STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD R, )

)

Petitioner, )

)

vs. ) Case No. 99-2483

) SEMINOLE COMMUNITY COLLEGE, )

)

Respondent, )

)

FINAL ORDER

An administrative hearing was conducted on August 4, 1999, in Orlando, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Donald R, pro se

2105 Howell Branch Road, 1-A Maitland, Florida 32751

For Respondent: Gary Wheeler, Esquire

Seminole Community College

201 South Orange Avenue Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent discriminated against Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (the "Commission") on October 17, 1997. Within 180 days, the Commission did not make a determination regarding Petitioner's charge of discrimination.

On April 12, 1999, Petitioner withdrew his Charge of Discrimination and requested an administrative hearing. On

June 2, 1999, the Commission referred the matter to the Division of Administrative Hearings to conduct an administrative hearing ("DOAH").

On June 23, 1999, the parties filed their Joint Motion for Modified Summary Hearing. In their motion, the parties stated:

The Petitioner and Respondent hereby agree to a summary hearing and all of the provisions set forth in Section 120.574, Fla. Stat., except for one. Namely, the parties request that the summary hearing be conducted on one of the dates requested in the parties' Joint Response to Initial Order: July 26th through July 30, 1999, or August 2nd, 4th , or 5, 1999.

On June 28, 1999, the undersigned issued an Order Granting Summary Hearing. By Notice of Hearing issued on June 24, 1999, the matter was scheduled for hearing on August 4, 1999.

At the hearing, Petitioner testified, presented the testimony of four witnesses, and submitted 16 exhibits for admission in evidence. Respondent called one witness and submitted 21 exhibits for admission in evidence.

The identity of the witnesses and exhibits, and any attendant rulings, are set forth in the Transcript of the hearing

filed on August 30, 1999. Petitioner did not file a proposed final order ("PFO"). Respondent timely filed its PFO on September 9, 1999.

FINDINGS OF FACT

1. In the summer of 1997, Respondent advertised several employment positions. The advertised positions included a position for Corporate Training Representative and a position for Coordinator of Continuing Education. The advertisement informed potential applicants of the minimum qualifications; the knowledge, abilities, and skills associated with each position; and the application deadline for each position.

2. Petitioner was one of approximately 65 candidates who applied for the position of Corporate Training Representative. Petitioner was also one of 85 candidates who applied for the position of Coordinator of Continuing Education. Petitioner was over age 40 at the time he applied for both positions.

3. Petitioner's application, like the application of each candidate, included an application supplement. The application supplement identified the applicant's gender, ethnic origin, birth date, and included a statement of how the candidate learned of the open position. Respondent uses application supplements to collect data needed to respond to inquiries from the Commission, the U.S. Equal Employment Opportunity Commission, the Veterans Administration, and the U.S. Department of Labor.

4. Respondent directs completed applications to Respondent's Human Resources office. The Human Resources office

   separates the application supplement attached to each application, files the application supplement in a separate location, and forwards each application to the selection committee responsible for filling the position to which the application pertains. After, the position is filled, the Human Resources office re-attaches the application to the application supplement and retains the documents in data files maintained by the Human Resources office.

5. The selection committee, responsible for reviewing the applications submitted for the two positions sought by Petitioner, was comprised of four members. The selection committee reviewed each application, selected candidates for interview, and recommended those candidates the committee determined to be best suited for the position.

6. In selecting candidates for interview, the selection committee reviewed only the application of each candidate. The selection committee did not have access to any of the application supplements. The application supplements originally attached to the applications had been previously separated by the Human Resources office and retained in separate files in the Human Resources office. No one on the selection committee considered the age of an applicant, including Petitioner, when selecting a candidate for interview.

7. The selection committee did not select Petitioner for an interview. The selection committee selected for an interview only eight of the 65 applicants for the position of Corporate

   Training Representative and only eight of the 85 applicants for the position of Coordinator of Continuing Education.

8. Six of the eight applicants selected for interview for the position of Corporate Training Representative were over 40 years of age at the time they applied. Three of those applicants were aged 50 or older.

9. Four of the eight applicants selected for interview for the position of Coordinator of Continuing Education were aged 40 or older. The applicant ultimately hired was in her mid-forties at the time.

10. No employee or representative of Respondent made any derogatory comments about Petitioner's age. No member of the selection committee discussed the age of any applicant. Petitioner admits that had he been selected for an interview he might not have been selected as the successful candidate.

    CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. The parties received adequate notice of the administrative Hearing. Section 120.57(1).

12. Section 760.10(1), in relevant part, makes it an unlawful employment practice for Respondent to discriminate against Petitioner because of Petitioner's age. Chapter 760, entitled the Florida Human Relations Act (the "Act"), adopts the legal principles and judicial precedent set forth under Title VII

    of the Civil Rights Act of 1964, as amended, 42 U.S.C., Section 2000e et seq. (the "ADA").

13. The law affords no protection from discrimination unless Respondent engages in an adverse employment action. Morisky v. Broward County, 80 F.3d 445 (11th Cir. 1996); Bristow v. Daily Press, 770 F.2d 1251 (4th Cir. 1985). Respondent engaged in an adverse employment action when Respondent did not hire Petitioner for either of the positions for which Petitioner applied. The remaining issue is whether Respondent engaged in the adverse employment action because of Petitioner's age.

14. Petitioner submitted no direct evidence of age discrimination. In the absence of such evidence, Petitioner must provide sufficient inferential evidence of age discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas v. Green, 411 U.S. 792 (1973).

1. The initial burden of proof is on Petitioner. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner must satisfy its burden of proof by a preponderance of the evidence. Section 120.57(1)(g).

2. Petitioner must establish a prima facie case of discrimination. Rosenbaum v. Souhtern Manatee Fire and Rescue District, 980 F.Supp 1469 (M.D. Fla. 1997); Andrade v. Morse Operations, Inc., 946 F.Supp 979, 984 (M.D. 1996). Petitioner must show by a preponderance of evidence that: he is a member of

   a protected class; he suffered an adverse employment action; he received disparate treatment from other similarly situated individuals in a non-protected class; and that there is sufficient evidence of bias to infer a causal connection between his age and the disparate treatment. Id. Failure to establish the last prong of the conjunctive test is fatal to a claim of discrimination. Mayfield v. Patterson Pump Company, 101 F.3d 1371 (11th Cir. 1996); Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990).

3. Petitioner made a prima facie showing that he is a member of a protected class and that he suffered an adverse employment action. However, Petitioner failed to make a prima facie showing that he received dissimilar treatment from individuals in a non-protected class; that there was any bias against Petitioner; or that, even if evidence of bias did exist, it was sufficient to infer a causal connection between Petitioner's age and the alleged disparate treatment.

4. Petitioner failed to show any dissimilar treatment between himself and individuals in a non-protected class. Petitioner failed to show the age of the 149 applicants, other than Petitioner, for the two open positions involved in this proceeding. Rather, the evidence showed that 10 of the 16 applicants selected for interview were 40 years old or older.

5. If Petitioner had satisfied his burden of establishing a prima facie case of discrimination, an inference would have arisen that the adverse employment action was motivated by a

   discriminatory intent. Burdine, 450 U.S. at 254-255. The burden would have then shifted to Respondent to articulate a legitimate, non-discriminatory reason for its action. Id.

6. Even though Respondent was not required to do so, Respondent articulated a legitimate, non-discriminatory reason for its action. The selection committee did not select Petitioner for an interview based on evaluation criteria utilized by the selection committee to determine that Petitioner and approximately 123 other applicants were not the best qualified for an interview. The evaluation methodology used by the selection committee was applied uniformly to all applicants. The selection committee did not have access to information concerning the applicant's age. Ten of the 16 applicants selected for interview were aged 40 or older. One of the two interviewees hired by Respondent was over 40.

7. Once Respondent successfully articulates a non- discriminatory reason for its action, the burden shifts back to Petitioner to show that the proffered reason is a pretext for unlawful discrimination. Petitioner must provide sufficient evidence to allow a reasonable fact-finder to conclude that the proffered reason is not the actual motivation for the adverse employment action. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998).

8. Petitioner may show that Respondent's articulated reason is a pretext: by showing that the non-discriminatory reason should not be believed; or by showing that, in light of

   all the evidence, discriminatory reasons more likely motivated the decision than the proffered reason. Id. Petitioner did neither. Petitioner failed to present a scintilla of evidence showing that Respondent either should not be believed or that discriminatory reasons, rather than the proffered reason, more likely motivated the adverse employment action.

9. Respondent's request for attorney's fees pursuant to Section 57.105 is denied. Section 57.105 authorizes the award of attorney's fees by courts and does not extend to administrative hearings. The undersigned lacks jurisdiction under Section

57.105 to award attorney's fees. Compare, Section 57.111.

ORDER

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

ORDERED that Respondent did not discriminate against Petitioner, and Petitioner's Charge of Discrimination and Petition for Relief are denied.

DONE AND ORDERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 17th day of September, 1999.

COPIES FURNISHED:

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road - Building F Tallahassee, Florida 32303-4149

Donald R, pro se

2105 Howell Branch Road, 1-A Maitland, Florida 32751

Gary Wheeler, Esquire Wayne L. Helsby, Esquire

Allen, Norton and Blue, P.A.

Counsel for Seminole Community College

201 South Orange Avenue Orlando, Florida 32801

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 99-002483

Orders for Case No: 99-002483