STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NADER F. FAHAMI, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4954

) FLORIDA DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on January 9, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Nader F. Fahami, pro se

5800 University Boulevard, West 119

Jacksonville, Florida 32216

For Respondent: Ernest L. Reddick

Assistant General Counsel

Florida Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, the Department of Corrections, discriminated against Petitioner, Nader F. Fahami, on the basis of his race, Asian, and his national origin, "Iranian".

PRELIMINARY STATEMENT

On or about April 8, 1994, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (hererinafter referred to as the "Commission"). Petitioner alleged that he had been discriminated against by Respondent on the basis of "my Race, Asian, and National Origin, Iran "

On or about June 13, 1995, the Commission issued a Notice of Determination: Cause. Cause was found due to the failure of Respondent to file a Position Statement.

On or about August 18, 1995, the Commission entered a Notice of Dismissal. The Dismissal was entered due to a belief that Petitioner had failed to file a Petition for Relief. Petitioner had, in fact, filed a Petition for Relief on July 6, 1995. Therefore, the Dismissal was rescinded on September 8, 1995.

On October 11, 1995, the Petition for Relief was filed with the Division of Administrative Hearings. The matter was assigned to the undersigned.

At the final hearing, Petitioner testified on his own behalf. Petitioner also offered 18 exhibits. Petitioner's exhibits 1, 4, 6-8, 11 and 15-16 were accepted into evidence. The remainder of Petitioner's exhibits were accepted into evidence, but only to the extent ultimately determined to be relevant and not hearsay. None of those exhibits have been found to be relevant.

Respondent presented the testimony of Andres Santana. Respondent also offered 7 exhibits. Those exhibits were accepted into evidence without objection.

Official recognition of Chapter 110, Florida Statutes, and Chapters 60K-3 and 60L-13, Florida Administrative Code, was requested by Respondent. Without objection, the request was granted.

No transcript of the final hearing was filed. Proposed recommended orders were required to be filed on or before January 19, 1996. Respondent timely filed a proposed order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. Petitioner did not file a proposed order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, Nader F. Fahami, was born in Iran. Mr. Fahami's race is considered "Asian" for purposes of this proceeding. Mr. Fahami has lived in the United States for approximately 16 years.

      
      

   2. The Department of Corrections (hereinafter referred to as the "Department"), is an agency of the State of Florida. Among other things, the Department is responsible for the design of facilities used to house inmates under the supervision of the Department.

      
      

   3. The design of facilities is the responsibility of the Bureau of Facility Services (hereinafter referred to as the "Bureau"), of the Department. Mr. Andres Santana is the Engineer Supervisor of the Bureau. Mr. Santana is an Hispanic male.

      
      

2. Mr. Fahami's Qualifications for Employment.

   
   

   1. Mr. Fahami has been awarded a B.A. degree in architecture from Florida A & M University. Mr. Fahami has also been awarded a B.S. degree in Architectural Technology from Florida International University.

      
      

   2. Mr. Fahami has experience in engineering drafting.

      
      

   3. Mr. Fahami lacks working knowledge and experience with "computer aid drafting" or "CAD". CAD is a computer program utilized by the Bureau in its drafting work.

      
      

3. Mr. Fahami's Application for Employment.

   1. During 1992, Mr. Fahami contacted Mr. Santana about employment with the Department. Although there were no employment opportunities available for Mr. Fahami at that time, Mr. Santana suggested that Mr. Fahami file a State of Florida employment application and resume in case future positions opened.

      
      

   2. In October of 1993, an Engineer I position became available with the Bureau and was advertised. Mr. Fahami filed an application for the position.

      
      

   3. Mr. Fahami was interviewed by Mr. Santana. Mr. Fahami was one of 17 applicants Mr. Santana and his immediate supervisor agreed to grant interviews to.

      
      

   4. The interviews for the Engineer I position consisted of asking applicants questions which they were allowed to answer verbally, and a written test. Mr. Fahami only correctly answered 8 of the twenty written questions, the lowest of any applicant. In fact, Mr. Fahami's score is the lowest ever achieved by the approximately 50 different individuals that have taken the written test for various positions with the Bureau.

      
      

   5. Mr. Fahami was not hired for the Engineer I position.

      
      

   6. During the first three months of 1994 the Department hired 3 architectural drafts-persons. The positions were to be paid for out of "Other Personnel Services" and are referred to as "OPS" positions.

      
      

   7. The first OPS position was advertised in the Tallahassee Democrat.

      The Bureau was looking for someone with a strong background in plumbing, heating and air conditioning and electrical drafting. The Bureau was also looking for someone with CAD experience.

      
      

   8. Mr. Fahami was interviewed by Mr. Santana for the first OPS position. Mr. Fahami's application for the position in October of 1993 had been maintained by the Department. Mr. Fahami was not, however, offered the position.

      
      

   9. Michael Kirkland was hired to fill the first OPS position. Mr. Kirkland, a white male, had 5 years of architectural drafting experience and 11 years of plumbing, air conditioning and electrical drafting experience. Mr. Fahami only had 4 years of architectural drafting experience and 3 years of plumbing, air conditioning and electrical drafting experience.

      
      

   10. A second OPS position was created because Mr. Kirkland could not report to work until he had given his former employer 2 weeks notice. For the second OPS position the Bureau was looking for someone with good manual drafting skills and experience in computer drafting.

       
       

   11. Mr. Fahami was not interviewed for the second OPS position since he had just been interviewed for the first position.

       
       

   12. Mr. Fahami was not offered the second OPS position. Maria Caspary, an Hispanic woman, was hired for the second OPS position. Ms. Caspary had 5 years of architectural manual drafting and 1 year of CAD experience. Ms. Caspary had been awarded bachelor degrees in design and in architecture.

       
       

   13. The third OPS position was created in February of 1994. For this position the Bureau was seeking a person with CAD experience. Mr. Fahami was not interviewed for this position either because of his recent interview.

   14. Mr. Fahami was also not hired by the third OPS position. Maria Yebra, an Hispanic woman, was hired for the third OPS position. Ms. Yebra had 2 years of CAD experience. She had also been awarded bachelor degrees in design and in architecture.

       
       

   15. In addition to the OPS positions created in 1994, the Department created another OPS position in March of 1995. The Bureau was seeking an individual with manual and computer drafting skills.

       
       

   16. Mr. Fahami was not interviewed for the OPS position created in March of 1995. Nor was Mr. Fahami hired for the position.

       
       

   17. The OPS position created in March of 1995 was filled by Luis Lara, an Hispanic male. Mr. Lara had earned bachelor and masters degrees in architecture. Mr. Lara also had 8 years of drafting experience, including 2 years experience with CAD.

       
       

4. The Department's Employment Decisions.

1. In all four of the employment decisions related, supra, Mr. Santana recommended that his immediate supervisor, Mr. Steve Watson, hire the individual ultimately hired by the Department for the OPS positions.

   
   

2. The evidence failed to prove that Mr. Santana's recommendations were not related to the education and relevant experience of the individuals he recommended for the OPS positions as compared to Mr. Fahami's education and relevant experience. The evidence also failed to prove that Mr. Santana took into account Mr. Fahami's race or national origin in deciding not to recommend him for employment.

   
   

3. The evidence failed to prove that Mr. Watson made the decision to hire Mr. Kirkland, Ms. Caspary, Ms. Yebra or Mr. Lara based upon their race or national origin. The evidence also failed to prove that Mr. Watson failed to hire Mr. Fahami because of his race or national origin.

   
   

4. The evidence failed to prove that Mr. Fahami was more qualified than any of the individuals hired by the Department for the OPS positions at issue or that his race or national origin played any role in the Department's decision not to hire him.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

5. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

   1. The Elements of Discriminatory Conduct; The Burden of Proof.

6. The Florida Human Rights Act, Section 760.01-760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer to fail or refuse to hire any individual because of, among other things, the individual's race or national origin. Section 760.10(1)(a), Florida Statutes.

7. Mr. Fahami had the ultimate burden of proving by a preponderance of the evidence that the Department intentionally discriminated against him because of his race or national origin. McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973); Irby v. Allstate Insurance Co., 12 F.A.L.R. 2034, 2037 (Florida Commission on Human Relations 1989); and Martin v. Monsanto Co., 10 F.A.L.R. 3886, 3896 (Florida Commission on Human Relations 1988).

   
   

8. Discriminatory motive or intent may be proved by direct evidence or statistical evidence. Additionally, since discriminatory motive or intent is seldom capable of proof by direct evidence, the United States Supreme Court has established a multi-step analytical model which allows discriminatory motive or intent to be inferred on the basis of circumstantial evidence. Perryman v. Johnson, 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas, 411

   U.S. at 802-804. See also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-256 (1981).

   
   

9. The Commission has adopted the following analytical model for analyzing cases under the Florida Human Rights Act, Section 760.01-760.10, Florida Statutes:

   
   

   1. The individual must present a prima facie case of discrimination;

   2. If the individual presents a prima facie case of discrimination, the employer must adequately rebut the presumption of discrimina- tion by articulating a legitimate, nondiscri- minatory reason for its actions; and

   3. The individual must prove that the employer's articulated reason for its actions was merely a pretect.

      
      

      1. Mr. Fahami's Prima Facie Case.

         
         

10. In determining whether discrimination has occurred, the Commission requires proof of the following elements, adopted from the federal courts, in order for an individual to prove a prima facie case of discriminatory conduct in refusing to hire the individual:

    
    

    1. that the individual belongs to a group protected by the statute;

    2. that the individual was qualified for the position they applied for;

    3. that the individual applied for the position; and

    4. that the employer hired a person not in the individual's protected class or that, after rejection, the position remained open and the employer continued to seek appli- cations from persons with the rejected applicant's qualifications.

       
       

       See Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991). See also St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); McDonnell Douglas; Trumbull v. Health Care & Retirement Corporation of America, 756 F. Supp. 532 (M.D. Fla. 1991), aff'd, 949 F.2d 1162; Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991);

       and National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988).

       
       

11. Mr. Fahami proved that he belongs to a group protected by the statute: he is a native of Iran and his race is Asian.

    
    

12. Mr. Fahami also proved that he was qualified for the positions at issue in this proceeding and that he applied, or was considered to have applied, for those positions by the Department.

    
    

13. Finally, the evidence proved that the positions that Mr. Fahami applied for were filled by individuals that were not members of his race or national origin.

    
    

14. Mr. Fahami has proved a prima facie case of discrimination.

    
    

    1. The Department's Legitimate, Nondiscrimina- tory Reason for Not Hiring Mr. Fahami; Mr. Fahami Failed to Prove the Reason was a Pretect.

    
    

15. Having presented a prima facie case of discrimination, the Department was required to articulate a legitimate, nondiscriminatory reason for its failure to hire Mr. Fahami. The Department met its burden.

    
    

16. The evidence in this case proved that the individuals hired by the Department of lieu of Mr. Fahami were more qualified for the positions he sought.

    
    

17. Considering all the evidence in this case, Mr. Fahami failed to prove that the Department's reasons for not hiring him were unreasonable and merely a pretect.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on

Human Relations dismissing Nader Fahami's Petition for Relief.

DONE AND ENTERED this 9th day of February, 1996, in Tallahassee Florida.

LARRY J. SARTIN, 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 9th day of February, 1996.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 95-4954

The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Fahami did not file a proposed order.

The Department's Proposed Findings of Fact

COPIES FURNISHED:

Nader F. Fahami

5800 University Boulevard; West 119

Jacksonville, Florida 32216

J. D. Lester, Supervisor Department of Corrections Civil Rights Unit

2601 Blairstone Road, Room 300

Tallahassee, Florida 32399-2500

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Harry K. Singletary, Jr., Secretary Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas, Esquire Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 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.

Docket for Case No: 95-004954

Orders for Case No: 95-004954