STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUSBON BROWN, JR., )

)

Petitioner, )

)

vs. ) Case No. 99-4037

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 20, 2000, in Daytona Beach, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ausbon Brown, Jr., pro se

Post Office Box 10946

Daytona Beach, Florida 32120-0946

For Respondent: Marshall G. Wiseheart, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.

PRELIMINARY STATEMENT

This matter began on September 2, 1997, when Petitioner, Ausbon Brown, Jr., filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that Respondent, Department of Environmental Protection, had violated Chapter 760, Florida Statutes, by "classifying positions and varying the conditions of employment" for various positions he had applied for with that agency. On August 18, 1999, or almost two years later, the Florida Commission on Human Relations issued its Determination: No Cause. Thereafter, Petitioner filed his Petition for Relief in September 1999. The case was then referred to the Division of Administrative Hearings on

September 27, 1999, with a request that an Administrative Law Judge conduct a formal hearing.

By Notice of Hearing dated October 12, 1999, a final hearing was scheduled on December 30, 1999, in Daytona Beach, Florida.

On the undersigned's own motion, the case was rescheduled to January 20, 2000, at the same location. Petitioner's opposed request for a continuance of the hearing filed on January 18, 2000, was denied.

In a preliminary ruling entered on January 7, 2000, the undersigned granted Respondent's Motion to Strike all allegations which pertained to discriminatory acts occurring more than

365 days before the Charge of Discrimination was filed. This ruling struck allegations pertaining to four positions. In

addition, claims for monetary damages were also stricken. Finally, at the final hearing, an allegation pertaining to a position subsequently transferred by the Legislature in 1999 to the Florida Fish and Wildlife Conservation Commission was dismissed from this case and transferred to Case No. 99-4331, which involves another charge of discrimination by Petitioner against that agency.

At the final hearing, Petitioner testified on his own behalf. Also, he offered Petitioner’s Exhibits 1-6, which were received in evidence. Respondent presented the testimony of Robert Eshleman, senior personnel manager; Patsy G. Bedsole, personnel services specialist; and Valerie K. Huegel, a senior management analyst II. Also, it offered Respondent's Exhibits 1- 15, which were received in evidence.

A Transcript of the hearing was filed on February 11, 2000.

By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to March 17, 2000. The same were timely filed by the parties, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this case, Petitioner, Ausbon Brown, Jr. (Petitioner), an African-American male born on April 25, 1943,

   contends that Respondent, Department of Environmental Protection (Department), unlawfully refused to hire him for any one of four positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends that Petitioner did not meet all of the qualifications for the positions, and that it hired the most qualified employee in each instance.

   After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took almost two years to complete, the Commission issued a Determination: No Cause on August 18, 1999.

2. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least 15 employees for each working day in each of 20 or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law.

3. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University.

4. From June 1965 until April 1994, Petitioner worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service, including as a "survey statistician," "operations research analyst," "chief turtle headstart," "fishery biologist," "fishery technician, and "equal employment

   opportunity counselor." Petitioner then presumably retired from federal service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). His current employment is not of record. After leaving federal service, Petitioner says he filed around 120 job applications with various state agencies, including the Department.

5. When a position becomes vacant and is ready to be filled, all state agencies provide a short summary of information regarding that position to the Department of Management Services (DMS) so that potential job applicants are aware of the vacancy. The information provided by the agencies constitutes "the bare essentials" about a job and includes a brief description of the job duties, the minimum qualifications necessary for the position, and an agency contact person. That information is then placed by DMS into a computer program (COPES), which generates a document known as a vacancy announcement.

6. The vacancy announcements can be accessed by other state agencies who have a COPES terminal. While employed by the DOR, which apparently had such access, Petitioner relied upon the vacancy announcements generated by COPES for filing various applications with the Department.

7. During the relevant time period, and even continuing until today, whenever a vacant position occurs, the Department prepares a Job Opportunity Announcement (JOA) which lists, among

   other things, the position's minimum qualifications; class title; description of job duties; required entry-level knowledge, skills, and abilities; a contact person in the Department who can provide further information; and the deadline for submitting an application. It is fair to say that this document contains far more information regarding the position than the vacancy announcement generated by DMS.

8. The Department also prepares a Selection Criteria Form for each vacancy which enumerates a number of essential and preferred selection criteria which the applicant must satisfy in order to be considered for employment. In addition, the form contains the name, address, and telephone number of a Department employee who can be contacted for further information on the position. Like the JOAs, this document is available to an applicant upon request, and the Department's general practice is to fax or mail this form to the applicant within 24 hours after a request is made.

9. Although each job application form advises the applicant to "[l]ist the knowledge, skills, and abilities that you will bring to the job," and to refer to the JOA or listed contact person to determine those specific requirements, Petitioner did not have the JOA or the Selection Criteria Form when he prepared and filed his applications, nor did he speak with the contact person.

10. After a position has been filled, the Department prepares a Recruitment Report, which identifies demographic information regarding all persons who filed an application, the name of the successful candidate, and the hiring person's justification for choosing that individual.

11. During the initial screening of all applications, a Department personnel specialist reviews the applications to determine if an applicant meets all essential and preferred selection criteria listed on the Selection Criteria Form. If an applicant fails to meet any of these criteria, the applicant is automatically cut from the list. The applicant is also cut from the list if the application is filed after the deadline or is incomplete.

12. In determining whether an applicant meets all selection criteria, the personnel specialist will attempt to "glean" from the applicant's work history whether he or she satisfies a particular criterion. If the subject matter is highly technical, the specialist will seek technical advice from other Department personnel to make that determination. It goes without saying that the applicant who has the JOA and the Selection Criteria Form can better tailor his or her work experience on the application to the specifics of the job being sought.

13. For those applicants who do not meet all selection criteria, who have filed their application after the filing deadline, or who have filed an incomplete application, the

    Department sends out a standard form letter advising them that they have not been selected for the position. Petitioner received such a letter after each application was filed. There is no requirement that the rejection letter contain a detailed explanation of the reasons why a specific candidate was not selected.

14. Although Petitioner applied for a number of positions with the Department since 1994, only four applications are in issue here. They are positions 11390; 20340; 10084; and 10301. The first three positions were classified as an Environmental Specialist II, while the last position was classified as an Environmental Specialist III. Positions 20340 and 10301 were processed by the Department's Tallahassee office while positions 11390 and 10084 were processed by the Department's Pensacola office. Petitioner submitted virtually identical applications for each of these positions.

15. As to position 10301, an Environmental Specialist III,

    
    

    76 applicants applied for the job, and 10 were ultimately given an interview. Although Petitioner met the minimum qualifications listed in the vacancy announcement, he was "cut" from the list during the initial screening process because the position was a "groundwater position," and he had "little experience in water supply plans and development and large scale water management projects." Thus, he could not meet all essential and preferred criteria.

16. On the other hand, the successful applicant, a white male (age unknown), met all essential and preferred criteria; he also had 16 years experience in water management with specific experience "on such issues as water supply planning, establishing minimum flows and levels, establishing pollutant load reduction goals and total maximum daily loads, and watershed management." The evidence shows that a better qualified person was hired for this position, and Petitioner did not meet all essential or preferred criteria.

17. Position 20340, an Environmental Specialist II, required that the successful applicant have knowledge of the Everglades ecosystem. Ninety-eight persons applied for the job, and only six were invited for an interview. Petitioner met all minimum qualifications, but like many other candidates, he failed to meet all of the essential qualifications. In addition, "[o]ther applicants provided information indicating better qualifications with regard to essential and preferred selection criteria." The successful applicant, a Department employee, was a white male (age unknown) who "[f]ully [met] all essential selection criteria" and "nearly fully [met] all preferred selection criteria." Further, the successful applicant had "much relevant experience with monitoring, sample analysis and data interpretation relevant to/taken from the Everglades." In this instance, the most qualified person was hired, and Petitioner

    again failed to meet all essential qualifications for the position.

18. As to position 10084, an Environmental Specialist II,

    
    

    50 persons submitted complete and timely applications, but only

    
    

    14 were interviewed. In addition, 20 other applications were filed by persons who were either unqualified or filed their applications after the deadline; they were automatically cut from any further review. Because Petitioner's application was filed after the December 23, 1996, deadline, his application was not considered. Therefore, on this basis alone, Petitioner's claim must necessarily fail.

19. As it turned out, a white male (age unknown) who met all essential and preferred selection criteria was selected for the position; that individual was found to exceed the education, experience, and knowledge requirements of the job. The evidence shows that the most qualified person was selected for the job.

20. Finally, as to position 11390, also an Environmental Specialist II, 42 persons applied for the position, but only 8 were given an interview. Petitioner submitted no information on his application which indicated that he had knowledge of the Department's Pollution Control Program, or that he was versed in ecosystem management, both essential selection criteria for the job. Ultimately, the successful candidate was a white female (under age 40), who had "hands on" experience in ecosystem management and grant writing and displayed outstanding public

    speaking skills. She also led the State "in the indicator studies." While Petitioner argues that based on his education and work experience, he "matches the criteria better than the selected applicant," the more persuasive evidence supports a finding that the position was filled by the best qualified person and that Petitioner did not meet all preferred and essential selection criteria for the position.

21. Notwithstanding the foregoing, Petitioner contended that without the Selection Criteria Form, there was no way he could accurately tailor his work experience to the specific criteria required for the job. However, the form was readily available to any applicant by simply calling the number given on the vacancy announcement and requesting that it be faxed or mailed the same day.

22. Petitioner also contended that he had no time to request a JOA or Selection Criteria Form since applications generally were due within a matter of days. This time constraint, however, uniformly applied to all candidates. Further, the evidence shows that if an applicant telephoned the Department contact person before the deadline had run and advised that he wished to file an application but could not file it before the deadline, a short extension would normally be granted.

23. Petitioner next contended that in several instances the Department violated a DMS rule by using a vacancy to promote an existing employee. As to this contention, Petitioner

    misconstrued the manner in which the rule is applied, and the evidence shows that the Department fully complied with all DMS personnel rules when it filled the questioned positions.

24. Petitioner further contended that the investigation conducted by the Florida Commission on Human Relations (Commission) was flawed, and that the reason given by the Commission investigator for recommending a determination of no cause was not true. He also criticized the length of time it took to complete the investigation, saying this deprived him of an opportunity to seek redress in state courts. Since Petitioner was given a de novo hearing to challenge the Commission's preliminary determination, the investigator's conclusions are irrelevant. At the same time, the Department should not be faulted for the Commission's delay in processing the complaint.

25. Finally, Petitioner contended that his educational background surpassed that of the successful applicants, and that his rejection is a clear indication of discrimination on the part of the Department. The positions in question, however, are highly technical in nature; besides the educational requirements, a candidate must also satisfy essential and preferred selection criteria that fit the duties of the job. In most cases, these can only be met through direct work experience in the specified areas, which the evidence shows that Petitioner lacked. On the other hand, all of the successful applicants satisfied these essential and preferred selection criteria.

26. There was no credible evidence that the Department "chang[ed] classifications and var[ied] conditions of employment" in an effort to deny Petitioner employment, or that the Department's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decisions were grounded on discriminatory animus in any respect, or that a discriminatory reason motivated the Department in its actions.

    CONCLUSIONS OF LAW

    
    

27. 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).

28. In his Petition for Relief, Petitioner has alleged that through "changing classifications and varying conditions of employment," the Department was able to deny him employment on account of his race, gender, and age. If this charge is true, it would arguably constitute a violation of Section 760.10(1)(a), Florida Statutes (1995), which provides in relevant part as follows:

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

       
       

       (a) To . . . refuse to hire any individual .

       . . because of such individual's race . . . sex, [or] age."

       
       

29. 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, e.g., Davenport v. Village on the Green, 21

    F.A.L.R. 2351, 2355 (FCHR, 1999)(race and gender); Jones v. School Bd. of Volusia County, 21 F.A.L.R. 2366, 2367 (FCHR, 1999)(age). 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 v. The Fla. State University, 18 F.A.L.R. 1952, 1953 (FCHR, 1995).

30. Because Petitioner did not timely file an application for one position (10084), the allegations pertaining to that claim need not be considered. Also, except for one position (11390) which was filled by a person less than 40 years old, the exact age of the successful applicants is not known, and there is no other evidence from which to infer their approximate age. Thus, the allegation that age discrimination played a role in Petitioner's rejection for positions 10301 and 20340 must fail. Finally, two positions (10301 and 20340) were filled by a person within the protected class (male), and therefore the gender claim will not lie.

31. Here, Petitioner has arguably met his burden of proving a prima facie case of race discrimination as to positions 10301, 20340, and 11390, gender discrimination as to position 11390, and age discrimination as to position 11390. This is because the

    record shows that Petitioner was a member of a protected class; he met the minimum qualifications for the positions; he was subject to an adverse employment decision; and a person outside the protected class, or a different age, was chosen for the positions.

32. In response to the foregoing showing, Respondent has articulated a legitimate, nondiscriminatory reason for its employment decisions. That is to say, Petitioner did not meet all essential and preferred selection criteria for the positions, and in each instance a person with better qualifications was chosen. There was no evidence that these actions were a pretext for discrimination or that the Department was motivated by a discriminatory reason when it rejected Petitioner and selected the more qualified individual.

33. While Petitioner's claims are obviously sincere and well-intentioned, the fact "that the result seems unfair to [him] is not enough, if the employer's decision is based on a legitimate business reason, because unfairness alone is not a violation of section 760.10." Fla. Dep't of Community Affairs v. Bryant, 586 So. 2d 1205, 1211 (Fla. 1st DCA 1991). This being so, his Charge of Discrimination must necessarily fail.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief.

DONE AND ENTERED this 29th day of March, 2000, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(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 29th day of March, 2000.

COPIES FURNISHED:

Ausbon Brown, Jr. Post Office Box 10946

Daytona Beach, Florida 32120-0946

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

Mail Station 35

Tallahassee, Florida 32399-3000

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations 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 to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the agency that will render a final order.

Docket for Case No: 99-004037

Orders for Case No: 99-004037