STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYDNEY L. MCCRAY, )

)

Petitioner, )

)

vs. ) Case No. 96-4383

)

CITY OF MILTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before William A. Buzzett, Administrative Law Judge with the Division of Administrative Hearings, on January 21, 1997, in Milton, Florida.

APPEARANCES

For Petitioner: Bruce Committee, Esquire

8870 Thunderbird Drive

Pensacola, Florida 32514-5661

For Respondent: Roy V. Andrews, Esquire

Post Office Box 586 Milton, Florida 32572

STATEMENT OF THE ISSUE

Whether the City of Milton failed to accept an employment application from Sydney McCray on the basis of race or national origin, thereby committing an unlawful employment practice.

PRELIMINARY STATEMENT

This cause arose on June 20, 1995, when Petitioner, Sydney McCray, filed a complaint of discrimination with the Florida Commission on Human Relations alleging that the Respondent, City of Milton (City), had violated the Florida Civil Rights Act of 1994 (FCHR No. 94-8906). On July 12, 1996, the Florida Commission on Human Relations made a "no cause" determination on Mr. McCray's claim. Subsequently, pursuant to section

760.11(7), Florida Statutes, Mr. McCray timely availed himself of the right to a formal hearing. The matter was referred by the Florida Human Relations Commission to the Division of Administrative Hearings for a formal hearing on November 18, 1996, and assigned to the undersigned administrative law judge for adjudication. Subsequently, Mr. McCray filed a Motion for Continuance stating that because he was incarcerated by the Florida Department of Corrections in Starke, Florida, and because he would not be released until December 31, 1996, he was not able to attend the hearing as scheduled. Based on the Motion for Continuance, the undersigned granted the motion and rescheduled the hearing for January 21, 1997.

At the hearing, Mr. Bruce Committee appeared as counsel for Mr. McCray. Mr. Committee called Mr. McCray and Ms. Alicia Larkins, the Petitioner's sister, and offered no exhibits. The City called five witnesses and offered four exhibits. All the exhibits were accepted. In addition, the City filed the depositions of Alicia Larkins and Sydney McCray. Pursuant to section 90.616(2)(b), Florida Statutes, Mr. William R. Whitson, the City Manager for the City of Milton, was designated as the City's representative. The parties did not invoke the rule of sequestration.

The City elected to transcribe the proceedings. At the hearing, the parties requested the right to file proposed findings of fact and conclusions of law in the form of proposed recommended orders. The proposed recommended orders of the parties were received and subsequently considered.

FINDINGS OF FACT

1. The City is an employer under the Florida Civil Rights

   Act.

   
   

2. Mr. McCray is a male African-American, and he is a

   member of a protected class.

   
   

3. In his complaint, Mr. McCray claims that on April 4, 1994, the City discriminated against him by failing to hire him for the position of laborer (maintenance worker). Specifically, Mr. McCray alleged that in response to a newspaper advertisement for a laborer's position, he and his sister, Alice Larkins, contacted the City Manager's office for the purpose of submitting their employment applications.

4. Both Mr. McCray and Ms. Larkins asserted that they arrived at the office of Mr. Whitson, the City Manager, at the appointed time, and that they waited over an hour to see Mr. Whitson. After waiting an hour, both Mr. McCray and Ms. Larkins left without ever meeting Mr. Whitson. Mr. McCray asserts that Mr. Whitson failed to meet with him or receive his employment application because of his race.

   
   

5. The City disputes Mr. McCray's claims for several reasons. First, the City provided evidence to contradict Mr. McCray's position that he first learned of the laborer position through an advertisement. Several city employees testified that the City only advertises skilled positions and that the unskilled positions, such as maintenance positions, are handled through the Public Works Department without advertisement.

   
   

6. With regard to the Public Works Department, testimony was also received that indicated the process for receiving applications for laborer positions. In particular, it was stated that applications for laborer positions are processed by the Public Works Department and that once the applicant has been interviewed, all qualified applicants are placed on a list for future vacancies. The record is clear that Mr. McCray never applied for a laborer position through the established procedure.

   
   

7. Second, even if the position was advertised as stated by Mr. McCray, the City disputes that Mr. Whitson's office would have ever made an appointment for Mr. McCray. As indicated above, the prospective laborers are processed by the Public Works Department. Mr. Whitson testified that he plays no role in screening laborer applicants and that he is purposefully insulated from the hiring process. Therefore, it makes no sense that his office would have arranged an interview as asserted by Mr. McCray.

   
   

8. Third, in addition to Mr. Whitson's lack of involvement in the employment process for prospective laborers, all the testimony received at the hearing supports a finding that Mr. McCray did not have an appointment with the City manager. Specifically, several City employees, including Mr. Whitson's personal secretary, testified that neither Mr. McCray nor his sister ever had an appointment with Mr. Whitson. They also testified that neither person appeared at Mr. Whitson's office on April 4, 1994.

9. When pressed on the date and time of the alleged appointment with Mr. Whitson, Mr. McCray was unable to articulate consistently when the meeting was to take place. Mr. McCray appeared confused and his answers varied from his earlier deposition testimony and the testimony of his sister.

   
   

10. Furthermore, based on the records maintained by the City of Milton, Mr. McCray never submitted an application for the position of "Laborer" with the Public Works Department of the City of Milton.

    
    

11. Mr. McCray attempts to supplement his claim of discrimination by establishing that the City of Milton has systematically discriminated against him by failing on more than one occasion to hire him. Specifically, Mr. McCray stated that prior to April 4, 1994, he applied for other positions with the City of Milton, and he was denied such positions. In particular, Mr. McCray stated that he applied for the position of mechanic and technician.

    
    

12. In both instances raised by Mr. McCray, however, it appears, based on the record, that he either failed to adequately complete his job application or he failed to possess the minimum qualifications for the positions sought.

    
    

13. As further evidence supporting his claim, Mr. McCray offered the testimony of his sister, Alicia Larkin. Ms. Larkin testified that she, like her brother, was the subject of discrimination by the City. The undersigned dismissed her testimony as lacking relevancy and more importantly lacking credibility. First, Ms. Larkin has a claim pending against the City alleging similar discriminatory practices and she appears to have a bias against the City. Second, Ms. Larkin's testimony lacked consistency and lacked credibility.

    
    

14. No evidence was presented to indicate that the City of Milton discriminated in its employment practices. Furthermore, the City presented testimony that it has and continues to develop fair employment practices relating to minorities. Specifically, the City of Milton, through Mr. Whitson, has met with the NAACP for the purpose of continuing to improve race relations between the City and the African-American community in Milton.

    
    

15. In summary, the City has effectively rebutted the allegations raised by Mr. McCray. The City offered a series of witnesses that had personal knowledge of the employment policies

    and hiring practices of the City and each corroborated the other. Those witnesses collectively support a finding that the City did not discriminate against Mr. McCray.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 760.10(1)(a) and (b), Florida Statutes, governs this dispute and provides as follows:

    
    

    1. It is an unlawful employment practice for an employer:

       
       

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

       2. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status. (Emphasis added).

    
    

18. The Petitioner, Mr. McCray, bears the burden of establishing a prima facie case of discrimination. McDonnell v. Green, 111 U.S. 792 (1973). Once the Petitioner has established a prima facie case by a preponderance of the evidence, the burden shifts to the Respondent, the City, to articulate some legitimate, nondiscriminatory reason for its action. Once the Respondent has articulated a reason for its action, the Petitioner must prove by preponderance of the evidence that the Respondent's articulated reason was not the true reason, but was a pretext for discrimination. See St. Mary's Honor Center v. Hicks, 113 S. Ct. 2747.

19. To establish a prima facie case of employment discrimination, Mr. McCray must show (1) that he is a protected individual under the act, (2) that he is otherwise qualified for the position sought or hired, (3) that he was excluded from the position sought solely by reason of his race and (4) that the program or activity receives federal financial assistance. Brand v. Florida Power Corp., 633 So. 2d 504 (Fla. 1st. DCA 1994). The fourth criterion is inapplicable to a claim brought pursuant to Florida's Human Rights Act. Id.

    
    

20. Based on the test enunciated in Brand, Mr. McCray has failed to establish a prima facie case of discrimination, and as such the petition for relief must be denied. Brand, 633 So. 2d 504, 510 (Fla. 1st DCA 1994).

    
    

21. The undersigned finds that McCray failed to prove by a preponderance of the evidence that the City of Milton intentionally discriminated against him. As such, the complaint against the City of Milton should be dismissed with prejudice.

    
    

22. Even if a prima facie case had arguably been made, the City has rebutted this proof by proving that Mr. McCray never had an appointment with Mr. Whitson, that Mr. McCray never attempted to meet with Mr. Whitson, that Mr. Whitson played no role in the employment of laborers, and that the City has made meaningful attempts to provide fair employment practices for minorities. In short, the City was able to expose Mr. McCray's claim as one without any basis in fact or law.

RECOMMENDATION

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

RECOMMENDED that the Commission enter a final order dismissing this claim with prejudice.

DONE and ENTERED this 22nd day of April, 1997, at Tallahassee, Florida.

WILLIAM A. BUZZETT

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 22nd day of April, 1997.

COPIES FURNISHED:

Bruce Committee, Esquire 8870 Thunderbird Drive

Pensacola, Florida 32514-5661

Roy V. Andrews, Esquire Post Office Box 586 Milton, Florida 32572

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

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana Baird, Esquire

Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

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: 96-004383

Orders for Case No: 96-004383