STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE LEE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2044

) SCHOOL BOARD OF ALACHUA COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above style case by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on September 12, 1995 in Gainesville, Florida.

APPEARANCES

For Petitioner: Monroe Lee, pro se

Post Office Box 43 Alachua, Florida 32615

For Respondent: Thomas L. Wittmer, Esquire

620 East University Avenue Gainesville, Florida 32601

STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent discriminated against the Petitioner by refusing to hire the Petitioner because of Petitioner's race.

PRELIMINARY STATEMENT

The Petitioner, a Black male, applied for a position as a senior drafting technician advertised by the Alachua County School Board, the Respondent. The advertisement provided that the minimum requirements were "graduation from High School or Completion of GED; three (3) years experience in drafting and architectural design under the direction of an architect or engineer; or an equivalent combination of training and experience. Graduation from a college of architecture or engineering preferred."

The Petitioner alleges that he was qualified by education and experience for employment in the position. Further, the Respondent interviewed a number of applicants, but not the Petitioner, and hired a white male who was qualified for the position. The Respondent asserts that it considered Petitioner's application, but hired the white male because he had a Bachelor's Degree in Building Construction and was considered by Respondent's agents to be more qualified that the persons interviewed and the Petitioner. The case turns upon whether the business reason offered by the Respondent is pretextual.

The Respondent filed a proposed order which was read and considered. The Petitioner was afforded the opportunity to file a proposed order, but did not. The Appendix to this order states which of the Respondent's proposed findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. The Respondent is the School Board of Alachua County, Florida. The Respondent advertised to hire a senior drafting technician in June of 1993. The minimum qualifications for this position were "graduation from High School or Completion of GED; three (3) years experience in drafting and architectural design under the direction of an architect or engineer; or an equivalent combination of training and experience. Graduation from a college of architecture or engineering preferred."

   
   

2. The Petitioner, Monroe Lee, is a Black male who attended North Florida Junior College from 1970 to 1973, obtaining a 1080 hour certificate in engineering design. In 1979-80, the Petitioner completed another training program in civil engineering design. The Petitioner has been employed as a engineering draftsman by several architecture and engineering companies since 1973. His duties have included drafting, project design, and project management. Since 1991, he has been self-employed in his own architectural firm employing an architect.

   
   

3. In August 1993, the Petitioner applied for the senior drafting technician's position advertised by the Respondent. Attached to the application was an card entitled "Data for Affirmative Action", which asked for information on the race, sex, and similar information from the applicant. This card is separated from applications by the personnel office and maintained for tracking compliance with affirmative action laws. Completion of the card is not required, but the Petitioner filled out the card attached to his application.

   
   

4. Approximately 25 applications were received for this position. The applications were screened in the fall of 1993 by the Respondent's Supervisor of Personnel, who selected to be interviewed seven individuals, who she determined were the most qualified. Interviews were conducted on January 10 and 11, 1994, by a committee from the Respondent's Planning and Construction Department. Ultimately, no hiring decision was made because of uncertainty about the availability of funds due to a budgetary crisis.

   
   

5. During the pendency of his application, the Petitioner made numerous inquiries at the personnel office regarding the status of his application. It appeared that his application was misplaced, and the personnel office had difficulty responding to his inquiries. Because of his visits, the Petitioner became well known to the Respondent's staff.

   
   

6. In January or February, 1994, the Petitioner filed a complaint of discrimination in hiring against Respondent regarding this application. The complaint was investigated by the Florida Commission of Human Relations, and the Respondent answered inquiries from the Commission on March 1, 1994. It was determined that the Respondent had not discriminated against the Petitioner.

   
   

7. In March 1994, the Respondent readvertised the position of Senior Drafting Technician. Applications were accepted between March 14-18, 1994, and the Petitioner reactivated his application for the position.

8. The Supervisor of Personnel again screened the applications. Again, the Petitioner was not selected to be interviewed. Of those selected to be interviewed, at least one was Black, and one female applicant had a Bachelors degree in fine arts and two female applicants had Bachelors degrees in interior design. Of those not selected for employment at least two individuals had training and experience equal to the Petitioner's. The Supervisor of Personnel emphasized selection on the basis of applicants having degrees.

   
   

9. Harry Burns, a White male, applied for the position when it was readvertised. Burns obtained an A.A. from Santa Fe Community college in 1990 and a B.A. in building construction from the University of Florida. Burns had also completed technical courses in the U.S. Air Force. He had worked for four employers since 1987 as a carpenter, managing projects, field surveying, doing traffic counts, drafting, and using a computer. Burns was hired for the position on May 9, 1994.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties, and this order is entered pursuant to Section 120.57, Florida Statutes.

    
    

11. The Petitioner alleges that he was discriminated against by the Respondent which did not hire him for the position as Senior Drafting Technician because of his race. Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer to fail or refuse to hire any individual because of the individual's race. The Petitioner is Black male, and the Respondent is an employer as defined by the act. The Petitioner makes a prima facie showing of employment discrimination when he shows that he belongs to a minority race, that he applied for a job for which he was qualified and for which the employer was seeking applicants, that he was rejected despite his qualifications, and that the employer kept the job open after the minority applicant was rejected or hired a person of the majority race to fill the position. The Respondent concedes in its Proposed Order that the Petitioner made a prima facie showing.

    
    

12. The burden shifts to the Respondent to articulate a legitimate, nondiscriminatory reason for rejecting the Petitioner. The Respondent offered evidence that it had not filled the position in February 1994 because of concerns about having enough money in the budget to fill the position, and did not consider the Petitioner when the position was readvertised because there were better qualified applicants, three of whom had college degrees, from whom to select.

    
    

13. In looking at the nature of the Board's position, it is noted that the minimum qualifications are not for a college graduate, but for a high school graduate or person with a GED with three years of experience in drafting and architectural design under the direction of an architect or engineer, or an equivalent combination of training and experience. The Petitioner readily exceeded these minimum qualifications.

    
    

14. Graduation from a college of architecture or engineering was advertised as being preferred, but not required, yet the person making the selection made this the primary criteria for selection and selected several college graduates to be interviewed for the position. The person employed was presumably selected because he received an associate of arts degree in 1990, and subsequently attended the University of Florida obtaining a bachelor's degree in

building construction. This individual was selected in preference to others who were interviewed who included a female with a Bachelor's in Fine Arts, and two females with Bachelors of Science degrees in Interior Design. There were other non-degree holding applicants who had experience on a par with the Petitioner who were not employed. It appears that the selection was based more upon having a college degree than upon experience; which is a legitimate business decision. While others might not agree with this method, it is not an indication of racial discrimination. The Petitioner failed to show that the Board's decision was pretextual.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED:

That the Florida Commission on Human Relations dismiss the Petitioner's complaint.

DONE and ENTERED this 31st day of October, 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 31st day of October, 1995.

APPENDIX TO RECOMMENDED ORDER CASE NO. 95-2044

Respondent submitted findings which were read and considered. The following states which of the findings were adopted, which were rejected and why:

Petitioner's Recommended Order Findings

Paragraph 10 Paragraph 9

Paragraph 11 Paragraph 9

Paragraph 12 Irrelevant

COPIES FURNISHED:

Monroe Lee

Post Office Box 43 Alachua, FL

Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, FL 32601

Robert W. Hughes, Superintendent Alachua County School Board

620 East University Avenue Gainesville, FL 32601-5498

Frank T. Brogan, Commissioner Department of Education

The Capitol

Tallahassee, FL 32399-0400

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4113

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. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 95-002044

Orders for Case No: 95-002044