STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUSBON BROWN, JR., )

)

Petitioner, )

)

vs. ) Case No. 99-4038

) FLORIDA DEPARTMENT OF LABOR ) AND EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 11, 2000, in Daytona Beach, Florida, by teleconferencing technology before Don W. Davis, 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: Sonja P. Mathews, Esquire

Department of Labor and Employment Security Hartman Building, Suite 307

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2199

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 December 5, 1997, when Petitioner, Ausbon Brown, Jr., filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that Respondent, Florida Department of Labor and Employment Security, 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 over 20 months 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 with a request that an Administrative Law Judge conduct a formal hearing.

At the final hearing, Petitioner testified in his own behalf and offered one composite exhibit in evidence. Respondent presented four witnesses and sixteen exhibits. Official recognition was taken of Rule 60K-3.009 and Rule 60k-3.0092, Florida Administrative Code.

No transcript of the final hearing was provided. Proposed Findings of Fact and Conclusions of Law were filed by Respondent and considered in the formulation of this Recommended Order.

Although Petitioner filed a notice alleging that he had mailed a proposed order to the undersigned "under separate cover," no such

proposed order had been received at the time of preparation of this Recommended Order.

FINDINGS OF FACT

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

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

2. Petitioner filed a charge of discrimination with the Florida Commission on Human Relations (FCHR) on December 5, 1997, alleging violation by the Florida Department of Labor and Employment Security (Respondent) of the Florida Civil Rights Act of 1992, as contained in chapter 760, part I, Florida Statutes.

3. On August 18 1999, over 20 months later, FCHR issued a "Notice of Determination: No Cause."

4. September 27, 1999, Petitioner filed a Petition for Relief, alleging that Respondent had subjected Petitioner to discriminatory hiring practices on the basis of the race and age of Petitioner.

5. While not identifying specific positions, the Petition for Relief contains the allegation that Petitioner applied for

   244 positions within the hiring jurisdiction of Respondent. By order dated January 18, 2000, Administrative Law Judge Donald R. Alexander limited the final hearing to allegations pertaining to Petitioner's application for position number 02925, Research Associate, within Respondent's Division of Workers' Compensation.

6. Respondent denies Petitioner's allegation of discriminatory hiring practice and contends that it hired the most qualified employee.

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

8. 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.

9. Petitioner's job applications reflect that from

   
   

   June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries 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).

10. Petitioner is currently the supervisor of science laboratories for Daytona Beach Junior College.

11. Respondent, in the fashion of most state agencies, periodically issues a "Job Opportunity Announcement" which describes career service positions currently available in the

    agency. Such an announcement was issued on January 15, 1997, for position number 002925 and read as follows:

    3122 Research Associate

    
    

    Notes: Open Competitive. Two years of Social Science or public policy research involving Production or reports: Use of PC in Two of the following four areas: word-processing, spreadsheet, statistical analysis or graphic applications preferred.

    
    

    Min. Qual: A bachelor's Degree from an accredited college or university and three years of professional experience in statistics, research, analysis or program evaluation.

    
    

    A Master's Degree from an accredited college or university can substitute for one year of the required experience.

    
    

12. The "Vacancy Notification/Action Form" submitted in support of the Job Opportunity Announcement, dated December 17, 1996, contains the following statement:

    Preferred Qualifications: At least 2 years of social science or public policy research involving production of reports; use of personal computers in two of the following four areas: word processing, the spreadsheet, statistical analysis or graphic application.

    
    

13. A vacancy announcement published in the "Tallahassee Democrat" on January 19, 1997, contains the same statement of preferred qualifications. The preferences are consistent with the official job description for position 02925 as contained in Class Code 3122 for the class title of research associate. The class specifications also include the caveat that "additional

    knowledge, skills and abilities may be applicable for individual positions in the employing agency."

14. Within Respondent's structure, Ken Baugh supervised position number 02925 and was responsible for the hiring process, inclusive of the placement of the job announcement and the vacancy advertisement. Baugh based the stated job specifications upon the Career Service Class Specifications, as well as his knowledge of the requirements to perform successfully in the position.

15. Prior to advertising the position, Baugh developed a selection package which included a work sample test, a job description, a list of knowledge, skills and abilities, a screening criteria, application review process, and interview questionnaire. Baugh submitted the package to the Office of Civil Rights and Minority Affairs within Respondent's structure where it was approved. Such approval indicates that the package reflected a process to measure core job duties.

16. Respondent received 115 applications for position 02925. Five applicants were interviewed for the position. All met the minimum qualifications for the position.

17. Gary Sabitsch, a white male born on September 24, 1965, was the successful candidate. Sabitsch has a bachelor's degree and has been employed for four years by a private entity as a research associate. He performed tasks in his research associate position inclusive of governmental consulting, as well as

    collection and analysis of data. Sabitsch's qualifications also include experience in word processing, spreadsheets, and graphics. His computer software usage and experience also are more extensive than that of Petitioner, in Baugh's estimation.

    The experience of Sabitsch in the public policy or social science arena more appropriately met Braugh's expectations for the successful candidate than the experience of Petitioner which was limited to the natural science area. In his evaluation and interviews, and subsequent selection of Sabitsch, Baugh used the interview package previously approved by the Office of Civil Rights. Baugh had no previous knowledge of Sabitsch prior to the interview.

18. Applications provided to Baugh did not have the EEOC survey portion, which permits an applicant to voluntarily reveal age and race. These portions of the applications had been previously removed prior to Baugh's perusal.

19. Baugh's selection of Sabitsch was approved by Respondent's Office of Civil Rights.

20. Petitioner presented no evidence that the selection process was varied so as to discriminate on the basis of age or race. Further, he presented no evidence that he met the preferred criteria noticed for the position.

21. In summary, there is no credible evidence that Respondent's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no

    evidence that the employment decision at issue in this proceeding was grounded on discriminatory animus in any respect, or that a discriminatory reason motivated Respondent's actions.

    CONCLUSIONS OF LAW

    
    

22. 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).

23. Section 760.10(1)(a), Florida Statutes (1995), reads 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."

       
       

24. 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).

25. Initially, it is noted that Petitioner has arguably met his burden of proving a prima facie case of race discrimination as to position 002925. This is because the record shows that Petitioner was a member of a protected class (age, race, and gender); he met the minimum qualifications for the positions; he was subject to an adverse employment decision; and a person outside the protected class was chosen for the positions.

26. In response to the foregoing showing, Respondent articulated a legitimate, nondiscriminatory reason for its employment decision. That is to say, Petitioner was not hired because another candidate was deemed better qualified. See, e.g., Pelli v. Stone Savannah River and Pulp and Paper, 878 F.Supp. 1559, 1565 (S.D. Ga. 1995)("promotion of an employee who is deemed more qualified than the Petitioner for the position is a legitimate, nondiscriminatory reason"). Petitioner failed to show that Respondent's proffered reasons were a pretext for discrimination. This being so, the Petition for Relief must be denied.

RECOMMENDATION

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

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

DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 8th day of June, 2000.

COPIES FURNISHED:

Ausbon Brown, Jr. Post Office Box 289

Daytona Beach, Florida 32636

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

Sonja P. Mathews, Esquire Department of Labor and

Employment Security Hartman Building, Suite 307

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2199

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: 99-004038

Orders for Case No: 99-004038