STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAY BALAGUER, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2869

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Administrative Law Judge, on September 20, 1996, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Ray Balaguer

4860 Brighton Drive

Jacksonville, Florida 32217-4712

For Respondent: William M. Woodyard, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUE

Whether the Respondent discriminated against the Petitioner, a 52 year-old male, on the basis of sex and age in its promotional practices.

PRELIMINARY STATEMENT

The Petitioner filed a discrimination claim on the basis of age alleging that the Respondent did not promote him for a position for which he was qualified. The Florida Commission on Human Relations investigated and made a determination of "no cause." The Petitioner requested a formal hearing and the Commission forwarded the case to the Division of Administrative Hearings.

The case was set for hearing and heard as set. The Parties called Mark Allen Willingham, Geraldine Austin, John Szabo, Wendell Reeves, Barry Schoenfelds, William Culbreth and David Myers to testify. The Petitioner introduced documentary exhibits, P1 through P3. The Respondent introduced documentary exhibits, R1 through R7.

After the hearing, the parties submitted proposed findings, which were read and considered.

FINDINGS OF FACT

1. The Petitioner, Raymond Balaguer, is a 52 year-old male. He is a law enforcement officer with the title of Special Agent with the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. He has held that position in the Jacksonville District Office for approximately the last thirty (30) years.

   
   

2. The Respondent, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Agency), is the governmental agency charged with the regulation and enforcement of Chapters 561, 562 and 563, Florida Statutes. At all times material, the Agency was the employer of the Petitioner and Special Agent Elizabeth Doyle.

   
   

3. Elizabeth Doyle is a 39 year-old female. At all times pertinent, she was a law enforcement officer with the title of Special Agent with the Agency.

   
   

4. In May of 1994, the Agency considered applications for promotion to the position of law enforcement sergeant for the Jacksonville District Office of the Division of Alcoholic Beverages and Tobacco.

   
   

5. Pursuant to Department of Management Services rules and the Police Benevolent Association contract, all candidates for promotion to the position of law enforcement sergeant were required to take and pass a law enforcement sergeant's written examination in order to be eligible for the class. The Agency's procedure was to select an interview panel to interview those candidates achieving the five highest numerical scores on the written law enforcement sergeant's examination who have applied for a vacant position in the specific county.

   
   

6. Immediately after the interviews, the panel considered and discussed the applicants' test scores, interviews, and personnel files. The panel recommended to the Division's Director the most suitable candidate for promotion to the open position.

   
   

7. The Petitioner, a male at age 52, applied for promotion to the position of law enforcement sergeant in the Jacksonville District Office.

   
   

8. The Petitioner received a score of 74 percent on the written law enforcement sergeant's exam. The Petitioner had 26 1/2 years of experience with the Division, and significant formal education to include a Master's degree. Petitioner had additional administrative experience as a warrant officer in the active Marine Reserve. The Petitioner had served on a state wide Department Committee to study licensing policy and procedure. The Petitioner has completed all required in-service training.

   
   

9. Special Agent Doyle, a female at age 39, applied for promotion to the same vacant position of law enforcement sergeant in the Jacksonville District Office.

   
   

10. Special Agent Doyle received a score of 85 percent on the law enforcement sergeant's exam. She had six years of experience with the Department. She received the highest written examination score of the candidates who applied for and interviewed for the Jacksonville position. She did not have a baccalaureate degree.

11. The Department has traditionally emphasized formal education as a basis for promotion.

    
    

12. Special Agent Doyle and the Petitioner and three other candidates were interviewed by the same interview panel composed of the three Bureau Chiefs in the Division and two Captains. The panel asked all of the candidates the same questions relating to a law enforcement sergeant's duties.

    
    

13. Special Agent Doyle filed a resume of her accomplishments with the panel. The Petitioner was not advised of the opportunity to file a resume with the panel and did not do so.

    
    

14. Special Agent Doyle had a very strong interview, and answered the questions put to her in a manner that impressed the panel while the Petitioner's interview was unremarkable.

    
    

15. The panel considered the applicants' test scores, interviews and personnel files. There was no consideration of the candidates' formal education. The panel discussed the five candidates for promotion to the Jacksonville District Office law enforcement sergeant position. The panel considered Special Agent Doyle's resume. The panel unanimously determined Special Agent Doyle was the most suitable candidate for the promotion. The panel forwarded its unanimous recommendation to the Division's Director to promote Special Agent Doyle.

    
    

16. The Division Director promoted Special Agent Doyle to the position of sergeant for the Jacksonville District Office in the Division of Alcoholic Beverages and Tobacco.

    
    

17. Special Agent Doyle was considered "highly motivated" because of seeking a position as training officer.

    
    

18. Licensing is an integral part of the duties of a law enforcement sergeant. Special Agent Doyle was considered skilled in licensing as a result of being a training officer and her scores on the examination and interview.

    
    

19. The Petitioner's supervisor of 11 years, who interviewed both Special Agent Doyle and the Petitioner, found the Petitioner was not as skilled in licensing as Special Agent Doyle not because his answers were wrong, but because they reflected a management style or approach which was less compatible with his than was Special Agent Doyle's management style.

    
    

20. No direct evidence was presented that anyone suggested the selection of Special Agent Doyle to the members of the interviewing panel or attempted to influence the panel's selection of Special Agent Doyle. Evidence was received that the Agency was not under any court or commission order to employee minorities.

    
    

21. The supervisor testified that another member of the panel stated that promotion of Doyle would help the Department meet its equal opportunity goals regarding the promotion of minorities.

    
    

22. In June of 1994 at the time of Special Agent Doyle's promotion, the Agency employed 19 sergeants. Of that number, 17 were males and two were female. Of those 17 sergeants, nine were age 40 or older when they were promoted, and four of the nine were age 50 or older when they were promoted.

23. Sgt. Doyle was subsequently discharged for reasons relating to her conduct.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

    
    

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

    
    

26. The Petitioner, a 52 year-old male, alleges discrimination on the basis of sex and age. The Petitioner showed he was of an age to be in a protected class for this position. The Petitioner showed he had 26 years of experience with the Agency, had performed the duties of an acting sergeant, and had met the Department's previously stated expectations regarding formal education having attained a master's degree. He had a passing score on the sergeant's examination, and his answers on the interview were deemed correct, but not as consistent with the management philosophy of his supervisor as Doyle's. He was qualified for this position by education and experience and was interviewed for the position. He had considerable administrative experience as a warrant officer in the active Marine Reserve. The panel did not recommend the Petitioner, but promoted a 39 year old female who had been with the department for six years and had an associates decree.

    
    

27. The Petitioner showed evidence of a comment made by an unidentified member of the panel that promotion of a female was desirable in terms of the agency's equal opportunity goals. While this comment might appear innocuous, it reflects a bias based upon sex which was accepted and went unchallenged by the other members of the panel all of whom were senior officers in the agency. By itself, the comment might not prove that their decision was based upon gender; however, the unchallenged comment reflecting gender bias indicated these senior officers thought the promotion of females was a part of the agency's employment and promotion goals even though the agency was not under orders to hire or promote minorities. Moreover, the record also shows that Ms. Doyle alone filed a resume which was considered by the panel and the panel did not consider the education of the applicants in accordance with historic precedent. This is indicative of disparate treatment in the promotion process which was clearly subjective at the point of the interview.

    
    

28. To the extent that their selection was influenced by the gender of Ms. Doyle, their decision was unlawful. Such a bias is prohibited by Florida law even to attain desirable ends. The comment reflecting the mindset of the panel, the consideration of Ms. Doyle's resume, the failure to consider traditional criteria, and the subjectivity of the interview shows a bias based upon gender in the process. Upon this evidence of gender bias, the burden shifted to the agency not merely to articulate a valid, non-discriminatory basis for its action, but to show by a preponderance of the evidence that its non- discriminatory reasons for promoting Ms. Doyle predominated in her selection. The Agency failed to carry this burden. The Petitioner carried his burden to show he was discriminated against because of his gender.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED that the Commission enter its Final Order directing that:

1. The Agency cease and desist from gender discrimination; and

   
   

2. The Agency promote the Petitioner to sergeant in the Jacksonville office.

DONE and ENTERED this 12th day of November, 1996, in Tallahassee, Florida.

COPIES FURNISHED:

Ray Balaguer

4860 Brighton Drive

Jacksonville, FL 32217-4712

William M. Woodyard, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750

Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

Dana Baird, Esquire Commission on Human Relations Building F, Suite 240

325 John Knox Road Tallahassee, FL 32303-4149

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1996.

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-002869

Orders for Case No: 96-002869