Affairs PL-01, The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

Whether Respondent committed an unlawful employment practice in denying the applications for promotion of Petitioner Williams, a black male; and Petitioner Harvin, a female of Iranian national origin.

PRELIMINARY STATEMENT

On July 9, 1993, Petitioner Harvin filed a charge of discrimination against Respondent. Petitioner Harvin, who is female and of Iranian national origin, alleged that she had been denied promotion in her employment with Respondent as a result of Petitioner's gender and national origin. By order dated January 28, 1994, the Florida Human Relations Commission entered a Notice of Determination: Cause.

Petitioner Williams filed a charge of discrimination against Respondent on July 13, 1993. Petitioner Williams also alleged discrimination by Respondent with regard to denial of promotion. Williams is a black male. Both he and Harvin had competed for a promotion where the selected applicant was a white male. By order dated January 28, 1994, the Florida Human Relations Commission entered a Notice of Determination in Williams' case: Cause.

Subsequently, Harvin and Williams filed separate Petitions For Relief with the Florida Human Relations Commission reiterating their claims of discrimination.

On March 10, 1994, Williams' Petition For Relief and Harvin's Petition For Relief were referred to the Division of Administrative Hearings for formal administrative proceedings.

By order dated April 13, 1994, the two cases were consolidated for purposes of further proceedings before the Division of Administrative Hearings.

At the final hearing, Petitioners presented the testimony of eight witnesses, including themselves, and 26 exhibits. Respondent presented the testimony of three witnesses and two exhibits. A transcript of the final hearing was filed with the Division of Administrative Hearings on December 12, 1994.

The parties requested and were granted an extension of time until February 12, 1995, within which to file proposed recommended orders. Proposed findings of fact filed by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

THE COMPETITORS

1. Petitioner Elijah Williams and Petitioner Simin Harvin were both employed as systems project analysts (pay grade 24) by Respondent in June of 1993 when Respondent denied both a promotion. Respondent opted instead to hire Christopher Butler, a white male, for the position of systems project administrator (pay grade 25), also vied for by another white male by the name of Jerry Webster.

   
   

2. Williams, a black male who holds a bachelor of science degree in business administration, received a masters degree in 1983 for a dual study of systems management and computer science. In the selection process, Williams was the only candidate with a master's degree.

   
   

3. Williams' first job as a computer operator was in 1976. Later he worked his way up from operator to supervisor and programmer in the course of employment with a regional medical center and a savings and loan. He worked for

   contractors with the National Space Administration (NASA) and eventually joined state government. He worked for the Florida Department of Revenue and then as a systems project analyst with Respondent. His employment with Respondent began in May, 1991. Williams admits that no person in Respondent's employment has ever made a racial slur to him.

   
   

4. Harvin is female. She was born in Iran. Upon completion of high school, she attended Florida State University, graduating in 1981 with a bachelor's degree in computer science. Following graduation, she began work with the State of Florida Department of Labor and Employment Security as a computer programmer. Later she worked with the Department of Transportation's data center. All of Harvin's past work experience comprising approximately a ten year period was in the area of computers. She was a lead analyst for most of this time period prior to going to work for Respondent in June of 1992.

   
   

5. Chris Butler held an associate of arts degree at the time of his selection by Respondent for promotion. In terms of formal education, Butler ranked lower than either Harvin or Williams. Butler was hired initially by Respondent in February of 1990. He was also a systems project analyst at the time of his selection for promotion.

   
   

   PREVIOUS COMPETITION

   
   

6. In December of 1992, Valerie Taylor, a black female was selected by Respondent to fill another systems project administrator position. Harvin and Butler also competed for that position. The interview panel for that selection consisted of Greg Giese, a white male; Tony Moten, a black male; and Richard Schmitt, a white male. Moten and Schmitt scored Harvin higher than Butler. Giese alone scored Butler higher than Harvin or Taylor in that selection, ranking Butler first with a total score of 123 to 120 for Taylor and 94 for Harvin.

   
   

   PRESENT SELECTION

   
   

7. The June 1993 selection was made by a panel consisting of Giese, Moten and a new interviewer by the name of Jim Jones. Jones, a white male, replaced Schmitt.

   
   

8. As established by Schmitt's scoring in the December selection and his testimony at final hearing, Schmitt did not believe Butler was "ready" for the position of systems administrator. Schmitt's testimony establishes that the selection criteria between the December 1992 selection and the repeat of that process in June of 1993 was changed to enhance Butler's chances of selection versus that of other competitors. Although Schmitt allowed at final hearing that the process was an "open competition" he acknowledged his belief that the "ground rules" were changed to "make sure--not make certain, but make it sway the odds" in favor of Butler for selection for the promotion. Schmitt stated that the system was basically color blind, but not personality blind.

   
   

9. The selection criteria for the June 1993 process gave greater weight to interview performance and experience with what is known as the FLORIDA computer system. Although the system was not formerly turned over to Respondent until June of 1992, Butler, who had been in house as a Respondent employee since 1990, was permitted to claim additional experience with that computer system.

   
   

10. All three candidates were in Respondent's employment in June of 1992 and possessed fairly equal experience with the system at the time of the June

    1993 selection. Further, all applicants had been told that FLORIDA experience would be scored equally for in-house applicants employed since formal receipt of the system from the contractor in June of 1992. In reality, the panel scored FLORIDA experience as follows:

    
    

    	Butler	Williams	Harvin
    Moten	20	12	18
    Jones	20	18	12
    Giese	10	10	8

    
    

11. Another change in the selection process from the December 1992 selection to the June 1993 selection involved the area of education. Education was reduced from 20 to 16 points. Nine points could be given to an applicant with an associate degree, i.e. Butler. If an applicant were an enrolled student, an additional point could be awarded. Williams, with bachelor and master degrees, could receive only 16 points.

    
    

12. In the June 1993 selection, Giese gave Butler 10 points because he assumed Butler was in a degree seeking program and therefore awarded the additional point under the "enrolled" criteria. He gave Williams only 14 points on the assumption that Williams' formal education was not related to computers. Giese's assumption regarding Williams' education was incorrect. Williams' study for his master's degree in systems management was combined with computer science, an appropriate preparation for an administrator. Giese's assumption regarding Butler's enrollment is also not substantiated by direct admissible evidence.

    
    

13. Butler, Williams, and Harvin were awarded points for education as follows:

    
    

    	Butler	Williams	Harvin
    Moten	10	16	12
    Jones	9	16	12
    Giese	10	14	12

    
    

14. In the subjective "Interview/Presentation" part of the selection process, all three interviewers in June of 1993 rated the three applicants as follows:

    
    

    Interview/Presentation

    
    

    	Butler	Williams	Harvin
    Moten	35	30	21
    Jones	57	37	21
    Giese	45	32	21

    
    

15. The raters gave confusingly different scores to the applicants with regard to experience. Williams was asked the number of years of application experience with particular types of computers. Although he gave one figure for each category, the interviewers wrote down different numbers. For large systems, Moten and Giese recorded 13 years, while Jones recorded six years.

    
    

16. In the calculation of experience of the competing applicants, Williams' total experience in terms of years totaled a cumulative 73 years, but he received only four points for that from Moten. Yet Moten gave Butler eight points for only 50 cumulative years and Harvin eight points for 59 years. Giese

    gave Williams only four points for his calculated total of 62 cumulative years. Giese gave Butler seven points for 51 years and Harvin six points for 60 years.

    
    

17. Petitioner Harvin was not informed prior to the interview that interview skills were an integral component of the selection. When she received only two hours notice of the impending interview, she was concerned about the amount of time within which she had to dress and prepare for the interview. Her supervisor, Giese, downplayed the matter and assured her that she was not dressed inappropriately. As a result, Harvin felt pressured to proceed with the interview, although she could have exercised her option to have the interview at a later time.

    
    

18. At the final hearing, Giese maintained that Harvin was not rated as high as Butler because of her "aggressiveness, her style, how dynamic she was, did she sell herself to this panel as being the right and only person for this job." Essentially, Giese's position was that Harvin did not sell herself well to the panel. As a result, Giese consistently rated Harvin lower than Butler in all categories in the selection process. However, Harvin's annual evaluation received on April 30, 1993, was an "exceeds" standards. There were no significant deficiencies noted.

    
    

19. In terms of total points, all three raters in the June 1993 selection rated Butler first in the process as follows:

    
    

    Total Points	Butler	Williams	Harvin
    Moten	123	117	105
    Jones	140	119	108
    Giese	117	95	96

    
    

20. At least one coworker, Gregory Lee, did not apply for the position of system project administrator in the June 1993 selection because he believed Butler would get the position. Calvin Smith Jr., another employee, remembers that Butler went to Jim Jones' office on a daily, and sometime hourly, basis for direction. This conduct, coupled with Butler's weekly luncheons with Jones, leads Smith to believe that Butler was preselected for the administrator position. Valerie Taylor recalled at the final hearing witnessing an incident where Butler implied that he had the job prior to selection. Taylor observed Butler and Jones going to lunch.

    
    

21. Tony Moten, the one black member of the interviewing panel, did not feel the selection process was slanted in favor of a white candidate over a black candidate or a female of Iranian origin. If he had detected such a bias, Moten maintained that he would have objected to the process. Moten thought Butler was the best candidate for the position. He also thought Williams and Harvin were good candidates.

    
    

22. Giese admitted he had difficulty in working with Harvin. That, in his opinion, she did not always take the best concerns for the organization into consideration when getting a job done, and that he had explained his rationale to Harvin for the selection of Butler, including complementing Harvin for her professionalism.

    
    

23. Butler was awarded the administrator position following the June 1993 selection with a 25 percent increase in his salary. In January of 1994, Butler

    quit Respondent's employment. Williams was hired as a interim administrator in May of 1994 and made permanent in the position in June of 1994.

    
    

24. Williams, who made the same salary as Butler prior to Butler's promotion, seeks the same 25 percent increase as that awarded to Butler. Williams has received $1,259 biweekly following his promotion to Butler's vacancy as opposed to the $1,389 biweekly afforded to Butler upon promotion. The biweekly salaries paid present incumbents by Respondent for pay grade 25 ranges from $1,866.52 to Gerald Lourcey for 17 years of professional managerial experience to the $1,259 paid Elijah Williams with approximately 10 years of professional managerial experience. Butler, with approximately two years of professional managerial experience, received $1,430.61 upon promotion which is near the median in salary accorded incumbents in this class of positions. Realistically, Williams has suffered a loss in wages compared to the amount which would have been paid to Butler of approximately $8,669.62 plus interest.

    
    

25. Similarly, Harvin seeks a 25 percent increase in salary to the amount which Butler was awarded and which Harvin contends she should have received in the event of her selection.

    
    

26. While Respondent has admitted the hiring process was flawed, there has been no admission by Respondent that this hiring process discriminated against Harvin or Williams on the basis of gender, national origin, or race. No creditable direct evidence was presented that Respondent through its previous hiring practices or as a result of action by any of the three interviewers possessed or exhibited an inherent prejudice against African-Americans, persons of Iranian origin, or females.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

28. The procedure for establishing claims of racial discrimination is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). That procedure was revisited in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination. Once established, the prima facie case raises a presumption that the employer discriminated against the employee. The burden then shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. The employer is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief.

    
    

29. In sum, the prima facie case an employee is required to establish is membership in a protected group, qualification for and application for a promotion, denial of the promotion, and that other employees of similar qualifications who were not members of the protected group were promoted at the

    time the plaintiff's request for promotion was denied. Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir 4. 1981).

    
    

30. Petitioners have established their respective prima facie case of discrimination. Both Harvin and Williams were applicants for the position at issue, one was a female of foreign national origin and the other was black.

    Both were members of a protected class. Both were qualified for the position to which another, Butler, a person deemed qualified but not a member of a protected class, was promoted.

    
    

31. While a prima facie case has been made which, based upon the foregoing findings of fact, establishes a discriminatory result, Respondent proffers as an explanation that Butler was the applicant scored highest by the interviewers. The interviewing panel used terms like "dynamic" and the "best person" for the job to describe Butler. Despite these subjective terms, there is insufficient direct evidence that Respondent harbored an intent to discriminate against either Petitioner in this proceeding on the basis of race, gender or national origin.

    
    

32. The evidence discloses only the expressed opinion of other coworkers regarding their belief that Butler was preselected for the position, but presents no showing that any of the three raters, inclusive of Moten who is black, intentionally discriminated against anyone. Rather, the evidence at best shows that the playing field was skewed in favor of Butler who enjoyed the friendship of some of the interviewers. The evidence does not establish a finding of illegal discrimination against any applicant. In this regard, see Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. App 1 Dist. 1991).

    
    

33. Accordingly, Harvin and Williams have failed to adequately dispute Respondent's clear, reasonably specific, and credible nondiscriminatory reason for the promotional decision.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the Petition For Relief filed by Harvin and Williams, respectively.

DONE and ENTERED in Tallahassee, Florida, this 17th day of March, 1995.

DON W. 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 17th day of March, 1995.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.

Petitioner Harvin's Proposed Findings

1.-5 Adopted, but not verbatim.

6.-7. Adopted by reference.

8.-18. Adopted, but not verbatim.

1. Rejected, the only evidence of Butler's enrollment was the submission of an unauthenticated document.

2. Accepted.

3. Rejected, subordinate.

22.-23. Adopted, but not verbatim.

1. Rejected, unnecessary.

2. Rejected, hearsay.

3. Accepted.

4. Rejected, unnecessary.

5. Adopted.

6. Rejected, argumentative and hearsay.

7. Rejected, subordinate.

Petitioner Williams' Proposed Findings 1.-16. Adopted, but not verbatim.

1. Rejected, subordinate.

2. Rejected, weight of the evidence.

3. Rejected, relevance.

4. Adopted by reference. 21.-22. Adopted, not verbatim. 23.-24. Rejected, relevance.

1. (There were two #25's) Adopted, not verbatim.

2. Rejected, relevance.

3. Adopted by reference.

Respondent's Proposed Findings

1.-15. Adopted, not verbatim.

16.-18. Adopted by reference. 19.-21. Adopted, not verbatim.

1. Rejected, nonsensical.

2. Rejected, weight of the evidence. 24.-44. Adopted, but not verbatim.

1. Rejected, relevance.

2. Rejected, argumentative.

47.-50. Adopted by reference.

51.-55. Rejected, relevance.

56.-57. Adopted.

58.-67. Rejected, subordinate.

68. Adopted by reference. 69.-79. Adopted, not verbatim. 80.-89. Rejected, unnecessary. 90.-99. Adopted, not verbatim. 100.-103. Rejected, unnecessary. 104.-111. Adopted, not verbatim.

COPIES FURNISHED:

Marie A. Mattox

Co-Counsel for Harvin 1333 North Adams St. Tallahassee, FL 32303

Ann Curtis Terry

Co-Counsel for Harvin

P. O. Box 7024 Tallahassee, FL 32314

Linda G. Miklowitz Attorney for Williams

P. O. Box 14922 Tallahassee, FL 32317-4922

Peter Fleitman

Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, FL 32399-1050

Dana Baird, General Counsel

325 John Knox Rd., Bldg. F., Ste. 240 Tallahassee, FL 32303-4149

Robert Powell, Clerk H R S

1323 Winewood Blvd.

Tallahassee, FL 32399-0700

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

325 John Knox Road Tallahassee FL 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.

================================================================= ORDER REMANDING PETITIONS FOR RELIEF TO HEARING OFFICER

FOR FINDINGS REQUIRED BY LAW

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

SIMIN HARVIN,

Petitioner,

EEOC Case No. 15D930700

vs. FCHR Case No. 93-8128

DOAH CASE NO. 94-1331

DEPARTMENT OF HEALTH AND FCHR Order No. 96-007 REHABILITATIVE SERVICES,

Respondent.

/ ELIJAH WILLIAMS,

Petitioner,

EEOC Case No. 15D930712

vs. FCHR Case No. 93-8231

DOAH CASE NO. 94-1332

DEPARTMENT OF HEALTH AND FCHR Order No. 96-007 REHABILITATIVE SERVICES,

Respondent.

/

ORDER REMANDING PETITIONS FOR RELIEF TO HEARING OFFICER FOR FINDINGS REQUIRED BY LAW

Preliminary Matters

Petitioner Simin Harvin filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes (Supp. 1992), alleging that Respondent Department of Health and Rehabilitative Services committed an unlawful employment practice by failing to promote her on the basis of her sex (female) and national origin (Iranian).

The allegations set forth in the complaint were investigated and, on January 28, 1994, the Executive Director issued his determination finding that reasonable cause existed to believe that an unlawful employment practice had occurred.

Petitioner Harvin filed a Petition for Relief from an Unlawful Employment Practice, received by the Commission on March 4, 1994, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

Petitioner Elijah Williams filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Sections 760.01 - 760.11, Florida Statutes

(Supp. 1992), alleging that Respondent Department of Health and Rehabilitative Services committed an unlawful employment practice by failing to promote him on the basis of his race (black).

The allegations set forth in the complaint were investigated and, on January 28, 1994, the Executive Director issued his determination finding that reasonable cause existed to believe that an unlawful employment practice had occurred.

Petitioner Williams filed a Petition for Relief from an Unlawful Employment Practice, received by the Commission on March 7, 1994, and the case was transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding.

The two cases were consolidated for purposes of further proceedings before the Division of Administrative Hearings, and a formal administrative hearing was held in Tallahassee, Florida, on November 14 and 15, 1994, before Hearing Officer Don W. Davis.

Hearing Officer Davis issued a Recommended Order of dismissal, dated March 17, 1995.

Pursuant to notice, public deliberations were held on March 19, 1996, in Pensacola Beach, Florida, before this panel of Commissioners, at which deliberations the panel determined the action to be taken on the Petitions for Relief.

Exceptions

Both Petitioners filed numerous written exceptions to the Hearing Officer's Recommended Order.

Paragraphs 5 through 15 of "Petitioner, Simin Harvin's Exceptions to Recommended Order," and paragraphs 4 through 7 of the "Exceptions to Recommended Order of Petitioner Elijah Williams and Request for Oral Argument," except to the standard of proof used by the Hearing Officer in this case. Petitioners note Recommended Order, I 31, in which the Hearing Officer concludes that "there is insufficient direct evidence that Respondent harbored an intent to discriminate against either Petitioner in this proceeding on the basis of race, gender or national origin." Petitioners argue that the Hearing Officer committed error in requiring "direct evidence" of discriminatory intent and in failing to consider the circumstantial evidence of discriminatory intent presented.

We agree.

In conclusions of law adopted by the Commission, it has been stated that, "The Petitioner may prove his claim by direct evidence of discriminatory motive or by circumstantial evidence that gives rise to an inference of discriminatory motive." Steele v. The City of Lynn Haven, 16 F.A.L.R. 2185, at 2193 (FCHR 1994). See also Rhodes v. Guiberson Oil Tools, 75 F.3d 989, at 993 and 994 (5th

Cir. 1996).

Parenthetically, we note that there appears to be findings within the Recommended Order, itself, that could circumstantially give rise to an inference of discrimination, most notably the seeming contradiction between Respondent's articulated reason for its action, Mr. Butler was scored highest by the

interviewers (Recommended Order, I 31), and the Hearing Officer's apparent conclusion that friendship was the actual reason for Respondent's action (Recommended Order, I 32).

We conclude, therefore, that the Hearing Officer's reliance solely on "direct" evidence in deciding these cases, as indicated in Recommended Order, f 31, is an error of law, and that Petitioners are entitled to have the Hearing Officer decide whether unlawful employment practices occurred based on consideration of the circumstantial evidence presented, as well.

We accept Petitioners' exceptions to the extent that we find that an error of law occurred in the Hearing Officer's failure to consider circumstantial evidence of discrimination in this matter.

Findings of Fact and Conclusions of Law

Because of the error of law found to have occurred in the Recommended Order, as explained in the "Exceptions" section of this Order, supra, we decline to adopt the Hearing Officer's Recommended Order.

Remand

This matter is REMANDED to the Hearing Officer for the issuance of a Recommended Order that, as required by law, takes into consideration whether the circumstantial evidence presented in these cases, (including the seeming contradiction between Respondent's articulated reason for its action, and the Hearing Officer's conclusion for the reason for Respondent's action, as discussed in the "Exceptions" section of this Order, supra), indicates that unlawful employment practices occurred.

DONE AND ORDERED this 17th day of April, 1996. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Whitfield Jenkins, Panel Chairperson;

Commissioner Clarethea Brooks; and Commissioner Ronald Townsend

Filed this 17th day of April, 1996, in Tallahassee, Florida

Sharon Moultry

Clerk of the Commission

COPIES FURNISHED:

Marie A. Mattox, Esquire Marie A. Mattox, P. A.

1333 North Adams Street Tallahassee, Florida 32303

Linda G. Miklowitz, Esquire

P. O. Box 14922

1589 Metropolitan Blvd.

Tallahassee, Florida 32317-4492

Patrick Martin,. Esquire Assistant Attorney General Department of Legal Affairs PL-01 - The Capitol

Tallahassee, Florida 32399-1050

James Mallue, Legal Advisor for Commission Panel Don W. Davis, DOAH Hearing Officer

================================================================= ORDER ON REMAND AND AMENDMENT TO RECOMMENDED ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIMIN HARVIN, ELIJAH WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1331

) CASE NO. 94-1332

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

ORDER ON REMAND AND AMENDMENT TO RECOMMENDED ORDER

On April 17, 1996, the Florida Commission On Human Relations (FCHR) remanded the above-styled matter to the undersigned for reconsideration of the Recommended Order dated March 17, 1995, to determine whether circumstantial evidence presented in the proceeding is indicative of the occurrence of an unlawful employment practice.

Upon review of the March 17, 1995 Recommended Order and FCHR's Order Remanding Petitions For Relief To Hearing Officer For Findings Required By Law, the undersigned concurs that amendment to the Recommended Order in order to fully and correctly explicate findings and reasoning of the Hearing Officer is appropriate, and that there is no need for further evidentiary proceedings in this matter.

Accordingly, paragraph 26 of the Findings Of Fact portion of the Recommended Order is amended to read:

26. While Respondent has admitted the hiring process was flawed, there has been no admission by Respondent that this hiring process discriminated against Harvin or Williams on the basis of gender, national origin, or race. No creditable evidence, direct or circumstantial, was presented that Respondent through its previous hiring practices or as a result of action by any of the three interviewers possessed or exhibited an inherent prejudice against African- Americans, persons of Iranian origin, or females.

Additionally, paragraph 31, contained in the Conclusions Of Law portion of the Recommended Order, is amended to read:

31. While a prima facie case has been made which, based upon the foregoing findings of fact, establishes a discriminatory result, Respondent prof fers as an explanation that Butler was the applicant scored highest by the interviewers. The interviewing panel used terms like "dynamic" and the best person? for the job to describe Butler. Despite these subjective terms, there is insufficient persuasive proof, either direct or circumstantial, that Respondent harbored an intent to discriminate against either Petitioner in this proceeding on the basis of race, gender or national origin.

All other portions of the Recommended Order issued on March 17, 1995, not in conflict with the provisions of this order are reaffirmed.

The foregoing DONE and ORDERED in Tallahassee, Florida, this 26th day of April, 1996.

DON W. 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 26th day of April, 1996.

Peter Fleitman

Assistant Attorney General Department of Legal Affairs PL-01, The Capitol

Tallahassee, Florida 32399-1050

Dana Baird, General Counsel

325 John Knox Rd., Bldg. F., Ste. 240 Tallahassee, Florida 32303-4149

Robert Powell, Clerk HRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

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

325 John Knox Road

Tallahassee Florida 32303-4149

Docket for Case No: 94-001331

Orders for Case No: 94-001331