STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYLVESTER A. HOLLY, JR.,

Petitioner,

vs.

SOLUTIA, INC.,

Respondent.

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) Case No. 01-2078

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RECOMMENDED ORDER

This matter came on for final hearing before Stephen F. Dean, Administrative Law Judge, Division of Administrative Hearings, on October 23 and 24, 2001, in Pensacola, Florida.

APPEARANCES

For Petitioner: Sylvester A. Holly, Jr., pro se

Post Office Box 301 Cantonment, Florida 32533

For Respondent: Erick M. Drlicka, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street Pensacola, Florida 32596

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner because of his race or age when he was not selected as Lead Mechanic in Area I KA/Nitric.

PRELIMINARY STATEMENT

Petitioner, Sylvester Holly (Petitioner), filed a Charge of Discrimination against Respondent, Solutia, Inc. (Respondent), alleging that Respondent discriminated against him because of his race and age when he was not selected for the Lead Mechanic position in Area I KA/Nitric.

Petitioner filed an Amended Charge of Discrimination on January 5, 2000. Respondent filed an answer on March 23, 2000. The allegation of discrimination was being investigated by the Florida Commission on Human Relations. However, on March 22, 2001, Petitioner filed an Election of rights stating more than

180 days had elapsed since he filed his Charge of Discrimination and that he wished to withdraw his charge and file a Petition for Relief to proceed with an administrative hearing pursuant to Sections 760.11(4)(b) and (8), Florida Statutes.

A final hearing was held on October 23 and 24, 2001.

Petitioner presented the oral testimony of Wayne Blackwood and Terry Wilcox, as well as his own testimony. Petitioner also introduced into evidence the job posting for Area I Lead Mechanic, Terry Wilcox' panel interview form, and Area I - Lead Mechanic Panel Interview of all interviewers. Respondent presented the oral testimony of Nikki Owens, Mike Conley and Lerissa Rowe. Respondent also introduced into evidence Petitioner's Charge of Discrimination, Petitioner's Self

Nomination Form for Area I Lead Mechanic position, the Panel Interview Forms for the Area I Lead Mechanic position, a summary of the feedback given to the applicants for the Area I Lead Mechanic position, individual feedback forms, and a form reflecting recalculated scores of the applicants for the Area I Lead Mechanic position. Both parties submitted proposed recommended orders which were read and considered.

FINDINGS OF FACT

1. Petitioner is a black male who was over 40 at the time he applied for the Area I (One) Lead Mechanic position.

2. At the time Petitioner applied for the Area I Lead Mechanic position, he was a lead mechanic in the Central Maintenance Compressor and Gear Box shop, pay grade level 28 position.

3. Pay grade level 28 is the highest nonexempt pay grade at Solutia, Inc.

4. On January 25, 1999, Solutia posted a job opening for a lead mechanic position in Area I KA/Nitric, a pay grade level 28 position.

5. Petitioner applied for the Area I Lead Mechanic position.

6. Had Petitioner been selected for the Area I Lead Mechanic position, it would have been a lateral transfer and not a promotion because Petitioner was already at a level 28 pay

   grade. No evidence was received that the incumbent of the Area I Lead Mechanic position would have had more authority or promotion opportunities than the position previously held.

7. Petitioner, along with three other mechanics, interviewed for the Area I Lead Mechanic position. The other three applicants were: William G. Cook (a white male);

   Joseph S. Mann (a white male); and David Wolfe (a white male). Petitioner admits that all the applicants were qualified for the Area I Lead Mechanic position.

8. Respondent used a ranking procedure to evaluate the applicants for the Area I Lead Mechanic position. The applicants were ranked by subjectively grading their answers to questions in five areas: 1) problem-solving and decision-making ability; 2) teamwork and coaching ability; (3) communication ability; (4) honoring differences; and (5) results orientation and initiative. The applicants were given a score from one to five by each panel member based upon the panel members' subjective assessment of applicants’ answers on each of the five criteria. Five was the highest grade and one being the lowest. The points were totaled and converted into a percentage score. The applicant having the highest overall score was selected to fill the job.

9. The applicants were interviewed by a panel composed of six employees: Nikki Owens; Mike Conley; Darren Dobson; Tony Williams (a black male); Terry Wilcox (who was over 40 at the time of the interview); and Greg Barker. All of these persons were from Area I. The majority of the panel worked regularly with the person ultimately selected.

10. Petitioner admits that there was no overtly discriminatory questions or activity in the interview.

11. There were no questions or discussions amongst the panel members about the applicants' race or age.

12. The panel members scored each applicant separately without knowing how the other panel members scored the applicants.

13. The panel members scored the applicants as follows:

    
    

    	W. Cook	S.	Holly	J. Mann	D. Wolfe
    Nikki Owens	45%		77%	90%	67%
    Michael Conley	53.3%		63.3%	70%	63.6%
    Darren Dobson	40%		63%	70%	67%
    Greg Barker	40%		57%	73%	57%
    Tony Williams	57%		73%	67%	50%
    Terry Wilcox	33%		66.6%	76.6%	57.7%

    
    

14. After the individual panel members totaled their respective scores, the applicants were ranked. Joseph Mann was ranked first by five of the six panel members, and one panel member, the black male, ranked Petitioner first.

15. The panel discussed the results and reached a unanimous consensus to offer the Area I Lead Mechanic position to Joseph Mann.

16. The panel prepared and provided feedback to all the applicants. Petitioner's shortcoming was that he failed to give specific examples to questions posted during his interview.

17. When he was not selected, Petitioner complained about the outcome, believing he was the most qualified applicant and was rejected for racially motivated reasons.

18. Rachel Gold (a black female) and Lerissa Rowe, who both worked in Respondent's Human Resources Department, investigated Petitioner's complaint. During their investigation, it came to their attention that a panel member, Terry Wilcox, stated to a co-employee, "I don't think that there would ever be two black people in charge of a group of white mechanics in a shop."

19. After learning of Terry Wilcox' comment, Respondent took the following action: (a) Respondent recalculated the panel's score leaving out Terry Wilcox' score; and (b) Respondent disciplined Terry Wilcox by suspending him for two days without pay.

20. After recalculating the scores, Joseph Mann still had the highest overall score. Petitioner's overall score remained the same.

21. Petitioner remained with Respondent until he voluntarily retired effective November 1, 1999. No one forced Petitioner to retire. The decision was Petitioner's alone, prompted in part by a change in Respondent's retirement plan.

22. Petitioner admits that none of the panel members had ever discriminated against him because of his race or age prior to the complained of selection.

23. Since retiring, Petitioner has not sought employment elsewhere. He is basically enjoying retirement.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

25. Under the provisions of Section 760.10, Florida Statutes, it is an unlawful employment practice for an employer:

    1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

       
       

26. The Florida Commission on Human Relations and the Florida Courts have determined that federal discrimination law should be used as guidance when constructing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power

    Corporation, 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

27. In order to obtain relief, the Petitioner must demonstrate that he comes within the scope of the statute quoted above. This case does not involve the Petitioner’s discharge or failure or refusal by the employer to hire Petitioner. To prevail, Petitioner must show Respondent discriminated against him with respect to compensation, terms, conditions, or privileges of employment.

28. This showing is similar to the requirement in federal cases to show an adverse employment action as discussed in Burger v. Central Apartment Management, Inc., 168 F.3d 875 (CA5- 1999). The determination whether the action is adverse is based upon an objective standard, and not a subjective standard. The desire of the employee to remain in his or her current position or to transfer to another like position will not be considered in determining an adverse employment action. See Doe v. DeKalb

    County School Board, 145 F.3d 1441, 1448 (CA 11-1998).

    
    

29. The record in this case does not show Petitioner suffered any discrimination in respect to his compensation, terms, conditions, or privileges of his employment. He did not suffer an adverse employment action. Therefore, Petitioner does not come within the scope of the statute.

30. The Supreme Court of the United States established in McDonnell-Douglas Corporation v. Green, 411 U.S. 248 (1981), the analysis for courts to utilize in Title VII cases. The order of proof and burden of proof in an age/race discrimination case involves the "traditional" standard set forth in McDonnell- Douglas Corporation v. Green, 41 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). That is, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If the prima facie case is demonstrated, a presumption of discrimination arises and the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. The burden of producing evidencing is next placed on Petitioner to demonstrate that the proffered reason is pretextual. The ultimate burden of persuasion remains at all times with Petitioner. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 513, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407,

416 (1993). Petitioner failed to show that he came within the scope of the statute; therefore, he failed to make a prima facie case.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the instant petition.

DONE AND ENTERED this 30th day of November, 2001, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 30th day of November, 2001.

COPIES FURNISHED:

Sylvester A. Holly, Jr. Post Office Box 301 Cantonment, Florida 32533

Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon

30 South Spring Street Pensacola, Florida 32596

Denise Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Cecil Howard, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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: 01-002078

Orders for Case No: 01-002078