STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD A. GARREPY, )

)

Petitioner, )

)

vs. ) Case Nos. 98-3611

) 98-5090

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal administrative hearing was conducted before Daniel

1. Kilbride, Administrative Law Judge, Division of Administrative Hearings (DOAH) on March 7-9, 2000, in Orlando, Florida, and on March 10, 2000, in Tallahassee, Florida.

   APPEARANCES

   
   

   For Petitioner: Donald A. Garrepy, pro se

   Post Office Box 276

   Portsmouth, New Hampshire 03802

   
   

   For Respondent: Marshall G. Wiseheart, Esquire

   Department of Environmental Protection 3900 Commonwealth Boulevard

   Mail Station 35

   Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES

   With regard to DOAH Case No. 98-5090 (FCHR Case No. 95- 5752), the issue is:

   Whether Respondent violated the Florida Civil Rights Act of 1992, by failing to select Petitioner for the position of environmental manager in the Fall of 1994 because of his age or gender.

   With regard to DOAH Case No. 98-3611 (FCHR Case No. 96- 1298), the issue is:

   Whether the Respondent violated the Florida Civil Rights Act of 1992 by retaliating against Petitioner by terminating him from his position because the Petitioner had filed a charge of discrimination with the Florida Commission on Human Relations (FCHR).

   
   

   PRELIMINARY STATEMENT

   
   

   As to DOAH Case No. 98-5090 Discrimination:

   
   

   Petitioner, Donald A. Garrepy, filed a charge of discrimination with FCHR on March 19, 1995, alleging that the Department of Environmental Protection (Respondent) had violated Chapter 760, Florida Statutes, by failing to hire him for the position of environmental manager in Respondent's central district. On December 22, 1998, three and one-half years later, FCHR, having failed to issue a Determination, Petitioner filed his Petition for Relief and the case was referred to DOAH on November 17, 1998.

   By Recommended Order of Dismissal entered April 9, 1999, the Administrative Law Judge recommended that a final order be entered dismissing the Petition in Case No. 98-5090 as untimely filed. On August 20, 1999, FCHR ordered remand of the case to the DOAH.

   As to DOAH Case No. 98-3611 Retaliation:

   
   

   Petitioner filed a Charge of Discrimination with the FCHR on January 29, 1996, alleging the Respondent had violated Chapter 760, Florida Statutes, by retaliating against him for having

   complained about his nonselection in 1994. On April 29, 1998, the FCHR issued its Determination: No Cause. Thereafter, Petitioner filed his Petition for Relief on May 31, 1998. The case was then referred to DOAH on August 4, 1998, with a request that an Administrative Law Judge conduct a formal hearing. This case was consolidated with DOAH Case No. 98-5090 for purposes of hearing.

   Following discovery, the hearing was convened in Orlando, during which Petitioner testified in his own behalf and called 11 witnesses and offered 34 exhibits in evidence. Respondent called two witnesses and offered one exhibit in evidence. The site of the hearing was then moved to Tallahassee where Petitioner called these witnesses and offered three exhibits, one of which was admitted in evidence. Respondent called one witness.

   Each of the parties timely filed proposed findings of fact and conclusions of law. Each of the proposals have been given careful consideration in the preparation of this Recommended Order.

   Based on the evidence, the following findings of fact are determined.

   FINDINGS OF FACT

   
   

   DOAH Case No. 98-5090 Discrimination

   
   

   1. Petitioner began his employment with Respondent in the Southwest District in Tampa on October 1, 1991, as an Engineer

      III with the air pollution program. He transferred to the Central District in Orlando, Florida, on June 3, 1994.

   2. Petitioner is an "employee" and Respondent is an "employer" under the statute.

   3. On or about September 26, 1994, Petitioner applied for the position of environmental manager in the Orlando Central District. At the time of his application, he had been with Respondent for almost two years but in the Orlando office for less than four months.

   4. Petitioner met the minimum qualifications for the position and is a male over 40 years of age.

   5. In September 1994, Alex Alexander was the director of the Central District and the hiring supervisor for the position of environmental manager.

   6. Alex Alexander conducted the interviews, decided who would be interviewed, and made the final decision regarding selection.

   7. He was assisted in the selection process by James Bradner, who had formerly occupied the environmental manager position. Bradner was an Engineer IV. The previous engineering position was reclassified to environmental manager, prior to advertising it, to eliminate the engineering functions.

   8. Alexander was seeking someone who could act as assistant to the director in environmental matters and to represent him on various matters before public and governmental bodies.

   9. Alexander determined that it was essential that the candidate have experience in a wide variety of Respondent's regulated programs, as well as with public presentations in dealing with Florida legislators and local government officials, and negotiating and managing Respondent's contracts.

   10. In 1994, Alexander was 69 years of age. From the evidence, it appears Alexander had no predisposition as to the age or gender of the selected candidate. He would have preferred a mature candidate if he could have found one who met all of the other requirements.

   11. There were 13 applicants for the position of environmental manager of whom nine, including Petitioner, met the minimum qualifications for the position.

   12. Four applicants were selected by Alexander to be interviewed, including three females and one male, all under 40 years of age. None of the three male applicants over the age of 40, who met the minimum qualifications for the position, were interviewed.

   13. In September 1994, T. Patrick Price was the operations manager for the Central District and his duties included serving as personnel liaison between the Central District and the Bureau of Personnel Services in Tallahassee. As a practical matter, Price's assistant, Minnie Yates, performed most of the clerical functions associated with personnel matters including recruitment and the preparation of recruitment and hiring packages.

   14. Price and the selectee, Ruth McLemore, had a "live-in, domestic relationship." They subsequently wed and were married at the time of hearing.

   15. Petitioner failed to show that Price was in a position to influence the selection of McLemore, either directly or indirectly.

   16. Price removed himself in the early stages from the selection process, when he learned that McLemore had applied for the environmental manager position.

   17. Furthermore, had Price not removed himself from the selection process, his role would have been limited to reviewing the applications to determine which applicants possessed the minimum qualifications for the position, and later ensuring that the selected applicant was among the most qualified applicants.

   18. The greater weight of evidence did not support the assertion that Price was in a position to influence directly or indirectly, the outcome of the selection process or which candidates were selected for interview.

   19. In September 1994, Petitioner had over 20 years of experience as an engineer at the United States Naval Shipyard in Portsmouth, New Hampshire. However, his experience with programs regulated by Respondent was limited to one year with an Orlando company involving domestic waste, approximately 20 months with the air program in Tampa, and less than four months with the industrial wastewater program in Orlando.

   20. Petitioner testified that he had dealt with legislators and their aides in New Hampshire and Maine but offered no proof of experience with the Florida Legislature. Petitioner testified that he did not have experience with or knowledge of Respondent's contracting procedures. While Petitioner testified that he had experience in making public presentations in New Hampshire, and in writing reports in the Southwest District, he failed to attach any writing samples or examples of relevant public presentations to his application.

   21. The selected applicant, Ruth McLemore-Price, f/k/a Ruth McLemore, is a white female under 40 years of age. In September 1994, she was an Environmental Specialist III in the Storage Tank program of the Division of Waste Management in the Central District of Respondent. From 1987 to 1988, McLemore was a Biological Scientist I in the Environmental Health Section of the Department of Health and Rehabilitative Services. She was hired by Respondent in 1988 as an Environmental Specialist I in the Domestic Wastewater Section.

   22. At the time of her application, she had over seven years of professional experience with environmental programs in Florida, including but not limited to: domestic wastewater, industrial wastewater, drinking water, storage tanks, hazardous waste, and solid waste. Additionally, her application includes examples of her numerous public presentations and writing samples.

   23. She had extensive contract experience including contracting with local governmental programs.

   24. Whereas Petitioner had more years of professional experience, McLemore's experience was more relevant to the position of environmental manager and better met the required knowledge skills and abilities required of the position.

   25. Petitioner was unable to produce any proof of his assertion that the group of applicants interviewed must be in statistical parity with protected groups within the District or within Respondent. Rather, the evidence showed that there is no such requirement.

   26. Likewise, there was no evidence that merely meeting the minimum qualifications of a position requires that the candidate be interviewed, and the evidence demonstrated this not to be the case.

   27. Petitioner failed to prove that Respondent classified applicants in such a way so as to discriminate against him due to his age and gender.

   28. The evidence showed that the classification of applicants by age, gender, and race was created after the selection process was completed in order to comply with Respondent's requirements, the Age Discrimination Act, and the Civil Rights Act.

   29. Further, there was no credible evidence that Respondent's actions were a pretext for discrimination, that the

       employment decision was grounded in discriminatory animus, or that a discriminatory reason motivated Respondent in its actions. DOAH Case No. 98-3611

   30. In March 1995, following Alexander's retirement, Vivian Garfein became director of the Central District. Within a few days of her arrival, Petitioner approached her and lodged a complaint regarding his non-selection for the environmental manager position.

   31. Garfein looked into the matter, and subsequently, advised Petitioner that she found no irregularities in the selection process. Petitioner advised her that he was aware that he had formal remedies and on May 19, 1995, he filed his initial complaint with FCHR.

   32. Petitioner alleges that, within hours of complaining to Garfein, a course of retaliation commenced, perpetrated by his immediate supervisor Ali Kazi, which continued until, and was the cause of his resignation in December 1995. These acts included:

       1. In April 1995, Kazi returned Petitioner's April timesheet with instructions to complete and sign it before submitting it to his supervisor. Petitioner alleges that this was harassment because it was intended as a preliminary submittal and, therefore, was obviously incomplete.

       2. In November 1995, Petitioner alleges that Kazi conducted his performance evaluation and completed it

          within two minutes. The evaluation encouraged him to attempt to reduce his leave without pay. Petitioner asserted that all of his leave without pay was unavoidable and necessary; and, since he was the hardest worker in the District and kept his work up-to- date, Kazi had no basis for making such a recommendation.

       3. Petitioner further alleged that Kazi harassed and retaliated against him by forwarding an e-mail critical of Petitioner which Kazi had received from a supervisor in another program.

       4. The remaining incidents of alleged retaliation involve Kazi's refusal to allow Petitioner to make up leave days or requiring him to adjust his timesheet so as not to qualify for vacation pay in August and November 1995.

   33. The testimony showed, however, that the timesheet was submitted on the last day of the employee's work month, and it was entirely reasonable for his supervisor to assume that it was his final submittal.

   34. It was undisputed that Petitioner took substantial leave without pay (approximately 10 weeks between June 1 and November 7, 1995). This was reasonably perceived by Respondent to be excessive. Petitioner offered no evidence that a longer performance evaluation was in any way required.

   35. There was no evidence that Petitioner was ever counseled or otherwise disciplined as a result of the e-mail. Therefore, merely forwarding it could not be deemed as harassment or retaliation.

   36. The evidence showed Petitioner had accumulated excessive leave without pay. It was Respondent's policy to discourage excessive leave without pay. It was also undisputed that Kazi had the discretion to perform the acts alleged to be harassment. While it is true that Kazi's actions caused Petitioner to lose pay, the acts are permitted and justified by legitimate business reasons.

   37. Additionally, there was no credible evidence that Garfein or any other supervisor had instructed him to treat Petitioner any differently than any other employee.

       CONCLUSIONS OF LAW In DOAH Case Nos. 98-5090 and 98-3611

   38. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57, Florida Statutes (1999).

   39. The FCHR has the authority to investigate a Charge of Discrimination which alleges that Respondent, an employer, had committed an unlawful employment practice by its failure to promote Petitioner based on his sex and/or age. Sections 760.10(1) and 760.11, Florida Statutes.

   40. When a complaint has been filed with the FCHR, it has the duty to investigate the allegations in the complaint and make a determination within 180 days of the filing of the Complaint, if there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992. After a determination is made, the FCHR is charged with the duty to notify the aggrieved person and Respondent of the determination, the date of such determination, and the options available under the law. Section 760.11(3), Florida Statutes.

   41. In Case No. 98-5090, the FCHR failed to make a reasonable cause determination; and three and one-half years after filing his Complaint, Petitioner requested a formal administrative hearing under Sections 120.569 and 120.57(1), Florida Statutes.

   42. In Case No. 98-3611, FCHR issued a Determination: No Cause on April 29, 1998, two years and three months after the Charge was filed, and Petitioner filed "a Petition for Relief on May 31, 1998."

   43. Therefore, Section 760.11(8), (4) and (6), Florida Statutes, applied to this case. These sections read, in pertinent part:

       1. In the event that the commission determines that there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992, the aggrieved person may either:

          1. Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or

          2. Request an administrative hearing under ss. 120.569 and 120.57.

       
       

       The election by the aggrieved person of filing a civil action or requesting an administrative hearing under this subsection is the exclusive procedure available to the aggrieved person pursuant to this act.

       
       

       * * *

       
       

       (6) Any administrative hearing brought pursuant to paragraph (4)(b) shall be conducted under ss. 120.569 and 120.57. . . An administrative hearing pursuant to paragraph (4)(b) must be requested no later than 35 days after the date of determination of reasonable cause by the commission.

       
       

       (8) In the event that the commission fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the commission determined that there was reasonable cause.

       
       

   44. Although it appears unjust that Petitioner's case should be dismissed because of the failure of a state agency to complete its statutory duty to make a reasonable cause determination in a timely manner, nevertheless, the court in Milano v. Moldmaster, Inc., 703 So. 2d 1093 at 1094 (Fla. 4th DCA 1997), held that the time limitation on requesting a hearing in the selected forum begins to run at the expiration of the 180-day period in which the FCHR was to make a reasonable cause of determination. Therefore, the Petition for Relief is untimely in both cases because they are filed nearly three years after the

       presumed date of determination by the Commission. Milano vs. Moldmaster, supra; Joshua vs. City of Gainesville, 734 So. 2d 1068 (Fla. 1st DCA 1999); Adams vs. Wellington Regional Medical Center, Inc., 727 So. 2d 1139 (Fla. 4th DCA 1999). This procedure has been determined to be constitutional under Florida law. McElhath vs. Burley, 708 So. 2d 836 (Fla. 1st DCA 1998).

   45. The record does establish some evidence of excusable neglect, which might, under certain circumstances, excuse delinquent filing. See, for example, Machules vs. Department of Administration, 523 So. 2d 1132 (Fla. 1988). In Machules, the Florida Supreme Court described the parameters of the "equitable tolling" doctrine as follows:

       Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.

       523 So. 2d at 1134.

       
       

   46. Petitioner asserts that the staff of the FCHR lulled him into inaction. The assertion appears to be true and is accepted as true for purposes of this Recommended Order. However, Petitioner is claiming he was lulled into inaction for two additional years after he was advised of his options under the statute. The District Court of Appeal has held that a Petitioner may not enjoy a manipulable open-ended time extension

       which could render the statutory limitation meaningless. It held that a Petitioner should be required to assume some minimum

       responsibility himself for an orderly and expeditious resolution of his dispute. Milano vs. Moldmaster, Inc., supra, at 1095, cf. Lewis vs. Conners Steel Company, 673 F.2d 1240, 1242 (11th Cir.

       1982) (barring Title VII lawsuit outside the 90-day period). Although this result is harsh, two other district courts have followed this precedent and it is, therefore, binding on this tribunal. Joshua vs. City of Gainesville, supra; and Adams vs. Wellington Regional Medical Center, Inc., supra. For a thorough analysis of these issues, see Hernandez vs. Transpo Electronics, Inc., DOAH Case No. 99-3576 (Recommended Order dated June 6, 2000, Daniel M. Manry, Administrative Law Judge).

       As to DOAH Case No. 98-5090

       
       

   47. In addition, in his Petition for Relief, Petitioner alleged that Respondent failed or refused to promote him because of his age or gender. In filling the position of environmental manager, Respondent classified applicants in such a way as to deprive Petitioner of an employment opportunity because of his age or gender.

   48. If these charges are true, they would constitute a violation of Section 760.10(1)(a) and (b), Florida Statutes (1995), which provides in relevant part as follows:

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

          
          

          1. . . . to fail or refuse to hire any individual, . . . because of such individual's . . . sex, (or) age . . .

          2. To . . . classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, . . . because of such individual's . . . sex, (or)

       age . . . .

       
       

   49. In order to make out a prima facie case of race, gender, or age discrimination under Section 760.10(1)(a), Florida Statutes (1995), Petitioner must show that he is a member of a protected class; that he was fully qualified for the job for which he applied, and that another person outside the protected class, or of a different age, with equal or lesser qualifications was hired. See, for example, Davenport vs. Village on the Green,

       21 F.A.L.R. 2351, 2355 (FCHR 1999) (race and gender); Jones vs. School Board of Volusia County, 21 F.A.L.R. 2366, 2367 (FCHR 1999) (age).

   50. In making out a prima facie case, Petitioner need only show that he was minimally qualified for the position, and not that he was fully qualified. Potasek vs. The Florida State University, 18 F.A.L.R. 1952, 1953 (FCHR 1995).

   51. Here, Petitioner has met his burden of proving a prima facie case of age and gender discrimination because the record shows that Petitioner was a member of a protected class; he met the minimum qualifications for the position; he was subject to an adverse employment decision; and a person outside the protected class, or a different age, was chosen for the position.

   52. However, in his Petition for Relief, Petitioner alleges that Respondent violated the Florida Civil Rights Act of 1992 by

       failing to consider him and other qualified applicants for the position because the "selectee had a live-in, domestic relationship with a high level manager who was in a position to influence, directly and indirectly, the outcome of the selection process"; and further that this relationship between the selectee and T. Patrick Price "was the primary determining factor in the selection for the position "

   53. Assuming arguendo that Petitioner successfully proved, as alleged, that the relationship between Price and McLemore was the primary determining factor in McLemore's selection, he still did not prove discrimination. In DeCintio vs. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), and the line of cases following DeCintio, the courts held that favoring a "paramour" does not constitute a violation of Title VII. The cases since DeCintio hold that favoritism toward a paramour may be unfair, but it does not discriminate, since both men and women are disadvantaged for reasons other than their ages and genders. Womack vs. Runyon, 147 F.3d 1298 (11th Cir. 1998); Candelore vs. Clark County Sanitation District, 975 F.2d 588 (9th Cir. 1992).

   54. In addition, Respondent has articulated legitimate, nondiscriminatory reasons for its employment decisions. Respondent demonstrated that Petitioner did not meet all selection criteria and knowledge, skills, and abilities for the position. A person with better qualifications for this position was chosen.

   55. There was no evidence that these actions were a pretext for discrimination or that Respondent was motivated by a discriminatory reason when it rejected Petitioner and selected the more qualified individual.

       As to DOAH Case No. 98-3611

       
       

   56. In his Petition for Relief, Petitioner alleged that following lodging a complaint with the district director asserting discrimination on April 13, 1995, Respondent's staff commenced a campaign of retaliation, which continued until his resignation on December 15, 1995.

   57. If this charge is proven, it would constitute a violation of Section 760.10(7), Florida Statutes, which provides in relevant part:

       (7) It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, . . . .

       
       

   58. As set forth hereinabove, at paragraph 51, Petitioner has established a prima facie case of age and gender discrimination. Additionally, to prove retaliation, Petitioner must also show that acts alleged to be retaliatory actually occurred; that those acts were prohibited acts; that they were perpetrated upon him because of his age and gender; and that the acts of alleged retaliation were a result of complaining to the district director and then filing his Petition with FCHR.

   59. Petitioner has failed to meet his burden. Respondent has demonstrated legitimate nondiscriminatory reasons for the acts alleged to be retaliatory.

   60. Additionally, Petitioner has failed to show any nexus between these acts and his complaint or Petition.

RECOMMENDATION

Based upon the foregoing facts and conclusions of law, it is hereby

RECOMMENDED as follows:

1. A final order be entered by FCHR dismissing with prejudice the petition of Donald A. Garrepy in DOAH Case No. 98- 5090 (FCHR Case No. 95-5752).

2. A final order be entered by FCHR dismissing with prejudice the petition of Donald A. Garrepy in DOAH Case No. 98- 3611 (FCHR Case No. 96-1298).

DONE AND ENTERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2000.

COPIES FURNISHED:

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Florida Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Donald A. Garrepy Post Office Box 276

Portsmouth, New Hampshire 03802

Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

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: 98-005090

Orders for Case No: 98-005090