STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PAUL SONDEL, )
)
Petitioner, )
)
vs. ) CASE NO. 95-2043
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, this cause came on for formal hearing on September 29, 1995, in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: D. Paul Sondel, pro se
333-D Mabry Street Tallahassee, Florida 32304
For Respondent: Charles A. Finkle
District Legal Counsel Department of Health and
Rehabilitative Services
2639 North Monroe Street, Suite 252-A Tallahassee, Florida 32399-2949
STATEMENT OF THE ISSUES
Whether Respondent is guilty of an unlawful employment practice by failing to hire Petitioner on the basis of age or in retaliation.
PRELIMINARY STATEMENT
At formal hearing, Petitioner testified on his own behalf and had sixteen exhibits admitted in evidence, subject to the handwritten material on Petitioner's Exhibit Six being regarded as redacted and not considered.
At the close of Petitioner's case-in-chief, Respondent orally moved to dismiss. That motion was denied.
Respondent presented the oral testimony of Karen Dalton and Cheryl S. Nielsen and had nine exhibits admitted in evidence.
No transcript was provided. All timely-filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.
FINDINGS OF FACT
On February 24, 1994 (amended March 10, 1994), Petitioner filed a Charge of Discrimination, based on age and retaliation, with the Florida Commission on Human Relations. That charge listed the most recent discrimination as October 18, 1993 and alleged that Petitioner had been rejected for a post in Panama City; that Respondent, through a Ms. Retherford, had denied Petitioner access to other applicants' records for ten days; and that Ms. Retherford, Ms. Jenkins, and Ms. Ciccarelli of Respondent's District 2, had made sure everyone in their District knew Petitioner's name and to avoid hiring him. To further specify his charges, Petitioner attached a December 16, 1993 memorandum from Ms. Radigan to Mr. Clary. (See below, Finding of Fact No. 56). The Charge of Discrimination then concluded, "the specific job for which I applied was set in Marianna and closed on 18 October; though I had been referred to that job by Karen Dalton, an HRS specialist at HRS headquarters, I never had a chance at that job." (P-2)
By a "Determination: No Cause", dated March 20, 1995, the Commission advised Petitioner that he could file a Petition for Relief within thirty-five days, pursuant to Section 760.11 F.S.
On April 22, 1995, Petitioner filed his Petition for Relief, which was referred to the Division of Administrative Hearings for a formal evidentiary hearing, pursuant to Section 120.57(1) F.S..
That timely Petition for Relief alleged both age and retaliation discrimination by Respondent's failure to hire Petitioner for a number of posts, none of which the Petition specifically named by position number or date. The retaliation allegation was based on Petitioner's "causing trouble," not due to his filing any prior formal complaints with the federal Equal Employment Opportunity Commission or Florida Commission on Human Relations or upon his participation in these types of litigation on behalf of anyone else.
Although the subject matter jurisdiction of the Division of Administrative Hearings is bounded by the Charge of Discrimination, the Petition for Relief, and Chapter 760 F.S., the parties were permitted to present some historical information.
Even so, the parties' presentation of evidence did not always clearly correlate Respondent's dated employment advertisements for named, numbered, or described positions to specific applications of Petitioner and/or specific interviews or hirings of other persons.
Respondent agency demonstrated that as of October 13, 1993, it was employing at least one employee older than Petitioner, at least one in her sixties, others in their fifties, and hundreds who were over 39 years old. However, none of this information is particularly helpful in resolving the issues in this case. While Respondent's figures may speak to longevity of employees or duration of their employment with Respondent, they are silent as to each employee's age as of the date Respondent first hired each one. (R-9)
Petitioner is a white male who at all times material was 63-65 years of
age.
Petitioner repeatedly applied for job vacancies advertised by
Respondent agency and was not hired for any of them.
Every position for which Petitioner applied required, at a minimum, that applicants have a bachelor's degree from an accredited college or university plus three years' professional experience in one or more of the following employments: abuse registry; developmental services; law enforcement investigations; licensed health care; children, youth, and family services; child support enforcement; economic services; aging and adult services; licensed child day care; mental health; or elementary or secondary education. Specific types of bachelor's degrees or any master's degree could substitute for one of the three years' required experience in the named programs. Specific types of master's degrees could substitute for two years of the three years' required experience in the named programs. However, no matter how many or what type of college degrees an applicant had earned, Respondent still required applicants to have at least one year of specialized experience. (P-1, R-1, R-2, R-4, R-5, and R-7).
In fact, Petitioner met the foregoing requirements at all times material.
"In the late summer of 1992," Petitioner first responded to one of Respondent's advertisements for a Protective Investigator position in Panama City. (P-1, P-14)
He was turned down without an interview for that position by a letter dated September 22, 1992. (P-1).
Feeling that he was qualified for the foregoing position and that he should have at least been given the opportunity to interview, Petitioner made an appointment with Ms. Charlie Retherford, who had advertised the position. The contents of Ms. Retherford's explanation about ten days later is not of record, but Petitioner remained dissatisfied.
Petitioner next made a request pursuant to Chapter 119 F.S., The Public Records Act, to view the records of other applicants. Petitioner felt he was "hassled" over this request, but admitted that Respondent provided the records within two weeks. Petitioner did not elaborate upon why he felt "hassled," only stating that he felt two weeks was an "unreasonable delay."
Petitioner analyzed the records and formed the opinion that "there was good reason to believe" Respondent did not interview him because he was over 60 years old. Petitioner testified that those applicants selected by Respondent for interviews averaged 29 years old, but Petitioner did not offer in evidence the records he had reviewed so as to substantiate his assertion.
In correspondence and interviews which occurred after September 22, 1992, Petitioner revealed his age to various employees of Respondent. (See Findings of Fact 14, above, and 24, 41, and 45 below). However, an applicant's age or birth date is not required on Respondent's standard employment application form, and on Petitioner's September 5, 1992 application received by Respondent September 9, 1992 (P-14), Petitioner had left blank the "optional" line for date of birth. Therefore, it was not established that the Respondent knew, or even how the Respondent could have known, Petitioner's age prior to its September 22, 1992 failure to hire him.
Despite Petitioner's testimony as to the average age of interviewees, the mean age of all the applicants up to September 22, 1992 was not established, so it is not clear whether any twenty-nine year olds or persons younger than
Petitioner also were not interviewed as well as Petitioner, who was not interviewed and who was in his sixties. Additionally, no nexus between any other applicant's qualifying credentials and Petitioner's qualifying credentials was put forth. Therefore, it is impossible to tell if those applicants who were interviewed prior to September 22, 1992 were more or less qualified than Petitioner, or if there was any pattern of Respondent refusing to interview applicants of any age.
By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator with its Aging and Adult Services Unit in Chattahoochee. (P-4).
By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-5)
By a January 22, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-6)
By a January 27, 1993 letter, Respondent turned down Petitioner's application as a Protective Services Abuse Registry Counselor after he was interviewed. (P-3, P-7) (See Findings of Fact 24 and 41, below.
By a February 25, 1993 letter, Respondent turned down Petitioner's application for Research Assistant Position No. 05396 at Florida State Hospital. (P-8)
Petitioner did not offer in evidence any of his applications corresponding to the Respondent's refusals to hire him between September 22, 1992 and February 25, 1993. 1/ For the period of September 22, 1992 through February 25, 1993, Petitioner's only evidence of age or retaliation discrimination was his subjective personal conviction that age was a factor in Respondent's refusal to hire him and the Radigan memorandum issued ten months later and discussed in Findings of Fact 56-65, below. Affording Petitioner all reasonable inferences, the undersigned infers that due to Petitioner's post- September 22, 1992 interview with Ms. Retherford, Respondent's District 2 hiring personnel could have been aware of Petitioner's age from late September 1992 onward. However, there was no evidence presented by which it can be affirmatively determined that between September 22, 1992 and February 25, 1993 that Respondent knew the age of all other applicants before deciding which ones to interview or that there was a pattern of only interviewing persons under a certain age. 2/ Further, in an August 12, 1993 letter, Petitioner stated to the Secretary of Respondent agency that he had, in fact, been interviewed by Respondent in January 1993. (P-3) (See below, Finding of Fact 41.) It also must be inferred from that information that Respondent did not systematically exclude Petitioner from the interview process on the basis of age or retaliation at least through January 1993.
Petitioner's last application before October 14, 1993 which was admitted in evidence is dated April 8, 1993. It was stamped "received" by Respondent on April 9, 1993. It also does not give his age or date of birth.
It specifies that Petitioner was applying for a Protective Investigator position closing April 12, 1993. (P-15).
In April 1993, Brenda Ciccarelli, an official in Respondent's District 2, requested Karen Dalton, a recruitment coordinator in Respondent's Personal Services Section, to review Petitioner's employment application to determine if he met the minimum requirements for employment in the advertised position. Ms.
Dalton's testimony is not altogether clear as to which application or applications she reviewed in April 1993, but from the evidence as a whole, it is inferred that she reviewed Petitioner's September 5, 1992 (P-14) and/or his April 8, 1993 (P-15) applications or applications by Petitioner which were substantially similar. Ms. Dalton analyzed Petitioner's application(s) and determined that Petitioner did not meet Respondent's minimum requirements. She satisfied herself that she had made a correct analysis by conferring with Mr.
Joe Williams of the Department of Management Services.
By a May 7, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-9)
Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from May 24, 1993 to June 7, 1993. (R-1)
Respondent readvertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from June 21, 1993 to July 26, 1993. (R-2)
Effective August 6, 1993, Respondent hired Jack Connelly, then 45 years old, for Position No. 48210 in Port St. Joe, Gulf County. (R-3)
Respondent introduced a tabulation of the ages of the applicants for Position No. 48210 which was completed as of the effective date the position was filled. It included columns listing birth dates of applicants, if known; a column indicating applicants' handicaps, if any; a column indicating whether an applicant was eligible; and a column indicating which applicants were interviewed. (R-3)
Mr. Connelly, the successful applicant, was interviewed, as were eleven other applicants. Ten applicants, among them Petitioner, were not interviewed. (R-3)
The applicants who were interviewed were respectively forty-five, fifty, forty-six, forty-one, thirty-seven, fifty-eight, one unlisted, forty- four, forty-one, forty-four, and thirty-one years of age. The ages of those not interviewed were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two. (R-3)
There is nothing in the record to show that the qualifications of the applicants interviewed or those of Jack Connelly, who was hired, were lower than Petitioner's qualifications. There is no discernible pattern of excluding anyone by age. 3/
Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 50968 in Panama City, Bay County from May 17, 1993 to May 31, 1993. (R-4)
Respondent readvertised Protective Investigator/8308 Position No. 50968 in Panama City, Bay County from June 21, 1993 to July 6, 1993. (R-6)
By a July 20, 1993 letter, Respondent turned down Petitioner's application for Protective Investigator in Panama City. (P-10)
Effective August 6, 1993, Respondent hired Edward Bonner, then fifty- three years old, for Position 50968. He was one of the applicants interviewed. (R-6)
Respondent presented another columnar tabulation completed as of the effective date Mr. Bonner was hired. It showed that the interviewed applicants were ages fifty-three, fifty, forty-six, forty-one, twenty-seven, fifty-eight, one unlisted, forty-six, forty-one, forty-four, and thirty-one, respectively. The uninterviewed applicants were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three,
forty-seven, and thirty-two respectively. (R-6) Again, there is no discernable pattern of excluding anyone by age. 4/
There is nothing in the record to show that the qualifications of the interviewees or of Edward Bonner were lower than Petitioner's qualifications.
On August 12, 1993, Petitioner wrote the agency Secretary, Mr. H. James Towey, complaining that he had been discriminated against because of his age, which he then gave as
This letter listed the dates of discrimination as 9/22/92, 11/24/92, 11/24/92 again, 1/22/93, 1/27/93, 2/25/93, 5/7/93/ and 7/20/93. Therein, Petitioner admitted that Respondent had interviewed him approximately January 1993 for a System Abuse Registry Counselor position and that the interview had gone very well from his point of view. (P-3)
Respondent advertised Protective Investigator/8308 (anticipated vacancy) Position No. 04385 in Panama City from June 21, 1993 to July 6, 1993. (R-7)
Effective September 3, 1993, Respondent hired Johnnie A. Knop (female), DOB unlisted, for Position No. 04385. Respondent's tabulation completed on the effective date of hiring Ms. Knop showed that not counting Ms. Knop, whose age does not appear, the interviewees were thirty-eight, fifty, forty-six, forty-one, thirty-three, fifty-eight, forty-four, forty-one, forty- four, and thirty-one years of age, respectively. The non-interviewees were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two years of age. (R-8) Once more, there is no discernible pattern of excluding anyone by age. Moreover, it is not possible to tell whether or not Respondent hired someone older or younger than the Petitioner. 5/
There is nothing in the record to show that Johnnie Knop's qualifications were lower than Petitioner's.
In September, 1993, Ms. Dalton had a conversation with Petitioner which lasted approximately ninety minutes. Based upon the contents of Petitioner's Exhibit 13, it is found that this conversation occurred on September 13, 1993 in response to letters of complaint written by Petitioner on May 20 and August 12, 1993. The Petitioner's May 20 letter is not in evidence, but it is inferred that the August 12 letter referenced in P-13 was Petitioner's complaint to Secretary Towey (P-3) concerning age discrimination and discussed above in Finding of Fact 41.
During their conversation, Ms. Dalton discovered that some of Petitioner's remote job experiences were useful for certifying him qualified. Together, Petitioner and Ms. Dalton worked through a list of Respondent's job
openings, and Ms. Dalton sent one of Petitioner's applications on to Cheryl Nielsen who was hiring for a position in Marianna.
At formal hearing, Ms. Dalton explained credibly that she had not originally categorized Petitioner as meeting the professional experience requirement in the "elementary or secondary education" category because she misunderstood his prior application(s) which she had reviewed. Where the September 5, 1992 application had related Petitioner as employed as "a teacher at Dozier School for Boys (Washington County Program at Dozier)" and the April 8, 1993 application listed him as " a teacher at Dozier School for Boys" for eleven months in 1990-1991, Ms. Dalton previously had understood that his employment merely constituted "shopwork, independent living", which is literally part of what Petitioner had written. Ms. Dalton previously had not equated that phraseology with professional teaching experience in an elementary or secondary school. Ms. Dalton also credibly explained that she had the erroneous perception of Petitioner's past experience listed as "supervisor, driver education" at Parks Job Corps Center as being solely employment in a private driver's education school. Petitioner had written "vocational training center," to describe the Center's function. Less understandable but unrefuted was Ms. Dalton's testimony that she had not equated Petitioner's teacher status for eight years in the Oakland County, California Public Schools as "teaching" because of the way Petitioner's application(s) had presented that prior employment which had occurred in the late sixties and early seventies. Despite both applications clearly stating this was public school teaching, Ms. Dalton had once again erroneously assumed that Petitioner had worked in a driver education school, when he had, in fact, been teaching a regularly scheduled minor course curriculum of driver's education in the standard curriculum of a public high school. Apparently, she had given less emphasis to this and had become confused by the explanatory material that Petitioner had added to explain the other things he had done besides teaching. She also gave less emphasis to other employments involving several years even if they included the word "teacher" because they were remote in time. (P-14 and P-15; compare P-16).
After their clarifying interview, Ms. Dalton considered Petitioner qualified for the position(s) applied for, even though his qualifications previously had not been apparent to her from his written application(s).
Convinced that Petitioner's application style did not present him to best advantage, Ms. Dalton advised Petitioner how to re-do his application to emphasize the factors significant to Respondent and maximize his employment opportunities with Respondent.
On the basis of their conversation alone, Ms. Dalton sent a September 15, 1993 letter to Petitioner, and copied Ms. Jenkins and Ms. Ciccarelli, both employed in Respondent's District 2, to the effect that Petitioner met the eligibility requirements for the Protective Investigator classification. (P-13)
Petitioner revised his application to detail that some of his school activities which were remote in time actually involved teaching. He submitted the rewritten application to Ms. Dalton approximately October 14, 1993. (P-16). After the revision, Ms. Dalton credited Petitioner with three years and nine months of "teaching in an elementary or secondary school" based only on his teaching during the 1960's. She also forwarded the revised application to Marianna and Ms. Nielsen.
A review of the Petitioner's only three applications in evidence (September 5, 1992 at P-14; April 8, 1993 at P-15; and October 14, 1993 at P-16)
reveals that Petitioner's original application style is so detailed and thorough that some portions September 1992 and April 1993 applications are less than clear as to what entity employed him and what his title was. For instance, he frequently used job titles that were more administrative, like "program manager", than educational, like "teacher". While a thorough reading of either of the applications in Petitioner's original style would probably reveal that he had, indeed, been employed in public school teaching positions approximately 30 years before, Petitioner's original applications require much more concentrated reading than does his revision in order to sort through the material matters and exclude extraneous and cumulative material that had no significance to Respondent's application process. The unrevised applications are not clear that he actually "taught" for a total of three years and nine months in public elementary or secondary schools as understood by Respondent's assessment system.
According to Cheryl Nielsen, the position in Marianna for which Petitioner was certified eligible by Ms. Dalton and which closed October 18, 1993 was a temporary position. It existed solely because the individual holding the permanent position had been on workers' compensation leave. When it became apparent to Ms. Nielsen that the injured job holder would not be returning permanently, she decided not to continue the hiring process for the temporary position. Instead, she decided to advertise and fill the position in Marianna as a permanent position once the appropriate waiting period ran out. This was a reasonable decision because it would require six weeks' training before any hiree would be useful and because by going directly to the hiring of permanent personnel, Ms. Nielsen could avoid having to repeat the training process with a different person in a short period of time. No one was interviewed or hired for the temporary position for which Petitioner applied.
There is no evidence in this record to tell the undersigned if Petitioner applied for Miss Nielsen's permanent position. Indeed, there is no evidence that Petitioner applied for any positions with Respondent after October 14, 1993.
On November 26, 1993, Petitioner wrote Mr. Clary, Respondent agency's Deputy Secretary for Administration. The "Re:" line of this letter states that the letter refers to "'contracts' which cost HRS a fortune but serve no legitimate purpose." A fair reading of Petitioner's letter is that he was complaining concerning a letter from Dr. James Henson of Tallahassee Community College (TCC) which constituted a reply to Petitioner's inquiry concerning a TCC job vacancy announcement. Neither Petitioner's letter to Dr. Henson nor Dr. Henson's reply letter to Petitioner are in evidence to further explain what was actually going on. In his November 26, 1993 letter to Respondent's Deputy Secretary Clary, Petitioner characterized Dr. Henson's letter to him as "condescending" and "elitist" and stated Petitioner's opinion that Respondent should not have contracted with TCC to recruit field instructors because it was a waste of money. Petitioner's letter is entirely coherent, but its tone is agitated and vituperative. It attacks the agency's expenditure of funds to Dr. Henson and TCC and their qualifications. It does not mention Petitioner's age or job applications to Respondent in any way. (P-12)
Apparently as a result of yet another of Petitioner's letters dated November 19, 1993, which November 19, 1993 letter is not in evidence, Ms. Radigan, Respondent's Assistant Secretary for Children and Family Services, wrote the following December 16, 1993 memorandum to Deputy Secretary Clary, copying Secretary Towey and the Assistant to the President of TCC.
I wanted to give you some feed back on this issue. Mr. Sondel has written many such letters across the last six to eight years.
He is very well known by the recruitment and personnel professionals in the Tallahassee area, in both the private and public sectors.
Bob Roberts discussed this issue with Mr.
Marshall Miller, special assistant to Dr. Henson at Tallahassee Community College (TCC). Mr. Miller suggested that DHRS [Respondent agency] should make no response to or take any action pertinent to the letter. Dr. Henson would prefer that he or his attorney make any response as he sees proper.
The field instructor position in question is one of twenty new contracted professionals being recruited state wide that will be located in each district to provide clinical expertise, technical assistance, job coaching and staff training for a four unit staff in the Children and Family Services Program.
Due to the nature of the job tasks that will be assigned to the new contracted professionals, the Districts expect that they will have relevant professional training and
work experience in public child welfare systems. Please let me know if you have any questions,
or wish to have additional information. Emphasis and bracketted explanatory material supplied. (P-11)57. The language emphasized above was not emphasized in Ms. Radigan's original memorandum, but has been characterized in Petitioner's testimony as "the smoking gun" upon which Petitioner relies to demonstrate that Ms. Radigan, via
"retaliatory slander", had prevented Respondent agency from hiring Petitioner throughout 1992- 1993. He attributed her remarks to be the result of his letters to the Respondent complaining of age discrimination.
Petitioner testified credibly and without refutation that he had never applied for employment with Respondent before the summer of 1992 and that he was first denied employment by Respondent on September 22, 1992. This is accepted.
At the time of Ms. Radigan's memorandum, Petitioner had filed no formal charges of discrimination against Respondent. Therefore, it is impossible for any retaliation by Respondent between September 22, 1992 and October 18, 1993, if it existed, to have been based upon formal charges by Petitioner.
Petitioner's subjective reading of the Radigan memorandum to the effect that it presents him as a "kook who should not be taken seriously" is one possible interpretation, but otherwise, Petitioner's interpretation is flawed.
The Radigan memorandum is dated well after Respondent's last failure to hire Petitioner. That alone is not conclusive to show that its contents did not affect Respondent's hiring process between September 22, 1992 and October 18, 1993 because it could relate back to Respondent's prior retaliatory non- hiring practices. However, a clear reading of the memorandum itself does not permit such an interpretation.
First, the memorandum refers to a letter by Petitioner dated approximately a month after the Respondent's last failure to hire Petitioner. Although Petitioner claimed that the Radigan memorandum refers to Petitioner's complaints of age discrimination, that was not proven. Since the Petitioner's November 19, 1993 letter, which the Radigan memorandum addressed, is not in evidence, it is impossible to determine precisely which of Petitioner's complaints Ms. Radigan's memorandum addressed, but even if Petitioner's November 19, 1993 letter had complained of age discrimination, that complaint was made after Petitioner had ceased to apply with Respondent. Therefore, retaliation at that point could not relate backwards to hiring practices already concluded.
The letters of Petitioner over six to eight years to which the body of the memorandum refers apparently include his letters to private sector entities as well as government agencies other than Respondent agency. Therefore, the fact that Petitioner had only been applying to Respondent for two, not six or more, years (see Finding of Fact 58, above) does not establish any intentional misstatement of fact by Ms. Radigan. If these letters and Petitioner's November 19, 1993 letter to Respondent all contained complaints of age discrimination, then it was appropriate for Ms. Radigan to report that fact, but there simply is insufficient evidence in this record to determine if that is what happened here.
Ms. Radigan's memorandum says nothing to the effect that Respondent should not hire Petitioner, that TCC should not hire him for itself, or that TCC should not recruit him for a position with Respondent. Nothing in the memorandum permits the inference that Ms. Radigan did anything except investigate the situation existing between Petitioner and TCC and report back to her superior all available information, including gossip about Petitioner from both the public and private sectors. Gossip is always reprehensible, but people talking about unspecified letters Petitioner wrote without more does not constitute retaliatory discrimination or age discrimination. Whether the situation between Petitioner and TCC had to do with TCC's failure to recruit Petitioner or with Petitioner's complaint about the cost of Respondent's contract with TCC to do its recruiting is unclear in this record. (P-12) (See Finding of Fact 55 above). If anything, the latter is more likely since in his Charge of Discrimination (P-2), even Petitioner described the Radigan memorandum as addressing "a matter only tangentially related to my employment possibilities."
Therefore, no retaliation discrimination for raising the issue of age discrimination has been clearly proven.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1) and Chapter 760, F.S.
It is not necessary to address Petitioner's problems getting access to records under The Public Records Act. Any dispute of that nature should have been filed in circuit court pursuant to the provisions of Section 119.11 F.S. at
the time the issue arose in September 1992. That type of dispute is extrajurisdictional to Chapter 760 F.S. and this forum.
Upon Findings of Fact 1-6, and 56, it is concluded that sufficient information was provided in the Charge of Discrimination and Petition for Relief by which Respondent was fully advised that it must defend as to all events that had occurred between early September 1992 and October 18, 1993 and that the theory of Petitioner's allegations encompassed both age discrimination and retaliation that was ongoing over that period of time but first revealed in the December 16, 1993 memorandum, which memorandum Petitioner did not know about until sometime after December 16, 1993.
Up until an amendment to Section 760.10(10) F.S., effective October 1, 1992, charges of discrimination had to be filed with the Florida Commission on Human Relations within 180 days of the event, unless the discrimination was somehow unknown to the Petitioner. Late discovery of discrimination sometimes led to a tolling of the statutory filing period. After the 1992 amendment, 365 days was the statutory filing period, subject to the same potential tolling concept.
Since the Charge of Discrimination herein was filed more than 365 days after the alleged discrimination of September 22, 1992 and since there is no way that any retaliation could be directed against Petitioner prior to his raising the age discrimination issue for the first time after that date, all allegedly discriminatory events up to September 22, 1992 are extrajurisdictional and cannot be considered. 6/
Upon consideration of Petitioner's argument that the alleged "retaliation" was discovered only after December 16, 1993 and related back, it is concluded that The Charge of Discrimination and Petition for Relief herein were timely as to all events alleged to have occurred after September 22, 1992.
Having said that, in order to prevail herein, Petitioner must prove all the necessary elements of discrimination.
The majority line of cases holds that to establish a prima facie case of age discrimination, Petitioner must prove (1) that he was between the ages of
40 and 70 at the time Respondent failed or refused to hire him; (2) that a person outside the protected group was hired for the position in question; and
(3) that he was qualified for the position at issue. McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), see also, Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991). Under that authority, this Petitioner has not established a prima facie case of age discrimination because he has failed to establish that anyone outside the protected age group was hired when he was not. The only successful hirees for whom this record provides any ages are Mr. Connery (age 45) and Mr. Bonner (age 53), and the evidence establishes no pattern of excluding persons over 40 years of age from interviews or hiring.
However, the case law establishing the protected class of aged persons as between 40 and 70 is not sancrosanct. Petitioner asserted that the better legal analysis was established in Goldstein v. Manhattan Industries, Inc. 758 F. 2d 1435 at 1442 (11th Cir. 1985), holding that "age is a continuum along which distinctions between employees are often subtle and relative ones . . . " Research by the undersigned reveals that on November 13, 1995, the United States Supreme Court took certiorari jurisdiction to determine the age continuum question in O'Connor v. Consolidated Coin Caterers Corporation, U.S. S. Ct. No.
95-354, even though the ruling below in O'Connor was in accord with that of the line of cases applying the age 40 to 70 rule. See, 56 F. 3d 542 (4th Circuit).
Even if a continuum test, rather than the absolute 40 to 70 years rule, were applied in the instant case, the evidence herein does not support Petitioner's claim of age discrimination. Clearly, Petitioner was not systematically excluded from interviewing on the basis of his age (see Findings of Fact 22, 24, and 41), and there is no clear-cut evidence to show that the Respondent rejected any age group. Respondent did not interview some people in their twenties and did interview some people in their fifties. Petitioner did not show that in filling any position, Respondent did not afford him a fair opportunity to compete due to his age or due to Respondent's attitude to his age. 7/
Assuming arguendo, but not ruling, that the continuum test means that Petitioner established a prima facie case because he showed that he was part of the protected age category, qualified for the job, and not hired in favor of someone younger, he still cannot prevail because Respondent has offered a plausible reason why Respondent did not interview Petitioner for each position and why he was not hired. That is all Respondent needs to do, because the employer has only the burden of production, not of persuasion.
The shifting burdens of proof in discrimination cases have most cogently been examined in Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991). They are:
Pursuant to the [Texas Department of Community Affairs v.] Burdine, <450 U.S. 248, 101 S.
Ct. 1089, 67 L. Ed. 207 (1981)] formula, the employee has the initial burden of establishing a prima facie case of intentional discrimina- tion which once established raises a presump- tion that the employer discriminated against the employee. If the presumption arises, the burden 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. Because the employer has the burden of production, not of persuasion, which remains with the employee, it 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. If such
proof is adequately presented, the employee
satisfies his or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been a victim of intentional discrimination.
Petitioner contended no-one could possibly misinterpret his applications in the manner described by Ms. Dalton, but her explanation is plausible. Her methodology in assigning eligibility credit based only on obvious and conforming terms was designed to facilitate a quick sorting procedure. The system is certainly less than perfect. It is clearly dogmatic, narrow-minded, and bureaucratic. It may even be a lazy system, particularly to the extent that Ms. Dalton initially did not give her full attention to Petitioner's listed employments which were remote in time. However, nothing discriminatory on the issue of age or retaliation was demonstrated to be part of it.
Ms. Radigan's memorandum written after all employment denial decisions already had been completed directly referenced only a letter of Petitioner also written after all employment decisions had been completed. Petitioner had no formal discrimination proceedings pending. Ignoring for the moment the lesser line of cases holding that internal and informal complaints about perceived discrimination cannot be the basis for a later retaliation claim, Petitioner still has not proven retaliation. A fair reading of the Radigan memorandum shows that it is as likely that it addressed Petitioner's complaint that the Respondent agency was spending too much money by contracting with unqualified persons and colleges as it is that it addressed his age discrimination complaints.
Again, assuming arguendo, but not ruling, that the Radigan memorandum may be read as retaliation from September 22, 1992 onward against Petitioner by a single employee, Ms. Radigan, that employee was not shown to be involved in any hiring process applicable to Petitioner. There is no evidence that Petitioner applied for any position after October 14, 1993. Moreover, Ms. Radigan's retaliation, if any, cannot be attributed to the potential employer.
Respondent, as the potential employer, presented clear, specific reasons (misunderstanding of Petitioner's qualifications) why Petitioner was not hired between September 1992 and October 1993.
On behalf of the potential employer, Ms. Dalton began helping Petitioner partly in response to his August 26, 1993 letter complaining of age discrimination. (See Finding of Fact 45.)
Even more to the point are the steps Ms. Dalton took on behalf of Respondent to help Petitioner with his job hunt after she recognized her mistake.
Ms. Dalton certified Petitioner eligible before he even filled out an application for the temporary job Ms. Nielsen had open in Marianna. Ms. Dalton gave him a list of all the current job openings for which he was eligible. She explained to him how to prepare an application that would help him sell himself to other potential hirers besides Ms. Nielsen within Respondent agency.
The fact that Ms. Nielsen never filled the temporary slot is sufficient to defeat Petitioner's case under the fourth prong of the premise enunciated by the court in Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991). 8/
Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final
order denying and dismissing the Petition for Relief.
RECOMMENDED this 14th day of December, 1995, at Tallahassee, Florida.
ELLA JANE P. 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 14th day of December, 1995.
ENDNOTES
1/ Since all of Respondent's letters denying Petitioner's applications suggest that he apply again for any other vacancies, it cannot be inferred that his applications in evidence "carried over" to any positions other than those specifically named.
2/ It would be entirely speculative and contrary to good logic to infer that all other applicants in this period of time gave their date of birth on their applications because in subsequent hiring situations several did not do so.
3/ The spread of ages interviewed and the age of the hiree present no discernable pattern favoring any age group. Even if it were clear that Petitioner were the only person in his sixties who applied, unless he were also the only person not interviewed, there would be no nexus showing pattern discrimination in granting interviews on the basis of age. The same is true as to hiring, but obviously no employer hires everyone who applies.
4/ See note 3, above.
5/ See note 3, above. Also, under the facts as presented, one can only speculate what the third hiree's age was.
6/ Assuming arguendo, that jurisdiction exists for this time period for any reason, Petitioner failed to present a prima facie case as to the time frame before September 22, 1992, because he did not establish that the Respondent knew, or even how the Respondent could have known Petitioner's age prior to its September 22, 1992 failure to hire him. Also, the mean age of all the applicants up to September 22, 1992 was not established in this record, so it is not clear whether any twenty-nine year olds or persons younger than Petitioner also were not interviewed as well as Petitioner, who was not interviewed and who was in his sixties. Additionally, no nexus between any other applicant's
qualifying credentials and Petitioner's qualifying credentials was put forth. Therefore, it is impossible to tell if those applicants interviewed prior to September 22, 1992 were more or less qualified than Petitioner, or if there was any pattern of refusing interviews to applicants of any age.
7/ Respondent has argued that all it must do to prevail herein is to show that the fourth prong of the test enunciated in Florida Department of Community Affairs v. Bryant, has not been met i.e. to show that after Petitioner's rejection, the position for which he had applied remained open and the employer continued to seek applicants from persons of complainant's qualifications." That argument is applicable to the last position applied for in Marianna, but does not apply to all the previous positions for which Petitioner was rejected
and someone else was hired. In those situations, Petitioner needed to show, and failed to show that he was systematically excluded from competition because he was in a protected class or that the Respondent hired someone of lesser qualifications who was not part of the protected class.
8/ See note 7, above.
APPENDIX TO RECOMMENDED ORDER 95-2043
The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).
Petitioner's PFOF:
Accepted except for the "never interviewed" part. See Finging of Fact 22, 24, and 41 referring to P-3.
Rejected because it discusses facts not in evidence with regard to the September 22, 1992 denial and is largely argumentation. With regard to Petitioner's argument that Respondent "faked" records (Exhibits R-3, R-6, R-8) to show that he applied for posts advertised 5/1/78, 6/1/79, and 5/24/90 when, in fact, he did not, Petitioner has misread by one digit the dates in the upper right hand corner of these exhibits which are 05/24/9?, 05/17/93, and 06/17/93, respectively. Therefore, his argument related to faked records is rejected, even though his proposal of facts that he never applied to Respondent before 1992 is accepted in Findings of Fact 12, 58, 63.
Rejected as not supported by the greater weight of the evidence for the reasons set forth in Finding of Fact 47 and the Conclusions of Law.
Rejected as not supported by the greater weight of the evidence for the reasons set forth in Findings of Fact 56-63 and the Conclusions of Law and as mostly mere argumentation.
Respondent's PFOF:
1-6. Proposed findings of facts accepted; proposed conclusions of law rejected and/or relegated to the Conclusions of Law in the Recommended Order.
COPIES FURNISHED:
D. Paul Sondel
333-D Mabry Street
Tallahassee, Florida 32304-3833
Charles A. Finkle, Esquire
D H R S District 2 Legal Office 2639 North Monroe Street Tallahassee, Florida 32399-2949
Ms. Sharon Moultry, Clerk
Florida Commission on Human Relations Building F, Suite 240
325 John Knox Road
Tallahassee, Flordia 32303-4149
Kim Tucker, Esquire General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Robert Powell, Agency Clerk Department of Health and
Rehabilitative Services 2639 North Monroe Street Tallahassee, Florida 32303
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.
| Issue Date | Proceedings |
|---|---|
| Sep. 30, 1996 | Final Order Dismissing Petition for relief From An Unlawful Employment Practice filed. |
| Dec. 20, 1995 | Corrected Recommended Order sent out. |
| Dec. 14, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 09/29/95. |
| Dec. 06, 1995 | Letter to Hearing Officer from D. Paul Sondel Re: New address filed. |
| Oct. 24, 1995 | (Respondent) Proposed Findings of Fact, and Conclusions of Law filed. |
| Oct. 23, 1995 | Order Extending Time sent out. (Proposed Recommended Order`s due 10/24/95) |
| Oct. 23, 1995 | Petitioner`s Proposed Findings of Fact, With Proposed Conclusions of Law and Recommendations filed. |
| Oct. 18, 1995 | (Respondent) Unopposed Motion for Extension of Time Within Which to File Initial Brief filed. |
| Oct. 02, 1995 | Post-Hearing Order sent out. |
| Sep. 29, 1995 | Exhibits filed. |
| Aug. 08, 1995 | Order of Continuance to Date Certain sent out. (hearing rescheduled for 9/29/95; 9:30am; Tallahassee) |
| Jul. 31, 1995 | Motion for Continuance (Respondent) filed. |
| Jul. 25, 1995 | (Joint) Prehearing Stipulation filed. |
| Jun. 26, 1995 | Notice of Hearing sent out. (hearing set for 8/8/95; 9:30am; Tallahassee) |
| Jun. 26, 1995 | Order of Prehearing Instructions sent out. |
| Jun. 14, 1995 | (Respondent) Response to Initial Order filed. |
| Jun. 14, 1995 | Petitioner`s Response to Order of 5/31/95 filed. |
| May 31, 1995 | Order sent out. (Petitioner`s letter/Motion to recuse is denied) |
| May 26, 1995 | Letter to Hearing Officer from D. Paul Sondel (cc: Hearing Officer) Re: Letter dated May 7, 1995 filed. |
| May 15, 1995 | (Respondent) Response to Petition for Relief filed. |
| May 10, 1995 | Letter to E. J. Davis from D. Paul Sondel filed regarding Hearing Officer`s knowledge of employment and age discrimination. |
| May 01, 1995 | Initial Order issued. |
| Apr. 27, 1995 | Transmittal of Petition; Charge of Discrimination; Notice of Determination: No Cause; Determination: No Cause; Petition for Relief; Notice to Respondent of Filing of Petition for Relief from an Unlawful Employment Practice filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 20, 1996 | Agency Final Order | |
| Dec. 14, 1995 | Recommended Order | Discrimination could not occur before employer knew petitioner's age. Burden of proof not met by petitioner in any timeframe. |
