TILAK B. SHRESTHA, )
vs. ) Case No. 00-1215
Respondent. )
On May 5, 2000, a formal administrative hearing was held in this case in Gainesville, Florida, before William R. Pfeiffer, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Tilak B. Shrestha, pro se
For Respondent: Robert M. Ott, Esquire
Whether Alachua County Environmental Protection Department discriminated against Tilak B. Shrestha based upon his race or national origin, in violation of Title VII of the Federal Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992, by releasing Mr. Shrestha from his temporary assignment through Temp Force with the Alachua County Environmental Protection Department and by not hiring Mr. Shrestha for the position of Senior
Environmental Specialist within the Alachua County Environmental Protection Department.
On January 27, 1997, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that Alachua County Environmental Protection Department discriminated against him based upon his race and national origin in August and December 1995. This charge was date-stamped by the Florida Commission on Human Rights on January 30, 1997. On February 8, 2000, Petitioner withdrew his charge and filed a Petition for Relief with Division of Administrative Hearings to proceed with an administrative hearing.
At the final hearing, Petitioner only presented his own testimony on his behalf. Respondents presented the testimony of non-experts Robin Hallbourg; Pegeen Hanrahan, P.E.; Prasad Kuchibhotla; and Chris Bird. Respondent's Exhibits 1-4 and 6-15 were admitted into evidence. Both Petitioner and Respondent submitted Proposed Recommended Orders which were considered.
Neither party requested a transcript of the hearing.
The State of Florida funds the Petroleum Cleanup Program (Petroleum Program) which is focused on removing petroleum contaminants from various sites within the State of Florida. The
Department of Environmental Protection (DEP) administers the Petroleum Program, also known as the Underground Storage Cleanup Program.
In 12 counties, including Alachua, Florida contracts with the county to manage the Petroleum Program. The Alachua County Environmental Protection Department (Alachua DEP) manages the Petroleum Cleanup sites in Alachua County.
Mr. Chris Bird has been the director of the Petroleum Program since 1993. He has worked with Alachua County since 1986. In the 1994-1995 fiscal year, the Florida Legislature was facing a deficit; therefore, the Legislature significantly reduced the funding for the Petroleum Program.
As a result, DEP froze the Petroleum Program, and dropped several active sites. The lack of funding resulted in downsizing at both the county and state levels at the beginning of 1995.
At the beginning of 1995, the Alachua DEP had three funded positions in the Petroleum Program. Mr. Alex Vieira occupied the position of full-time Professional Engineer. The Alachua DEP also had funding for an administrative position and a full-time Environmental Engineer/Geologist.
The Environmental Engineer/Geologist position was vacant at the beginning of 1995. The Alachua DEP originally advertised for the position. However, when the State reduced funding for the Petroleum Program, the Alachua DEP decided not to fill the
position with a permanent employee and ultimately froze this permanent position.
In order for the Petroleum Program to continue at a minimum level of operation, the Alachua DEP hired temporary employees through Temp Force, a temporary employment agency. Temp Force served as an independent contractor for the Alachua DEP. Temp Force provided Mr. Tilak Shrestha and Mr. Mike Shuler to the Alachua DEP Petroleum Cleanup Program. Mr. Shuler began working at the Alachua DEP through Temp Force two months prior to Mr. Shrestha's Temp Force assignment to the Petroleum Program.
At the time of the assignment through Temp Force, Shrestha was not credentialed as a Ph.D. Mr. Shrestha and Mr. Shuler were employees of Temp Force, received their paychecks from Temp Force and acquired no benefits from Alachua County. Mr. Shrestha worked as a Temp Force employee for six months at Alachua DEP and was assigned to various projects at the Alachua DEP. As supervisor for the Petroleum Program, Mr. Vieira assigned projects to both Mr. Shrestha and Mr. Shuler.
Mr. Shrestha described his working conditions during his assignment through Temp Force with the Alachua DEP as "good, no complaints," and "good on average."
In 1995, the Florida legislature ultimately reduced funding for the Petroleum Program from $1.2 million to approximately $250,000. When the Alachua DEP received notice of these funding cuts, Mr. Bird advised Mr. Vieira that he needed to
release one of the Temp Force employees from his assignment with the Alachua DEP. Mr. Vieira retained Mr. Shuler and informed Mr. Shrestha that he would no longer be working on the Petroleum Cleanup assignment through Temp Force.
Mr. Shrestha's assignment through Temp Force with the Alachua DEP was terminated on August 10, 1995. During Fall 1995, the legislature substantially changed the law and administration pertaining to the Petroleum Program, both at the county and state levels. In October 1995, Ms. Pegeen Hanrahan became the Petroleum Program supervisor following Mr. Vieira's resignation.
Ms. Hanrahan earned a Bachelor's degree in Environmental Engineering and Sociology and a Master's degree in Environmental Engineering. She is a registered Professional Engineer and a certified Hazardous Materials Manager. She began working for Alachua County in 1992 as an Environmental Engineer and later served for three years as Hazardous Materials Program Supervisor for Alachua County.
When Ms. Hanrahan became supervisor of the Petroleum Program in Fall 1995, the Petroleum Program had essentially entered a "stand-by" mode. The Alachua DEP declined to send any additional work to its sub-contractors. Therefore, the technical duties involved in the Petroleum Program were reduced and the administrative duties became more important.
During the Fall of 1995, there were no permanent employees on staff. Mr. Shuler remained as the only temporary
employee in the Petroleum Program and according to Ms. Hanrahan was doing a "perfectly adequate job." Based on the new and reduced Petroleum Program budget for the 1995-1996 fiscal year, the Alachua DEP acted in October 1995 to establish the position of Senior Environmental Specialist in lieu of the Environmental Engineer/Geologist position. The position was advertised in December 1995.
The main role of the Senior Environmental Specialist was to assist the Professional Engineer in the area of the administration involved in the Petroleum Program. The duties included filing reports, tracking sites, and submitting task orders and invoices to the office in Tallahassee.
Due to the increasing changes in the Petroleum Program, the Alachua DEP required a Senior Environmental Specialist who understood the Petroleum Program's administrative tasks, as well as the State policies pertaining to the Petroleum Program. The Senior Environmental Specialist candidate was required to have a technical background in fields including, but not limited to, engineering, biology or geology.
The Professional Engineer, not the Specialist, was assigned the technical review of the Petroleum Program. An applicant's understanding of the technical and administrative duties was necessary.
In 1995, the Alachua DEP advertised the position of Senior Environmental Specialist, which included printing an
advertisement in the local newspaper, per the County regulations. The Alachua DEP described the administrative tasks of Senior Environmental Specialist to include: preparing reports; making recommendations; receiving and investigating complaints; conducting performance evaluations; counseling, hiring and terminating employees.
The Alachua DEP described the knowledge, skills, and abilities of the Senior Environmental Specialist to include: thorough knowledge of the technical methods and procedures involved in the administration of environmental regulations, programs, and policies; knowledge of local, state, and federal rules, regulations, and ordinances related to environmental protection; ability to create concise, clear, and succinct technical reports; and ability to research technical problems, formulate recommendations, and compile related reports.
The Alachua DEP described the minimum qualifications for the position of Senior Environmental Specialist as: Bachelor's degree in environmental or natural science, civil or environmental engineering, geology, or hydrology, or related field, and two years' professional level environmental-related experience; or any equivalent combination of related training and experience.
The County received 14 applications for the position as Senior Environmental Specialist from applicants, which included Mr. Shrestha and Mr. Shuler.
Ms. Hanrahan was supervisor of the Petroleum Program in January 1996 and responsible for the hiring of the Senior Environmental Specialist. She received an Application Referral Document from personnel, stating that each of the applicants met the County's minimum requirements for the position of Senior Environmental Specialist. Upon receipt of the resume's and applications, Ms. Hanrahan initially screened the applicants for those who had petroleum-related experience. She narrowed the applicants to four individuals, who included Mr. Shrestha, Mr. Shuler, and two others.
On January 22, 1996, Ms. Hanrahan conducted a telephone interview of each of the four applicants who passed the initial screening. The telephone interview was customary hiring practice within the Alachua DEP. During the telephone interview, Ms. Hanrahan asked each applicant the same series of ten questions, designed to test the applicant's level of knowledge regarding technical and administrative aspects of the position of Senior Environmental Specialist.
Mr. Shrestha answered five out of a possible eleven answers correctly. This was the second highest score out of the four applicants. Shuler achieved the highest score, answering eight-and-one-half out of eleven answers correctly. Three interview questions specifically addressed administrative issues. Question six asked, "What does RBCA stand for?" Question seven stated, "This year the Florida Petroleum Cleanup Program has
adopted a new mechanism for review and approval of work on petroleum contaminated sites. Can you tell me what that program is called?" Question nine stated, "Give two examples of policy decisions under RBCA." Mr. Shrestha failed to answer question six, seven or nine correctly.
Mr. Shrestha's failure to correctly answer each of the administrative questions indicated to Ms. Hanrahan that he was unaware of the changes within the Petroleum Program.
Another purpose of the telephone interview was to assess the applicants under pressure. Ms. Hanrahan also sought to evaluate how the applicants responded to her authority. During the telephone interview, Mr. Shrestha challenged Ms.
Hanrahan regarding the relevance of the questions to the position of Senior Environmental Specialist and she noted his argumentative attitude during the interview. He conceded at the hearing that he did ask her about the relevancy of the questions.
Based upon his argumentative tone, Ms. Hanrahan questioned Mr. Shrestha about his ability to accept her supervisory decisions. She decided not to hire Mr. Shrestha for the position of Senior Environmental Specialist based on his limited knowledge of the administration of the Petroleum Program, a factor essential to the position of Senior Environmental Specialist, and his inability to accept her authority as supervisor.
Ms. Hanrahan was also aware of critical statements that Mr. Shrestha allegedly had made to female co-workers during his assignment through Temp Force at the Alachua DEP.
Ms. Robin Hallbourg is currently employed as Senior Environmental Specialist with the Alachua DEP. Ms. Hallbourg has been with the Alachua County DEP for 15 years. Ms. Hallbourg worked with Mr. Shrestha at the Alachua DEP during Mr. Shrestha's assignment through Temp Force. Ms. Hallbourg testified that Mr. Shrestha told her that "she should be home with her child" and that she "should allow a man to have her job." After this conversation, Ms. Hallbourg discussed his statements with others in the Alachua DEP, including Ms. Hanrahan. Ms. Hanrahan recalled the discussion with her.
Ms. Hanrahan hired Mr. Shuler for the position of Senior Environmental Specialist because he proved himself to be the most qualified candidate during the interview process.
Ms. Hanrahan kept an interview log on which she noted Mr. Shuler's strong qualifications for the position of Senior Environmental Specialist. She noted his "excellent experience in the Petroleum Cleanup Program and his significant applicable training and experience in program administration."
Ms. Hanrahan also noted that his "application and interview showed strong computer skills." Mr. Shuler's Bachelor's degree in Microbiology met the education requirements for the position of Senior Environmental Specialist. Moreover,
at the time of Shuler's application, there had been a growing emphasis placed on bi-remediation, which is currently a regularly used process. Given Ms. Hanrahan's education, training,and experience as a Professional Engineer, she determined that a Bachelor's degree in Microbiology was an appropriate background for the position.
In addition, Mr. Shuler had the technical knowledge of processes, performance of groundwater sampling, and drilling, as well as other relevant technical knowledge pertaining to the position of Senior Environmental Specialist. Additionally, due to his continued assignment in the Alachua DEP, he was aware of the new administrative duties required of a Senior Environmental Specialist.
Ms. Hanrahan had personally observed Mr. Shuler from October 1995 until January 1996, and was extremely satisfied with his performance.
As part of the usual hiring process, Ms. Hanrahan submitted her interview log, personnel action form, and applications to the personnel department to support her hiring decision. Mr. Bird approved the hiring decision in his capacity as director, and the personnel department, budget department, and Equal Employment Office then approved the decision.
Since his hire, Mr. Shuler has been commended by the Alachua DEP and his supervisors.
Ms. Hanrahan informed Mr. Shrestha that he had not been hired for the position during a telephone conversation on January 23, 1996. She did not base her decision to hire Mr. Shuler over Mr. Shrestha on the basis of race or national origin.
Ms. Hanrahan is fully aware of Alachua County's Equal Employment Opportunity policy through her position as advisor on the Equal Opportunity Advisory Committee. There is no evidence of any discriminatory hiring decision.
In fact, on the same day that Ms. Hanrahan hired Mr. Shuler for the position of Senior Environmental Specialist, she also hired Mr. Gus Olmos for the position of Environmental Engineering Supervisor. Mr. Olmos is from Panama and is Hispanic.
Moreover, Dr. Prasad Kuchibhotla is a Professional Engineer with a Bachelor's, Master's and Ph.D. in Chemical Engineering. He is from India and is Asian. Alachua County hired Dr. Kuchibhotla in 1997 and is the current Petroleum Cleanup Program Manager for Alachua DEP.
Dr. Kuchibhotla currently has a Senior Environmental Specialist working for him within the Petroleum Program. As was the case in December 1995, the current Specialist's primary duty is to assist him with the detailed administrative tasks involved with the Petroleum Program.
On January 27, 1997, Mr. Shrestha filed a formal Charge of Discrimination. The charge was date stamped as received by the Florida Commission on Human Relations on January 30, 1997.
Mr. Shrestha is currently employed with Bell South in Atlanta, Georgia. He earns $47,000 per year and receives health benefits.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter pursuant to Section 120.57(1), Florida Statutes.
The parties, Mr. Shrestha,and Alachua DEP have standing pursuant to 42 U.S.C.S. Section 2000e (1999) and Section 760.02, Florida Statutes (1999).
Mr. Shrestha brought this action pursuant to Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992. Federal case law regarding Title VII is applicable to Florida civil rights cases, because Florida's Civil Rights Act is patterned after Title VII of the Civil Rights Act of 1964. Florida Dept. of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991); Champion Int'l Corp. v. Wideman, 733 So. 2d 559, (Fla. 1st DCA 1999).
The complainant in a Title VII action, such as this one, carries the initial burden of establishing a prima facie case of racial or national origin discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Therefore, Mr. Shrestha was required to carry the burden of establishing a prima facie case that Alachua DEP discriminated against him on the basis of his race or national origin when it terminated his assignment through Temp Force, a temporary employment agency, with Alachua DEP.
In order to establish a prima facie case that complainant was terminated on the basis of race or national origin, complainant must: 1) prove that he was a member of a protected group and was adversely affected by an employment decision; 2) prove that he was qualified for his own position or to assume another position at the time of the discharge; and 3) produce sufficient evidence from which a rational fact finder could conclude that his employer intended to discriminate against him in making the discharge decision. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1331 (11th Cir. 1998)(following the analytical framework to prove a Title VII claim set forth in McDonnell Douglas, 411 U.S. at 802.)
Although Mr. Shrestha alleged he was a member of a protected class, but did not present specific evidence to prove his national origin and race, it is reasonable to conclude that he fits into a protected class.
It is clear that Mr. Shrestha was adversely affected by the decision to terminate his temporary assignment through Temp Force, and the record demonstrates that he was qualified for the temporary assignment. Notwithstanding, however, Mr. Shrestha was
never an employee of Alachua County. He was merely assigned to work at the Alachua DEP through Temp Force.
Alachua DEP's decision in August 1995 to terminate one of the temporary assignments was due to severe funding cuts for the Petroleum Program, and Alachua DEP chose to keep Mr. Shuler as the one temporary employee.
In addition, Mr. Shrestha admitted that the decision to keep Mr. Shuler in the Temp Force assignment was fair and nondiscriminatory, considering that Mr. Shuler had been assigned by Temp Force to Alachua DEP for two months longer than he. Mr. Shrestha failed to establish a prima facie case that he was terminated on the basis of race or national origin, because 1) Alachua DEP was never Mr. Shrestha's employer; and 2) Mr. Shrestha failed to establish that Alachua County intended to discriminate against him by terminating his assignment through Temp Force. Standard, 161 F.3d at 1331; see also Nix v. WLCY Radio, 738 F.d 1181, 1184 (11th Cir. 1984)(explaining that the "ultimate question" in a disparate treatment case is not whether the plaintiff established a prima facie case or established pretext, but "whether the defendant intentionally discriminated against the plaintiff").
Mr. Shrestha also alleges that Alachua DEP discriminated against him based upon his race or national origin when Alachua DEP failed to hire him for the position of Senior Environmental Specialist in December 1995. Again, Mr. Shrestha
was required to carry the initial burden of establishing a prima facie case by a preponderance of the evidence that Alachua DEP discriminated against him in its hiring decision. McDonnell Douglas Corp., 411 U.S. at 802; Grigsby v. Reynolds Metal Co., 821 F.2d 590, 594 (11th Cir. 1987).
In order to establish a prima facie case of discrimination based upon race or national origin in a failure- to-hire situation, the McDonnell Douglas standard requires the complainant to establish that: 1) he belongs to a protected class; 2) he applied and was qualified for a job for which the employer was seeking applications; 3) despite his qualifications, he was rejected; and 4) after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. Schoenfeld v. Babbitt,
168 F.3d 1257, 1267 (11th Cir. 1999)(applying the McDonnell Douglas framework of proving intentional discrimination to failure-to-hire situations.)
Although Mr. Shrestha failed to present any specific evidence to prove his national origin and race and merely alleged that he was a member of a protected class, it is reasonable to conclude that he fits into a protected class.
Alachua DEP conceded the second prong of the McDonnell Douglas analysis, since Mr. Shrestha applied for the position of Senior Environmental Specialist and met the minimum qualifications required for the position. Alachua DEP also
conceded the third prong of McDonnell Douglas. Although Mr. Shrestha met the minimum qualifications, Ms. Hanrahan determined that Mr. Shuler was the best candidate for the position and rejected Mr. Shrestha.
The decision not to hire Mr. Shrestha was made after all candidates were properly interviewed. The position remained open and the Alachua DEP continued to interview applicants from persons of Mr. Shrestha's qualifications. Mr. Shrestha met the bare minimum and established a prima facie case that Alachua DEP failed to hire him based upon his race or national origin.
As a result, the burden shifted to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. McDonnell Douglas, 411 U.S. at 802.
The burden on Alachua DEP to produce a legitimate, nondiscriminatory reason for rejection is a burden of production, not of persuasion. Schoenfeld, 168 F.3d at 1259; Standard, 161 F.3d at 1331 (stating in a discriminatory discharge case that the burden of production means that the employer must only produce evidence that could allow a rational fact-finder to conclude that the employment decision was not made for a discriminatory reason.)
Alachua DEP presented ample credible evidence that its decision not to hire Mr. Shrestha was based upon legitimate, nondiscriminatory reasons.
Mr. Shrestha possessed limited knowledge of the administration of the Petroleum Program. Due to the significant changes in the Petroleum Program, the knowledge was essential to the position of Senior Environmental Specialist. Mr. Shrestha's failure to correctly answer any of the administrative questions during the telephone interview indicated that he was unaware of the changes within the Petroleum Program. Therefore, Shrestha did not have the administrative knowledge to handle the Senior Environmental Specialist position.
Ms. Hanrahan also doubted his ability to work as part of a team and questioned his ability to accept her authority as supervisor. He was argumentative toward her and challenged the relevancy of the questions during the telephone interview.
During the decision-making process, Ms. Hanrahan considered his offensive comments to Mr. Hallbourg, suggesting that women should not work, but rather they should remain with their children in the home.
Ms. Hanrahan's decision to hire Mr. Shuler over Mr. Shrestha was justified based upon Mr. Shuler's education, training, and experience. Mr. Shuler answered the most questions correctly of any applicant during the telephone interview, including answering all of the administrative questions correctly. Mr. Shuler had the appropriate background for the position given his experience in the Petroleum Program, knowledge of Petroleum Program administration, strong computer and verbal
skills, and a Bachelor's degree in Microbiology. He also possessed the appropriate technical and administrative knowledge required for the position.
Each of her justifications for hiring Mr. Shuler over Mr. Shrestha was a legitimate, business decision. Schoenfeld,
168 F.3d at 1269; see also Nix, 738 F.2d at 1187 (stating that an employer may base its decision on "a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.")
Once the employer has presented its legitimate, nondiscriminatory reasons for not hiring the complainant, the burden shifts back to the complainant to prove by a preponderance of the evidence that the employer's stated reason was pretext for an actual discriminatory reason. McDonnell Douglas, 411 U.S. at 804; see also Grigsby, 821 F.2d at 594.
The complainant may establish pretext by either: 1) showing that the court should not believe the nondiscriminatory reasons behind the termination, or 2) demonstrating that the discriminatory reasons more likely motivated the decision than the nondiscriminatory reasons.
In order to demonstrate that Alachua DEP is not credible, Mr. Shrestha must establish "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proferred legitimate reasons for
its action that a reasonable fact finder could find the reasons unworthy of credence." Standard, 161 F.3d at 1333.
Mr. Shrestha presented no evidence to demonstrate that the Alachua DEP and Ms. Hanrahan was not credible. Moreover, Mr. Shrestha did not demonstrate any evidence of discrimination which may have motivated the Alachua DEP's decisions. In fact, Mr. Shrestha offered no actual evidence of discriminatory intent on the part of Alachua DEP, other than the fact that Alachua DEP hired Shuler instead of Shrestha in January 1996.
Alachua DEP met its burden of producing legitimate, nondiscriminatory reasons for rejecting Mr. Shrestha. He, on the other hand, did not meet his burden of persuasion that these legitimate, nondiscriminatory reasons were in fact pretext for discrimination.
Mr. Shrestha failed to establish Title VII discrimination on the part of Alachua DEP when it failed to hire him for the position of Senior Environmental Specialist.
RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Petitioner, Tilak B. Shrestha is not entitled to any relief relating to his charge of discrimination under Title VII of the Federal Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992.
WILLIAM R. PFEIFFER
Tilak B. Shrestha
Robert M. Ott, Esquire County Litigation Attorney Post Office Box 2877 Gainesville, Florida 32602
Dana A. Baird, General Counsel Florida Commission on Human Relations
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.
