STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ULYSSES B. WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2041

) FCHR NO. 94-9870

ROLLINS COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on July 26, 1995, by videoconference from Tallahssee to Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Ulysses B. Williams (pro se)

1020 Polk Avenue

Orlando, Florida 32805

For Respondent: Lea Ann Banks, Esquire

BAKER & HOSTETLER

Post Office Box 112 Orlando, Florida 32802

STATEMENT OF THE ISSUES

Whether Petitioner, a member of a protected class, was denied training, subjected to unequal terms of employment and denied promotion to three jobs including the position of Lead Custodian with the Respondent in the Physical Plant Department in 1993, on the basis of his gender (male) and race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1993).

PRELIMINARY STATEMENT

The Petitioner filed a Charge of Discrimination with the City of Orlando Human Relations Department and the EEOC charging the Respondent with employment discrimination under Title VII of the Civil Rights Act of 1964. The case was sent for initial processing to the Florida Commission on Human Relations.

Subsequently, on or about March 20, 1995, a determination was issued by the FCHR. In a letter dated April 15, 1995, the Petitioner requested a hearing, and filed a Petition for Relief with the FCHR.

This matter was referred by FCHR to the Division of Administrative Hearings for formal hearing de novo on April 26, 1995. Respondent filed its Answer and Affirmative Defenses on May 17, 1995. Discovery was conducted and the formal

hearing was set. Following a continuance, this matter was transferred to the undersigned Hearing Officer and the hearing was conducted by videoconference.

At the hearing, Petitioner, proceeding pro se, testified in his own behalf, and did not offer any exhibits in evidence. The Respondent presented the testimony of two witnesses, and 17 exhibits were received in evidence, including the deposition testimony of Dr. S. Joseph Masiff, who was unavailable to testify at the hearing. Petitioner requested that Respondent produce certain reports which identify employees by sex, race and job classification. The request was granted and Respondent was ordered to produce Form EEO-6 for the 1993 year.

However, ruling was reserved on the relevancy of such report as to the matter sub judice and the parties were permitted leave to file memorandum of law as the relevancy of the statistics.

Respondent's motion to strike Form EEO-6 for 1993 is GRANTED. The subject matter of the pending action is whether Petitioner was discriminated against on the basis of sex and race in being denied certain promotions and training. In a disparate treatment case, Petitioner must prove discriminatory motive.

Statistical data showing an employer's pattern of conduct toward a protected class can create an inference that an employer discriminated against individual members of the class and may, therefore, be relevant. See Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir. 1990). However, in order for statistical evidence to create an inference of discrimination, a Petitioner's statistical evidence must focus on eliminating nondiscriminatory treatment between comparable individuals. Fallis v. Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir. 1991). Therefore, the statistical showing must measure disparate treatment in a relevant labor pool. Equal Employment Opportunity Commission v. North Hills Passavant Hospital, 466 F. Supp. 783, 795 (W.D. Pa. 1979). In this cause, the Form EEO-6 contains data regarding sex and race for all job classifications at the Respondent college, not just the job classification of Petitioner, and is therefore not relevant to the subject matter. Further, assuming that if the Form EEO-6 were found to be relevant, the statistics only become relevant in the demonstration of pretext by the employer in a disparate treatment case. Sweat v. Miller Brewing Co., 708 F.2d 655, 658 (11th Cir. 1983). Petitioner has failed to provide any showing of disparate treatment in the relevant labor pool.

Statistics for Petitioner's occupational classification (service and maintenance) reflect that of the total employees, there are 34 males and 16 females: 10 African-American males, 9 African - American females, 8 Hispanic males, 3 Hispanic females, and 16 white males and 4 white females.

A transcript was prepared and filed on August 16, 1995. The parties were allowed twenty days from the date of the filing of the transcript in which to file proposed findings of fact and conclusions of law. Respondent had not filed proposed findings of as of the date of this order. Petitioner filed proposed findings on September 15, 1995. My specific ruling on the proposals is contained in the Appendix.

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

FINDINGS OF FACT

1. The Respondent is an employer under the 1992 Florida Civil Rights Act.

   
   

2. Petitioner was employed by Respondent as a custodian in the Physical Plant Department since July 1989 and during the relevant period of time including 1993 and 1994.

3. Petitioner is a male African-American, and a member of a protected class.

   
   

4. Petitioner applied for a promotion to three different positions at the college between August 26, 1993 and December 6, 1993.

   
   

5. In late August, 1993, Petitioner applied for the part-time position of House Manager at the college theatre. Petitioner was not selected because his present work schedule would overlap the position at the theatre and his prior work experience was not relevant to the position. In addition, another candidate possessed better interpersonal and communication skills, and his education and work experience was more relevant to the position than the Petitioner's.

   
   

6. In early October, 1993, Petitioner applied for the position of HVACR (heating, ventilation, air conditioning and refrigeration) apprentice. The position is a learning position which requires working with a lead mechanic. Part of the job requirement for the apprentice position was the ability to attend trade school in HVACR.

   
   

7. During the employment interview Petitioner expressed reservations about attending the HVACR training because he was presently enrolled in night classes at Rollins College.

   
   

8. In addition to Petitioner, two white males and a Hispanic male applied for the position. A Hispanic male was selected for the position who had better qualifications. Thereafter, the racial make-up of the HVACR Department consisted of two whites, one black and one Hispanic male.

   
   

9. On October 14, 1993, three vacancies for the newly created position of Lead Custodian in the Physical Plant Department was advertised by Respondent. Petitioner was one of nine applicants for the position.

   
   

10. The nine individuals who applied for the position of Lead Custodian consisted of four African-American males, three African-American females and two Caucasian females. Following the review of each persons application and file and a personal interview, two African-American males and one African-American female were selected for the positions.

    
    

11. Petitioner was not recommended for one of the vacancies. The selection process was based on relevant work experience and work history, and was not based on improper or discriminatory race or gender considerations.

    
    

12. Petitioner was not denied training based on his race or gender. Petitioner applied for and attended six seminars covering a variety of subjects over the last several years.

    
    

13. Respondent's stated reasons for its promotion and training decisions were not proven to be pretextual.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes and Rule 22T-8.016(1), Florida Administrative Code.

15. The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended 42 USC Section 2000e et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race or sex. (Sec. 760.10(1)(a), Florida Statutes).

    
    

16. The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) and again in the recent case of St. Mary's Honor Center v. Hicks,

    U.S. , 113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468,5475 (FCHR 1985). McDonnell Douglas places upon the Petitioner the initial burden of proving a prima facie case of racial discrimination.

    
    

17. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. Petitioner must show that:

    
    

    1. The Petitioner is black;

    2. The employee is qualified for the position; and

    3. The employee was subject to an adverse employment decision (Petitioner did not receive a promotion to a position for which he was qualified);

    4. The position was filled by a white person:

    5. There must be shown by the evidence that there is a causal connection between a and c. Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729,

       29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

       
       

18. Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the Plaintiff's disparate treatment. See, Teamsters v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

    
    

19. Once the Plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision.

    The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been

    motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

    
    

20. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than the Petitioner. Texas Department of Community Affairs v. Burdine, at 257-8.

    
    

21. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Petitioner remains at all times with the Petitioner. Texas Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center v. Hicks, U.S. , 113 S.Ct. 2742 (1993).

    
    

22. In the case sub judice, the Petitioner has established that he is an African-American (a member of a protected class) and was qualified for two of the positions applied for. Petitioner failed to show that he was qualified for the part-time position of House Manager at the campus theatre. The Petitioner established that he was subjected to an adverse employment decision when he failed to receive a promotion to a position for which he was qualified, the HVACR apprentice and Lead Custodian positions. However, the apprentice position was filled by a Hispanic male, a member of a protected class, and the Lead Custodian positions were filled by two African-American males and one African- American female. Therefore, the Petitioner did not come forward with sufficient evidence to meet his initial burden of proof on the issue of racial discrimination or gender discrimination.

    
    

23. Assuming that Petitioner did meet his initial burden, the sequence of presentation of evidence then required the Respondent to come forward and "articulate" valid, nondiscriminatory reasons for the resulting promotion decisions. Rollins College has done so. It established by a preponderance of the testimony and business records that the job vacancies for which Petitioner applied were advertised and several persons filed applications, many of whom were minorities, and those selected were qualified for the position and were themselves members of a minority.

    
    

24. Petitioner has failed to produce any evidence to demonstrate that the Respondent's articulated reasons for its actions in the fall of 1993 were "pretextual".

    
    

25. From the testimony and the exhibits, the Petitioner has failed to carry the burden required by law to establish discriminatory conduct. There was no testimony by any of the witnesses presented that Petitioner did not receive the promotion or training because of his race or sex.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order which DENIES the Petition for Relief.

DONE AND ENTERED this 24th day of October, 1995, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 24th day of October, 1995.

APPENDIX

The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Proposed findings of fact submitted by Petitioner: Accepted in substance: paragraphs: none

Rejected as irrelevant, immaterial or as comment on the evidence:

paragraphs 1, 2, 3, 4, 5, 6.

COPIES FURNISHED:

Lea Ann Banks, Esquire BAKER & HOSTETLER

P. O. Box 112

Orlando, Florida 32802

Mr. Ulysses B. Williams 1020 Polk Avenue

Orlando, Florida 32303-4149

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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: 95-002041

Orders for Case No: 95-002041