STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES LEE CHURCH, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4480

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on May 11, 1995 in Tavares, Florida.

APPEARANCES

For Petitioner: James Lee Church, pro se

907 Foresthill Drive

Clermont, Florida 34711

For Respondent: Susan Schwartz

Assistant General Counsel Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500 STATEMENT OF ISSUES

This is a reverse discrimination case. The issue is whether the Respondent discriminated racially against the Respondent, a white male, in its promotion practices.

PRELIMINARY STATEMENT

The Petitioner, a white male, filed a timely petition alleging that the Respondent had discriminated against him in denying him promotions which he sought on the basis of his race. The Petitioner alleged that he had been denied promotion to three positions for which he applied: Correctional Probation Officer I, Human Services Supervisor, and Correctional Probation Officer II. During the pendency of this claim, the Petitioner applied for promotion to a Correction Probation Specialist. All of the described positions were open, competitive promotional or entry level career service positions offered by the Respondent.

Although the Respondent's allegations differ in some respects regarding the nature of the discriminatory activities or practices which occurred; he alleges that in each instance the Respondent discriminated against him on a racial basis because the same black female employee of the Respondent took some action in

each case to interfere with the normal consideration of the Petitioner's application for the promotional opportunity.

Further, that in the last instance, she was permitted to participate in the selection/interview panel for the position of the Human Services Supervisor during the pendency of these proceedings in which Petitioner had named her the primary protagonist in the discriminatory conduct against him after he objected to her participation in this panel with counsel for the Respondent. Although the Petitioner did not amend his original complaint, it is uncontroverted that he protested the employee's participation asserting that she had conflict of interest and should not be permitted to participate given her interest in the case. The Respondent Department did not preclude the employee's participation in this last promotional opportunity, notwithstanding the Petitioner's protests.

The Petitioner testified in his own behalf and called Fred Dietz, Joseph Hatem, and Paula Hoisington as witnesses. He introduced twelve exhibits which were received into evidence. Findings based upon Petitioner's Exhibit 2, the affidavit of Nancy Ramirez, are limited to those matters upon which direct evidence was received because of the hearsay nature of the exhibit. The Respondent introduced two exhibits which were received into evidence.

Both parties filed proposed findings which were read and considered. The Appendix to this order states which of their proposed findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. The Petitioner, James Lee Church, is a white male who has been an employee of the Respondent, Department of Corrections since May of 1990. The Petitioner was originally employed as a Correctional Probation Officer, but in June of 1991 accepted a voluntary demotion to Human Services Counselor and relocation to Lake Correctional Institution, LCI, in order to attend graduate school in Orlando, Florida.

   
   

2. In early 1993, the Petitioner applied for promotion to a position of Correctional Probation Officer I, also referred to as a classification officer, at LCI. Although this would have been a promotion from the position which he held, this is the same entry level position from which he had earlier taken a voluntary demotion in order to relocate. It can be inferred that the Petitioner was familiar with the job duties of the position which he had earlier held at another institution which included counseling inmates, computing gain time, setting up inmate work assignments, educational goals and social/religious programs.

   
   

3. In March, 1993, Paula Hoisington, a black female, was Classification Supervisor at LCI, and reviewed all thirty applications for the Classification Probation Officer I position for which the Petitioner had applied. The Petitioner's qualifications exceeded the required educational and practical experience, and he had been previously employed by the Respondent in a similar position prior to relocating to LCI.

   
   

4. Ms. Hoisington and the Petitioner discussed his application before the selection was made, and Ms. Hoisington advised the Petitioner that she was not putting his name forward for the promotional opportunity because she was aware he had applied for another position. The Petitioner queried Ms. Hoisington regarding whether that meant he would get the other position, and she advised him that it did not. The Petitioner advised her that he really was serious

   about putting his name forward for the instant promotion and desired to be interviewed. Ms. Hoisington excluded the Petitioner for the interview process which is required for recommendation for the promotion, and selected eight applicants (four white males, two black males, one white female, and black female) to be interviewed by the panel making promotional recommendations to the Superintendent of LCI.

   
   

5. The panel recommended three candidates, two black males and one white male, and the Superintendent selected Willie McKinnon, a black male to fill the position. Mr. McKinnon had been employed as a correctional officer for eight years and a classroom teacher for three years prior to that, and possessed a degree in sociology and had worked as a social worker.

   
   

6. In March 1993, the Petitioner applied for the promotional position of Human Services Supervisor at LCI, the position which had been discussed with Ms. Hoisington. This position required oversight of Tier II substance abuse program at LCI and supervising LCI personnel and staff provided by an outside vendor.

   
   

7. Ms. Hoisington again selected the applicants to the interviewed, and this time included the Petitioner in the list. She also prepared the synopsis of each applicant's background and experience which was provided to each member of the panel.

   
   

8. The panel consisted of a white female, two white males, and Ms. Hoisington. It recommended three applicants, two black females and one white male to the Superintendent, who selected the black female. The person selected had worked as a Human Services Counselor for three and one half years, and been employed previously by the Department of Health and Rehabilitative Services and had a degree in criminology.

   
   

9. Ms. Hoisington and another member of the panel gave the Petitioner a bad score on the interview because he was perceived as arrogant and pompous because he acted as though he was the best candidate for the position.

   
   

10. In October 1993, the Petitioner received a promotion to Correctional Probation Officer I.

    
    

11. In March 1994, the Petitioner applied for promotion to Correctional Probation Officer II. The Petitioner was interviewed for this promotional opportunity, but was not selected by the panel who recommended a white female, a black female, and a white male to the Regional Administrator, who was the appointing authority. A white female was selected from the individuals recommended.

    
    

12. In December 1993, the Petitioner applied for the promotional position of Correctional Probation Specialist, a new position overseeing various substance abuse programs throughout Region III (Central Florida) of Respondent. The application was made before the Petitioner's charge of discrimination by Ms. Hoisington was made to the Commission in January 1994.

    
    

13. In the interim, Ms. Hoisington had been promoted to the Regional staff, and in her new position selected the persons to be interviewed for the position of Correction Probation Specialist for which the Petitioner had applied. Again, Ms. Hoisington put together the resumes for the panels consideration and served on the panel.

14. The Petitioner protested Ms. Hoisington's participation in this process to the Respondent through its counsel, and suggested to Respondent's counsel that it was a conflict of interest for Ms. Hoisington to serve on the panel, which included of two white females and Ms. Hoisington. The Respondent refused to take Ms. Hoisington off the panel which recommended one black male and one white female for the position. The hiring authority, a white male, selected a white female who had worked for the Department nine years to fill the position.

    
    

15. The Petitioner had a degree in biology, had teaching experience, was a certified correction probation officer, had work experience in West Virginia as a classification supervisor, and had work experience in North Carolina administering and monitoring grants and grant moneys to daycare providers. He had worked in the Tier II drug program during his employment by the Department, and would have been qualified by education and experience for a supervisor's position in this area.

    
    

16. The Petitioner was promoted to Correctional Probation Officer II in September 1994.

    
    

17. Classification of jobs and validation of requirements for positions in career service was performed by the Department of Administration during the initial period of Petitioner's employment by Respondent, and by the Department of Management Services later in his employment pursuant to statute.

    
    

18. The questions used by interview panels for positions within the Department are part of a qualification examination. These examination questions have not been validated relative to the various jobs within the Department of Corrections, and validated to determine their ability to accurately predict job performance by applicants. They are used by panels to assess the applicants and are scored; however, there is a subjective component to the assessment of applicants as revealed by the low grades received by the Petitioner for "arrogance" by panel members in his interview for the Human Services Counselor Supervisor position. Attitude was not a "scorable" component of the test, yet it was determinative in the minds of two of the evaluators. There is no evidence that the questions were racially biased, or that they were the basis of racial discrimination against the Petitioner.

    
    

19. The Petitioner's supervisor, Ms. Ramirez, did make statements to Ms. Hoisington which indicated that he was not a team player; however, she also advised Ms. Hoisington that Petitioner did his job as she instructed him to do it. Ms. Hoisington testified regarding this, and Ms. Ramirez' affidavit is not inconsistent with Ms. Hoisington's testimony.

    
    

20. The Department is an employer. The Department has been determined to have discriminated against Hispanic and black females in hiring for certain positions which are not at issue in this case. There is no evidence that the Department has discriminated generally in the past against white males in its hiring practices. The only evidence presented on racial discrimination is that outlined above.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

22. Section 760.10(1), Florida Statutes, prohibits discrimination in employment, among other things, on the basis of race, sex, age, religion, or national origin. Florida has adopted the same standards applicable in federal discrimination cases, and federal case law in this area is persuasive.

    
    

23. The Petitioner, a white male, alleges discrimination solely on the basis of race. This a reverse discrimination case. An element of proof in Petitioner's case is evidence that the Respondent discriminates against the majority race. Petitioner made no showing that the Department had a history of discriminating against whites.

    
    

24. The evidence presented by Petitioner indicates that Ms. Hoisington, a black female, did not put Petitioner's name forward for consideration as a Correction Probation Officer I, a position the Petitioner had previously held in the Department prior to coming to LCI. Ms. Hoisington's action eliminated the Petitioner from consideration for this promotional opportunity. The panel recommended two black males and one white male to the hiring authority, and a black male was hired for this position.

    
    

25. Subsequently, the Petitioner applied for a position as a Human Services Supervisor. He was well qualified for this position by education and experience, and was interviewed for the position. The panel did not recommend the Petitioner, recommending instead two black females and a white male. A black female was appointed to the position who was not as well qualified educationally or in work experience, but who had worked for the Department for a longer period of time. No evidence was received from either side regarding the impact of tenure on promotional opportunities.

    
    

26. The Department defends its selection on the evaluations by Ms. Hoisington and another panelist that the Petitioner was "arrogant" acting as though he was the "savior" of the Tier II program. Subjective evaluation of the applicant's attitude is not a criteria for selection; however, there was a white male recommended and no evidence was presented that elimination of the Petitioner effectively insured that a Black was promoted.

    
    

27. The Petitioner applied for a promotional position as a Correction Probation Officer II, and was interviewed by the screening panel. The panel recommended a white female, a black female and a white male to the hiring authority, but did not recommend the Petitioner. The white female was hired for the position.

    
    

28. The Petitioner applied for the position of Correctional Probation Specialist, a newly created position monitoring the Department's drug treatment provider in Region III. The interview for this position occurred during the pendency of this case in which Petitioner names Ms. Hoisington as his principle antagonist. Ms. Hoisington had been promoted to the Region staff and was to be the supervisor of the new position. In this capacity, she was to participate in the preparation of the applicants' fact sheets and be on the panel.

    
    

29. The Petitioner challenged Ms. Hoisington's participation in this selection process because of her involvement in the pending case and his allegations of discrimination against him. The Department elected to permit Ms. Hoisington to continue to participate in the selection process.

    
    

30. Ms. Hoisington left information about the Petitioner's prior experience as a correctional officer, a classification supervisor in West

    Virginia, and administering grants and monitoring the expenditures and performance of a daycare program in North Carolina off of the Petitioner's sheet.

    
    

31. Ms. Hoisington was a member of the three women panel which interviewed the applicants including the Petitioner. The panel recommended a black male and a white female for the position, and the white female was selected. She lacked the educational and work experience at the supervisory level which the Petitioner possessed. Ms. Hoisington testified that the reason the white female was selected over the Petitioner was that she was excited about the position, and the panel thought she could work well with the Region staff and vendors.

    The Petitioner's interpersonal skills were deemed to be inadequate based upon his poor performance in the interview. In this instance, the panel recommended a white female and a black female, and the white female was selected.

    
    

32. The facts above fail to show discrimination based upon race as alleged by the Petitioner in any of the instances about which the Petitioner complained. In each instance, although the Petitioner was not selected, another white was recommended and, in two instances, hired for the job. The facts do indicate that Ms. Hoisington, a black female, engaged in conduct which was adverse to the Petitioner and which a reasonable person would concluded was based upon personal animosity. However, personal animosity is not a basis for relief unless it is based upon race, religion, national origin, age, sex, or is in retaliation for an individual bring charges under the act. There was no evidence of racial motivation, and the Petitioner did not amend his complaint to include allegations of retaliation. See Section 760.10(7), Florida Statutes.

    
    

33. Although evidence was received on the fourth promotional opportunity, this was because later instances of racial discrimination may be probative of the original allegations. However, the Petitioner never pled any allegations of retaliation regarding the fourth instance, and no determinations are made herein regarding retaliation on the fourth promotional opportunity.

    
    

34. The Petitioner's charges that job qualifications are not studied and are not relevant to the jobs are contrary to fact. Such studies were conducted by the Department of Administration for all career service positions, and that function was transferred and assumed by the Department of Management Services when the Department of Administration was abolished.

    
    

35. The Petitioner showed that the questions used by the review panels were not validated; however, he failed to show that this contributed or resulted in racial discrimination. No citation of authority was provided to show that unvalidated questions are prima facie evidence of discrimination. However, even if such were true, a review of the individuals recommended by the various review panels shows a mix of black and white, male and female applicants were recommended to the hiring authorities, who hired at least two whites to fill the four positions. There was no evidence received that the unvalidated questions were used as a pretext and resulted in the elimination of white applicants in order that applicants of another race would be hired.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That the Petitioner's complaint be dismissed.

DONE and ENTERED this 15th day of June, 1995, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 15th day of June, 1995.

APPENDIX CASE NO. 94-4480

The parties filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why:

Petitioner's

Findings Proposed Order

Paragraph 1-3 Subsumed in specific findings.

Paragraph 4 No evidence was received that Ms. Hoisington's refusal to place Petitioner's name on the interview list was a violation of Departmental rules.

Paragraph 5 Subsumed in Paragraph 4.

Paragraph 6-8 Subsumed in Paragraph 19.

Paragraph 9 Irrelevant.

Paragraph 10 Subsumed in Paragraph 18.

Paragraph 11 Cannot be determined from the information

provided and is irrelevant.

Paragraph 12-20 All of these findings relate to the fourth

promotional opportunity, in which a white female was recommended by the panel and hired. The Petitioner failed to make a showing of racial prejudice in this instances, about which evidence was received because it supported the previous allegations; however, the Petitioner did not plead retaliation in his complaint and no findings will be made on allegations about retaliation.

Paragraph 21,26-28,30 Subsumed in Paragraph 18.

Paragraph 22 Subsumed in Paragraph 17.

Paragraph 23-25,29 Legal arguments.

Respondent's

Findings Proposed Order

Paragraph 1-4 Paragraph 1-4.

Paragraph 5 Rejected as contrary to more credible

evidence.

Paragraph 6,7 Paragraph 5. Paragraph 8a,8b,9 Paragraph 6,7,8,9. Paragraph 10,11,12 Paragraph 10,11.

Paragraph 13 Paragraph 12,13.

Paragraph 14 Subsumed in Paragraph 18.

Paragraph 15 Subsumed in Paragraph 15.

COPIES FURNISHED:

James Lee Church

907 Foresthill Drive

Clermont, FL 34711

Susan Schwartz, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

Louis A. Vargas, General Counsel Department of Corrections

2601 Blairstone Road

Tallahassee, FL 32399-2500

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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

JAMES LEE CHURCH,

Petitioner, EEOC Case No. 15D940001 FCHR Case No. 93-8895

v. DOAH Case No. 94-4480

FCHR Order No. 95-054

DEPARTMENT OF CORRECTIONS,

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner James Lee Church filed a complaint of discrimination pursuant to the Florida Civil Rights Act of 1992, Section 760.01-760.11, Florida Statutes (1993), alleging that Respondent Department of Corrections committed an unlawful employment practice by denying him promotional opportunities on the basis of his race (white).

The allegations set forth in the complaint were investigated and, on July 14, 1994, the Executive Director issued his determination, finding that no reasonable cause existed to believe that an unlawful employment practice had occurred.

Petitioner filed a Petition for Relief from an Unlawful Employment Practice, received by the Commission on August 5, 1994, and the case was transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.

A formal administrative hearing was held in Tavares, Florida, on May 11, 1995, before Hearing Officer Stephen F. Dean.

Hearing Officer Dean issued a Recommended Order of dismissal, dated June 15, 1995.

Pursuant to notice, public deliberations were held on October 12, 1995, in Tallahassee, Florida, before this panel of Commissioners, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

On October 9, 1995, Respondent filed a Motion for Continuance of the October 12, 1995, Commission deliberation of this matter. This motion was withdrawn by Respondent at the October 12, 1995, Commission deliberation.

FINDINGS OF FACT

Neither party filed a transcript of the proceeding before the Hearing Officer.

Since a Hearing Officer's finding of whether discrimination occurred is a finding of fact, the Commission may overturn such a finding only if, after reviewing the complete record of the case, the Commission determines that the finding is not supported by competent substantial evidence in the record or that the proceeding leading to the determination did not comply with the essential requirements of law. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, at 1210 (Fla. 1st DCA 1991). In the absence of a transcript of the proceeding before the Hearing Officer, the Hearing Officer's Recommended Order is the only evidence for the Commission to consider. See National Industries, Inc. v. Commission on Human Relations, et al., 527 So. 2d 894, at 897, 898 (Fla. 5th DCA 1988).

We adopt the Hearing Officer's finding of fact.

CONCLUSIONS OF LAW

The overall application of the law by the Hearing Officer is a correct disposition of the case.

We note that at two places in the Recommended Order, the Hearing Officer indicates that, "This is a reverse discrimination case." Recommended Order, Statement of Issues section and s23.

Further, the Hearing Officer indicates that , as such, "[a]n element of proof in Petitioner's case is evidence that the Respondent discriminates against the majority race." Recommended Order, s23.

We conclude that the Florida Civil Rights Act of 1992, 760.01-760.11, Florida Statutes (1993), does not recognize the concept of "reverse discrimination." The law simply prohibits discrimination in employment on the basis of race or color (among other bases). Section 760.10(1)(a) and (b), Florida Statutes (1993).

Evidence that "the Respondent discriminates against the majority race" is not a necessary element of proof in a race discrimination case brought by a person who is white.

Rather, a race discrimination case brought by a person who is white is to be analyzed the same way as a race discrimination case brought by a person who is not white.

Nonetheless, we agree with the Hearing Officer that Petitioner failed in his ultimate burden of proving intentional discrimination. Recommended Order, s32.

With the above-stated modifications, we adopt the Hearing Officer's conclusions of law.

Dismissal

The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal receive a notice of appeal within 30 days of the date this order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rules of Appellate Procedure 9.110.

DONE AND ORDERED this 8th day of December, 1995. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Clarethea Brooks

Commissioner Whitfield Jenkins, Panel Chairperson, upon being impaneled to decide this case, recuses himself from participating in the Commission decision of this matter.

Commissioner Ronald Townsend dissents to the finding that no unlawful employment practice occurred in this case and to the adoption of the Hearing Officer's Recommended Order, but, given the acceptance of the Recommended Order by the Commission, concurs either the modifications to the conclusions of law set out by the Commission in the Conclusions of Law section of this Order.

Filed this 8th day of December, 1995, in Tallahassee, Florida.

Sharon Moultry

Clerk of the Commission

NOTICE TO COMPLAINANT/PETITIONER

As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission's final agency action. To secure a "substantial weight review" by EEOC, you must request it in writing within 15 days of your receipt of this Order. Send your request to Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Blvd., Suite 2700, 27th Floor, Miami, Florida 33131.

COPIES FURNISHED:

James Lee Church Laura Levy, Esquire

907 Foresthill Drive Susan Schwartz, Esquire Clermont, Florida 34711 Department of Corrections

2601 Blair Stone Road Tallahassee, Florida 32399-2500

James Mallue, Legal Advisor for Commission Panel Stephen F. Dean, DOAH Hearing Officer

Docket for Case No: 94-004480

Orders for Case No: 94-004480