STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT JONES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2754

) DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on November 22, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Bruce A. Minnick, Esquire

Pamela H. Page, Esquire Post Office Box 11127

Tallahassee, Florida 32302-3127

For Respondent: Edward A. Dion, Esquire

Suite 307, Hartman Building 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189 STATEMENT OF THE ISSUE

Whether respondent is guilty of an unlawful employment practice as alleged by petitioner in his petition for relief.

PRELIMINARY STATEMENT

This case began on July 23, 1992, when petitioner, Robert Jones, filed a charge of discrimination with the Florida Commission on Human Relations alleging that respondent, Department of Labor and Employment Security, had violated Section 760.10, Florida Statutes, by refusing to hire him because of a handicap, diabetes. After the agency conducted a preliminary investigation, its executive director issued a Notice of Determination: Cause on January 28, 1994. When efforts to conciliate the matter did not succeed, petitioner filed a petition for relief on April 29, 1994. The matter was referred by the agency to the Division of Administrative Hearings on May 12, 1994, with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing dated July 8, 1994, a final hearing was scheduled on September 15, 1994, in Tallahassee, Florida. At petitioner's request, the matter was rescheduled to November 22, 1994, at the same location.

At final hearing, petitioner testified on his own behalf and presented the testimony of Deidre Kyle, respondent's former director of civil rights and minority affairs; and Ronald C. Rigby, a former management review specialist with respondent's office of inspector general. Also, he offered petitioner's exhibits 1A-7, 11-16, and 18-26. All exhibits were received in evidence except exhibit 2 on which a ruling was reserved. Petitioner's post-hearing motion to supplement the record with three depositions was denied. Respondent presented the testimony of Kitty J. Convertino, respondent's planning and evaluation administrator. Also, it offered respondent's exhibits 1 and 2. Both exhibits were received in evidence.

The transcript of hearing was filed on December 22, 1994. By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to January 23, 1995. Both parties timely filed their proposed recommended orders that date. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. This case involves a claim by petitioner, Robert Jones (Jones or petitioner), that he was denied employment by respondent, Department of Labor and Employment Security (DLES), on account of his handicap. It is undisputed that Jones has diabetes, he is insulin-dependent, and he has had at least one toe amputated because of the disability. As such, he does not enjoy, in some measure, the full and normal use of his physical facilities, and he is accordingly deemed to be a handicapped person within the meaning of the law. The parties also agree that DLES is an employer subject to the Florida Human Rights Act of 1977, as amended, which governs this dispute. DLES denies it acted in a discriminatory manner and contends generally that (a) the handicap played no role in its employment decision since it was unaware that Jones was a disabled person when the employment decision was made, and (b) a more qualified person was hired for both positions sought by Jones. A preliminary investigation by the Florida Commission on Human Relations (Commission) found reasonable cause to believe that an unlawful employment practice had occurred.

      
      

   2. Since October 3, 1982, petitioner has been employed as an investigator specialist II at the Commission. He also worked for DLES from May 1980 until October 1981, and at the Florida State Employment Service from October 1981 until April 1982. Prior to working with the state, Jones served in the U. S. Marine Corps from which he was honorably discharged with a medical disability in 1977. He is a graduate of Florida State University having received a degree in political science in December 1985.

      
      

   3. Between 1982 and 1991, respondent made application for employment at DLES on at least four or five occasions but was never hired. On July 16, 1991, he wrote a letter to the agency head, then Frank Scruggs, complaining about his inability to get a job, advising that he was a disabled veteran, and asking for a "fair shake" on his applications. Later that year, he applied for the positions of management review specialist and senior management analyst II. Although he was interviewed for one of the two positions, he was not selected for either job.

   4. In his application filed with DLES, Jones described his health as "excellent." Attached to his application papers was a certification from the Veterans Administration indicating he had a service-related disability rated at

      30 percent or more. Also, he included a handwritten statement that he was a "veteran with a compensable service-connected disability." There was no indication, however, as to the nature of the disability.

      
      

   5. After receiving two rejection letters from DLES on February 10, 1992, regarding his job application, Jones filed a complaint of discrimination with the Commission on July 23, 1992, alleging he had "been discriminated against because of (his) Handicap, Diabetes." He later filed a petition for relief in which he charged that DLES' employment decision was based not only on his handicap, but also on account of his "gender, race, veteran status or any other unlawful reason." As to the grounds raised after the Commission had concluded its initial investigation, they have been disregarded as being untimely.

      
      

2. Senior Management Analyst II Position

   
   

   1. On January 9, 1992, respondent published a job opportunity announcement for the position of senior management analyst II in the office of civil rights and minority affairs. The position had been created to assist the director of that office, Deidre Kyle, in her day-to-day responsibilities. Kyle was also the individual responsible for the hiring decision.

      
      

   2. The advertised position required as minimum qualifications that the applicant have "a bachelor's degree and four years of professional experience in systems administrative work, employment and training, employment security, grants management, education, vocational counseling, vocational placement, occupational analysis, employment selection and referral activities, program planning, program evaluation or program monitoring." Petitioner met the minimum qualifications.

      
      

   3. Besides Jones, approximately fifty persons applied for the position of senior management analyst II, including Carolyn W. Franklin, a non-handicapped African-American female then working under Kyle's supervision and filling an Other Personal Services (OPS) slot as a civil rights specialist III in Kyle's office since September 1991. Franklin had previously worked for over twelve years in the Governor's Office, principally as a governmental analyst in the Citizens Assistance Office, and mostly under the direct supervision of Shirley Gooding, who later served as inspector general, and then assistant secretary, and finally as secretary of DLES in July 1992. She had also served as the affirmative action officer for the Governor's Office for four years. Except for these latter duties, Franklin had no experience in equal employment or civil rights.

      
      

   4. Out of the fifty applicants, only four were selected for an interview with Kyle, and none was handicapped. Jones was not selected for an interview. In choosing the top candidates for an interview, Kyle relied upon the duties and responsibilities contained in the career service system position description as well as certain review criteria which she had prepared. The review criteria were: (a) extensive knowledge of equal employment and affirmative action rules and regulations, (b) thorough knowledge of Title VII of the Civil Rights Act,

      (c) knowledge of the Americans with Disabilities Act, (d) experience in conducting federal program compliance reviews, (e) familiarity with American

      Standards Institute standards, (f) effective oral and written communication skills, and (g) personal computer experience (Word Perfect and/or Lotus Preferred).

      
      

   5. The qualifications of the three individuals other than Franklin selected for the final interview are not of record. Also, the record does not show how Jones' qualifications compared with those of the final candidates (other than Franklin). Thus, there is no way to determine if Jones was more or less qualified than the others on the final list, or whether he ranked fifth or even fiftieth out of all of the candidates filing applications.

      
      

   6. Kyle made no effort to determine whether any of the applicants, including petitioner, had a handicap. Therefore, when she made the decision to reject Jones and the other forty-five candidates through the initial screening process, she was unaware of the fact that he had diabetes. Indeed, she did not learn of this fact until Jones filed his complaint.

      
      

   7. The position sought by Jones was ultimately filled by Franklin. In selecting Franklin, Kyle noted that Franklin had served in an OPS position with "similar" job responsibilities, she had worked under Kyle's direct supervision for the preceding four months, and she had working knowledge of the duties and responsibilities of the position "that would allow her to begin work immediately."

      
      

   8. Contrary to petitioner's assertion, Kyle was not told by her superiors to hire Franklin. She concedes, however, that there were "suggestions" by then inspector general Gooding to hire Franklin, a former colleague of Gooding at the Governor's Office.

      
      

   9. In considering DLES' assertion that the reason for hiring Franklin was that she was the most qualified person, it is noted that earlier that year Franklin had applied for a lower-graded career service position in Kyle's office but was rejected because Kyle was unimpressed with Franklin's "communicative skills." After her rejection, Gooding "suggested" that Kyle hire Franklin for the OPS slot, a suggestion which Kyle followed. Based on these facts, it may be reasonably inferred that Kyle's true motive in hiring Franklin was to satisfy, albeit reluctantly, the wishes of her superior, Gooding, who wanted to place her friend in the agency, rather than hiring the best qualified person for the job.

      
      

   10. While friendship or even cronyism was the decisive factor in Franklin getting the job, there is insufficient evidence, either direct or circumstantial, that would support an inference that petitioner's handicap was the reason why he was not selected. Indeed, there is no evidence to support a finding that Jones would even have made the short list had Franklin not applied for the job, or would have been considered if Kyle had rejected the suggestions of her superior. Therefore, while the final employment decision may not have been fair, it is found that there was no discriminatory animus in DLES' employment decision to reject Jones.

       
       

3. Management Review Specialist Positions

   
   

   1. On October 17, 1991, respondent published a job opportunity announcement for two management review specialists (position numbers 1158 and 5420) in its office of inspector general, then run by inspector general Gooding. At that time, the office had two sections: management review and investigations. When the announcement was published, the office was unsure whether both positions would be used for management reviews or whether one would be

      management review and the other for investigations. The minimum qualifications for the positions were a bachelor's degree and 4 years of professional experience in systems analysis, management analysis, program planning, program research, program evaluation, engineering or administrative work. Petitioner met the minimum qualification requirements.

      
      

   2. The management review slot required the successful applicant to be experienced in management reviews, which are very comprehensive and involve an evaluation of the following management functions: planning, organization, staffing, directing and controlling. The specialist is also required to prepare rather comprehensive reports. On the other hand, the specialist in the investigative section performs more traditional investigative duties with a much more narrow focus than management review. The record shows that Jones was not fully qualified to fill a slot in the management section since his main experience had been investigating discrimination complaints for the Commission for the preceding ten years.

      
      

   3. Jones and some ninety other persons filed applications for these positions. A preliminary screening process of all applications was conducted by Kitty J. Convertino, who headed the management review section, and Gary Sanford, who headed the investigation section. Because of his investigative experience with the Commission, Jones was placed on the list of some fifteen to seventeen persons to be initially interviewed. It was contemplated that after these initial interviews were conducted, a short list of five candidates would be picked from those interviewed, and they would be invited back for a second interview. Although Convertino ostensibly had authority to make a hiring decision, the final say-so rested with her superior, inspector general Gooding.

      
      

   4. During the initial interview, each candidate was asked "interview questions" from a list prepared by Convertino. Among other subjects, the applicants were asked about their computer skills since specialists were required to prepare much of their own work. Although Jones says he uses a microcomputer in his present work, his computer skills did not meet Convertino's expectations. At the conclusion of the interview, Jones was asked to provide a writing sample, and he later funished a copy of an investigative report he had written for the Commission in 1986. This writing sample reinforced Convertino's opinion that Jones was more qualified for the investigation section than the management review section.

      
      

   5. During the selection process, a member of Convertino's management review team was transferred from her team to Sanford's investigation team. When this occurred, the management review specialist vacancy on Sanford's investigation team was eliminated leaving both vacancies in the management review section. The decision to transfer the position was made by inspector general Gooding. Because no position was open in the investigation section, and the qualifications of the chosen candidates for the management section exceeded those of petitioner, Jones was not invited back for a second interview. There is no evidence to support a finding that the transfer was made to prevent petitioner from being considered for the vacant position in the investigative section.

      
      

   6. Among the candidates for the two management review positions was Jane Steele, a former collegue of Gooding at the Governor's Office, who had performed administrative work for the City of Altamonte Springs for some eighteen months prior to seeking employment with DLES, and who had prior stints with the Department of Insurance, Department of Transportation, and Governor's Office of Planning and Budgeting. When Steele's qualifications did not initially comply

      with the job description for position 5920, the job description was rewritten midway through the evaluation process so that Steele could satisfy the qualifications. Whether this change was made at the behest of Gooding is not of record. In any event, there is no evidence to show that this manipulation in the qualification process was for an unlawful discriminatory purpose.

      
      

   7. Steele was ultimately selected to fill one of the two management review specialist positions. According to Convertino, Steele was selected because of her prior experience in performing compliance audits for a state agency and writing audit reports. In addition, she was computer literate, was a "good" writer, having published several articles, and had a masters degree in public administration. Although Steele once worked with Gooding at the Governor's Office, there is no evidence that Convertino consulted with Gooding prior to making her employment decision. Indeed, Convertino flatly denied that any conversations took place.

      
      

   8. Ronald J. Rigby, an African-American who also has diabetes and is hearing impaired, was selected for position 1158. He had previously performed compliance reviews for DLES in the Job Training Partnership Act program, which experience Convertino believed would be compatible with the work required of position 1158. Although Rigby was placed under investigation by the State Controller in mid-January 1992 for "wage claim discrepancies," and this prevented him from assuming the job for several months, the matter was resolved sometime after April 10, 1992, and he was then allowed to report to work. When the decision to hire Rigby was made, Convertino did not know that Rigby had diabetes, although she knew that he was hearing impaired.

      
      

   9. Jones says his medical condition was discussed during the interview process, and he advised the interviewers that the disability was controlled by medication. Neither Convertino nor Sanford recalled any such discussion, and Convertino says she was unware of Jones' condition until the complaint was filed. In any event, there is no evidence, either direct or circumstantial, that would support a finding that Jones' handicap played any part in the employment decision. While the investigative slot may have been filled through a transfer on account of friendship or cronyism, that decision was not predicated on a desire to keep a handicapped person from being considered for the job. Moreover, the evidence shows that both Steele and Rigby had more experience in performing compliance audits than did Jones, and thus they were the more qualified individuals to fill those positions.

      
      

4. Miscellaneous

1. Employment records received in evidence show that petitioner's annual pay was $22,000 at the time his application was filed in October 1991. His salary since that time is not of record. The position of management review specialist paid in the range of $2,407.49 to $4,056.63 per month while the position of senior management analyst II paid in the range of $2,740.51 to

   $4,653.39 per month.

   
   

2. Respondent apparently did not document, nor could it produce, the written basis for its hiring decisions, as required by its own personnel manual. Even so, this lack of documentation is insufficient to raise an inference that an unlawful discriminatory animus motivated DLES in its employment decisions.

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

4. The alleged unlawful employment practice occurred in January 1992, and the Florida Civil Rights Law of 1992 (ss. 760.01-760.11) did not become effective until October 1, 1992. Therefore, the Florida Human Rights Act of 1977, as amended, applies to this proceeding. Subsection 760.10(1)(a), Florida Statutes (1991), provides in pertinent part as follows:

   
   

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

      (a) To . . . refuse to hire any individual

      . . . because of such individual's . . . handicap . . .

      
      

      Petitioner claims he was denied employment with the DLES on account of his handicap, diabetes, in violation of this statute. As relief, he asks for both back and front pay, calculated on the basis of the highest salaried position, as well as attorney's fees and costs.

      
      

5. In a discrimination case such as this, where the employer contends the employment decision was made for reasons unrelated to the person's handicap, the traditional allocation of burdens set forth in Texas Department of Community Affairs v. Burdine, 450 U. S. 248 (1981) is appropriate. Brand v. Fla. Power Corporation, 633 So.2d 504, 508, n. 5 (Fla. 1st DCA 1994). Under this analysis, petitioner is required to establish a prima facie case of unlawful discrimination by showing that he is handicapped, he is otherwise qualified for the job, he was not selected for the position, and the employer continued to seek applications from persons of the applicant's qualifications. Once this preliminary showing is made, the burden of going forward then shifts to the employer to produce evidence articulating a legitimate, nondiscriminatory reason for its action. Assuming this burden is met, the claimant must then show that the proffered reason was not the true reason for the employment decision, but was in fact a pretext for discrimination.

   
   

6. In its proposed order, respondent takes the position that petitioner is not a handicapped person within the meaning of the law. In resolving this preliminary issue, it is noted that the Commission has long held that "a person with a handicap does not enjoy in some measure the full and normal use of his sensory, mental or physical facilities." Thomas v. Floridin Company, 8 F. A. L.

   R. 5457, 5458 (FCHR, October 9, 1986). Since the established facts show that, because of diabetes, petitioner does not enjoy, in some measure, the full and normal use of his physical facilities, he is a handicapped person within the meaning of Subsection 760.10(1)(a), Florida Statutes.

   
   

7. By a preponderance of the evidence, petitioner has established a prima facie case of unlawful discrimination. That is to say, he has shown he is a member of a protected class, he was otherwise qualified for the two positions, he was rejected, and the employer continued to seek applications from persons who met the minimum qualifications for the positions.

   
   

8. In response to the above showing, respondent has articulated a legitimate, nondiscriminatory reason for its actions. More specifically, it produced evidence to demonstrate that more qualified persons were hired for the

   two vacant management review specialist positions, and that no position was open in the investigative section, the area of Jones' expertise. Similarly, DLES adduced sufficient proof to show that a more qualified person was selected to fill the position of senior management analyst II.

   
   

9. To rebut respondent's showing, petitioner established that the reason given by DLES for hiring Franklin was pretextual. But in hiring Franklin, DLES was not motivated by an unlawful discriminatory purpose. Indeed, while the true reason for hiring Franklin was friendship or cronyism, there was no record showing that this action was a pretext to keep a more qualified handicapped person from making the short list of candidates for the position. While such a practice is admittedly unfair, it is not unlawful. Compare Dept. of Corrections

   v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991).

   
   

10. It is further concluded that both Steele and Rigby were more qualified than Jones for the management review positions, and that the agency's true reason for hiring them was that they were the best qualified candidates.

    Because petitioner failed to demonstrate that the proffered reason is unworthy of credence, he has failed to meet his burden. In so concluding, the undersigned recognizes that during the selection process the job qualifications were changed to allow one of the successful candidates to meet the minimum qualifications, and the investigative slot was filled, rightly or wrongly, through a sudden transfer. Again, while such procedures may have been unfair, the evidence does not show that the selection process was manipulated for an unlawful discriminatory purpose. Chandler, supra.

    
    

11. Because petitioner has failed to show that the articulated reasons for the employer's actions were a pretext for a proscribed discriminatory practice, the petition for relief must fail.

    
    

12. Petitioner's unopposed motion to file affidavit to authenticate documents is granted, and his exhibit 2 is received in evidence.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition

for relief.

DONE AND ENTERED this 20th day of February, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 20th day of February, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2754

Petitioner:

91-92. Covered in preliminary statement.

1. Rejected as being unnecessary.

2. Covered in preliminary statement.

3. Rejected as being unnecessary.

4. Rejected as being contrary to the evidence. 97-98. Partially accepted in finding of fact 26.

Respondent:

1. Partially accepted in finding of fact 16.

2. Partially accepted in finding of fact 18. 3-4. Partially accepted in finding of fact 4.

5-7. Partially accepted in findings of fact 18 and 19.

1. Partially accepted in finding of fact 19.

2. Partially accepted in finding of fact 20.

3. Partially accepted in finding of fact 22.

4. Partially accepted in finding of fact 23.

5. Partially accepted in finding of fact 6.

6. Partially accepted in finding of fact 8. 14-15. Partially accepted in finding of fact 9.

1. Partially accepted in finding of fact 12.

2. Partially accepted in finding of fact 11.

3. Partially accepted in finding of fact 5.

4. Rejected as being unnecessary.

5. Partially accepted in finding of fact 5.

6. Partially accepted in finding of fact 1.

Note - Where a proposed finding has been partially accepted, the unused part has been rejected as being unnecessary to reach a resolution of the issues, irrelevant, cumulative, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law.

COPIES FURNISHED:

Bruce A. Minnick, Esquire Pamela H. Page, Esquire Post Office Box 11127 Tallahassee, FL 32302-3127

Edward A. Dion, Esquire Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle, S.E. Tallahassee, FL 32399-2152

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32303-4149

Dana A. Baird, Esquire Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, FL 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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: 94-002754

Orders for Case No: 94-002754