STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD J. PRINCE,

Petitioner,

vs.

CITY OF ORLANDO,

Respondent.

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) Case No. 02-2660

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 24, 2002, by video teleconference between sites in Orlando and Tallahassee, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Scott E. Siverson, Esquire

501 North Magnolia Avenue Suite 100

Orlando, Florida 32801

For Respondent: Amy Thomas-Iennaco, Esquire

City of Orlando

400 South Orange Avenue 3rd Floor

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful employment practice when it failed to hire Petitioner as a shift supervisor at the Conserv I wastewater treatment facility.

PRELIMINARY STATEMENT

On October 22, 2001, Petitioner filed a charge of discrimination against the City of Orlando (City or Respondent) with the Florida Commission on Human Relations (Commission). In the charge of discrimination, Petitioner alleged that Respondent discriminated against him based upon his race (white) and his age (52) when it failed to hire him as a shift supervisor at the Conserv I wastewater treatment facility.

The Commission staff investigated the charge, and based upon that investigation, the Executive Director of the Commission issued a “no cause” determination on May 21, 2002. Notice of the determination was provided to Petitioner by U.S. Mail on that same date.

On June 25, 2002, Petitioner timely filed a Petition for Relief (Petition) with the Commission. The Petition alleged that the process by which the Conserv I shift supervisor was selected was “unfair,” “pre-determined,” and “tainted” because of the existence of “direct evidence of racial (or ‘reverse’) discrimination.”

On July 1, 2002, the Commission referred the Petition to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge to conduct a formal hearing on the Petition. As noted above, the hearing was held on September 24, 2002.

At the hearing, Petitioner testified in his own behalf and also presented the testimony of Klaus Blixer, the other unsuccessful candidate for the shift supervisor position, and George Clark, a former employee of the City’s wastewater bureau and a member of the panel that heard Petitioner's internal grievance with the City. Petitioner introduced one exhibit, which was received.1 At the hearing, Respondent presented the testimony of Ernie Cox, the plant manager for the Conserv I facility; Charles McComas, the chief operator of the Conserv I facility; Paul Deuel, the chief operator of the Conserv II wastewater treatment facility; and David Sloan, the chief of the City’s Wastewater Process and Operations Bureau. Mr. Cox,

Mr. McComas, and Mr. Deuel were the members of the committee that interviewed the applicants for the shift supervisor position that Petitioner sought. Respondent introduced one exhibit, which was received for impeachment purposes only.

Joint Exhibits 1 through 12 were also received into evidence.

The Transcript of the hearing was filed with the Division on October 30, 2002. The parties initially agreed to file their

proposed recommended orders within 10 days of the date that the Transcript was filed with the Division; see Rule 28-106.216, Florida Administrative Code; however, the deadline for filing the proposed recommended orders was subsequently extended to November 25, 2002, upon Petitioner's request. The parties' proposed recommended orders were timely filed, and were given due consideration by the undersigned in preparing this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing, the following findings are made:

1. Parties

   
   

   1. Petitioner is a white male. At the time of the events giving rise to this proceeding, Petitioner was 52 years old.

   2. Petitioner holds a Class “A” wastewater treatment plant operator license from the State of Florida.

   3. Petitioner has worked for the City as a wastewater treatment plant operator since 1991. All of Petitioner’s experience with the City has been at the City's Iron Bridge facility.

   4. Respondent is a municipality of the State of Florida.

      
      

   5. Respondent operates at least three wastewater treatment facilities -– known as Conserv I, Conserv II (not directly implicated in this case), and Iron Bridge -– through its

      Wastewater Process and Operations Bureau (Wastewater Bureau). Each facility is slightly different.

   6. The Conserv I facility has a capacity of 7.5 million gallons per day (mgd) and is designed to service approximately 75,000 people. The facility uses a unique, technologically complex process to treat wastewater. The treated wastewater from the Conserv I facility is used for irrigation, and is referred to as “reuse” or reclaimed water.

   7. The Iron Bridge Facility is larger than the Conserv I facility. It has a capacity of 40 mgd and is designed to service approximately 400,000 people. The facility uses a more traditional process to treat the wastewater. The treated wastewater from the Iron Bridge Facility is discharged into wetlands and rivers; it is not used as reclaimed water.

2. Hiring Process for the Conserv I Shift Supervisor

   
   

   1. In early 2001, a shift supervisor position came open at the Iron Bridge facility. Petitioner applied for that position, but he was not interviewed.

   2. The Iron Bridge shift supervisor position was filled by Don Proscia, a 64 year old white male. Mr. Proscia was a shift supervisor at the Conserv I facility, and his hiring at the Iron Bridge facility was considered to be a “lateral transfer” by the City. Apparently, the City does not interview other candidates where an existing employee requests a lateral transfer, which

      explains why Petitioner was not interviewed for the Iron Bridge shift supervisor position.

   3. As a result of Mr. Proscia’s lateral transfer, a shift supervisor position came open at the Conserv I facility.

   4. The minimum qualifications for the Conserv I shift supervisor position, as reflected on the job posting (Joint Exhibit 12), were graduation from high school, two years of experience in the operation of a wastewater treatment facility, and a valid Florida driver's license. The position also required a current Class "B" wastewater treatment operator license, and required a Class "A" license to be obtained within two years of employment. Experience in advance wastewater treatment and prior supervisory experience were preferred.

   5. Petitioner applied for the Conserv I shift supervisor position. Terry White and Klaus Blixer also applied for that position.

   6. Mr. White is an African-American male, and he was 29 years old at the time. He has worked for the City as a wastewater treatment plant operator since 1994. All of

      Mr. White’s experience with the City has been at the Conserv I facility. At the time of his application, Mr. White held a Class “B” wastewater treatment plant operator license.

      Subsequently, he obtained a Class "A" license.

   7. Mr. Blixer is a white male. The record does not reflect his age. Mr. Blixer has worked for the City as a wastewater treatment plant operator since approximately 1995. All of his experience with the City has been at the Iron Bridge facility. At the time of his application, Mr. Blixer held a Class “A” wastewater treatment plant operator license.

   8. The three applicants for the Conserv I shift supervisor position were interviewed by a committee composed of Ernie Cox, Charlie McComas, and Paul Deuel, all of whom are members of management with the Wastewater Bureau. Mr. Cox is an African-American male; Mr. McComas and Mr. Deuel are both white males. All of the committee members are 40 years of age or older.

   9. The committee interviewed each applicant and asked them the same set of interview questions. The interviews were all conducted on the same day.

   10. After all of the interviews were complete, the committee discussed their general impressions of each applicant. The committee did not make the hiring decision on that day. However, each of the committee members testified at the hearing that they ranked Mr. White the top candidate at that point, and two of the three committee members testified that they considered Mr. Blixer (not Petitioner) to be the second-best candidate.

   11. In an effort to obtain additional input on the applicants, Mr. Cox contacted Charles Thompson, the plant manager at the Iron Bridge facility where Petitioner and

       Mr. Blixer worked. Mr. Cox is the plant manager at the Conserv I facility where Mr. White worked, so he was generally familiar with him and his qualifications; however, he also obtained feedback on Mr. White from Mr. McComas, who was a chief operator at Conserv I and was more familiar with Mr. White's attendance and on-the-job performance.

   12. Mr. Thompson did not strongly recommend either Petitioner or Mr. Blixer. He characterized Petitioner as an "average" employee who did what was asked of him but nothing more.

   13. Mr. Cox relayed this information to the other members of the committee. Based upon the interviews and the additional information acquired by Mr. Cox, the committee unanimously agreed to recommend that Mr. White be hired for the Conserv I shift supervisor position.

   14. Mr. Cox forwarded the committee’s recommendation to David Sloan, the chief of the Wastewater Bureau. Mr. Sloan accepted the committee’s recommendation and forwarded it to Tom Lothrop, the director of the Environmental Services Department, for final approval. Mr. Lothrop gave final approval to the

       recommendation, and Mr. White formally assumed the shift supervisor position in June 2001.

   15. There is no credible evidence that either race or age were considered at any point during the interview process or that the committee was given a mandate by anyone in the City's management to hire a particular person or a person of a particular race or age for the Conserv I shift supervisor position. Indeed, at the hearing, each member of the interview committee adamantly (and credibly) denied consideration of race or age in connection with their recommendation to hire

       Mr. White.

       
       

   16. The committee members based their recommendation to hire Mr. White on his qualifications, work ethic, and experience at the Conserv I facility. As discussed below, Mr. White was more qualified for the Conserv I shift supervisor position than was Petitioner.

   17. The only direct evidence of discrimination cited by Petitioner in support of his claim allegedly occurred during the course of the internal grievance process initiated by Petitioner after he was not hired for the shift supervisor position. That process and the alleged evidence of discrimination are discussed below.

3. City’s Internal Grievance Process

   
   

   1. After Petitioner learned that he had not been hired for the shift supervisor position, he filed a grievance with the City. The grievance was denied at each step in the process as described below.

   2. The City’s grievance process includes four steps.

      
      

      Step One is a hearing before Petitioner's plant manager, i.e., Charles Thompson. Step Two is a hearing before the chief of the Wastewater Bureau, i.e., David Sloan. Step Three is a hearing before the director of the Environmental Services Department, i.e., Tom Lothrop. Step Four is a hearing before a three-member grievance committee composed of two persons selected by the City and one person selected by Petitioner.

   3. The first three steps are relatively informal and are not recorded. They are meetings and/or discussions to address the concerns of the person who filed the grievance. Step Four is a more formal hearing, and it is tape recorded.

   4. Petitioner waived his Step One hearing, and the record does not include any credible evidence regarding Petitioner's Step Three hearing. Indeed, the focus of Petitioner's discrimination claim is on events which allegedly occurred at the Step Two and Step Four hearings.

   5. Petitioner's Step Two hearing was conducted on September 14, 2001. There is no credible evidence that

      Mr. Sloan (or anyone else) made a statement at that hearing regarding a need or requirement to hire a minority for the Conserv I shift supervisor position.

   6. Petitioner's Step Four hearing was conducted on November 10, 2001.

   7. That portion of the tape recording of the Step Four hearing introduced by the parties in this proceeding does not include any direct evidence of discrimination. Mr. Sloan did state that given two equal candidates, he would favor the minority in an effort to increase the diversity in the Wastewater Bureau. However, he further stated (consistent with his testimony at the hearing) that race did not factor into the decision to select Mr. White for the Conserv I shift supervisor position because Mr. White and Petitioner were not equal candidates.

   8. One of the exhibits discussed by Mr. Sloan at the Step Four hearing compared the percentage of black and white managerial employees in the Wastewater Bureau as a result of Mr. White's promotion with the percentage which would have existed if Petitioner had received the shift supervisor position. That exhibit, which was received in this proceeding as Joint Exhibit 7, was prepared by Mr. Sloan solely for use at the Step Four hearing to rebut Petitioner's discrimination claim

      and to show that the City does not discriminate based upon race or age.

   9. The exhibit was not used in connection with the decision to select Mr. White for the Conserv I shift supervisor position. Indeed, there is no credible evidence that the document existed prior to the Step Four hearing.

   10. In any event, Joint Exhibit 7 shows that there is not a pattern of discrimination in the Wastewater Bureau against persons in Petitioner's class (i.e., white males over age 45). The exhibit shows that more than 67 percent of the managers and supervisors in the Wastewater Bureau are white, and 35 percent of the managers and supervisors were promoted to those positions after the age of 46.

   11. The other exhibit discussed by Mr. Sloan at the Step Four hearing compared the qualifications of Mr. White and Petitioner. That exhibit, which was received in this proceeding as Joint Exhibit 6, presents an incomplete view of Petitioner's education and training because Mr. Sloan obtained the information on Petitioner (and Mr. White) from the personnel files maintained at the Wastewater Bureau, not the files maintained in the City's Personnel Office. The omissions in Joint Exhibit 6 are immaterial in this proceeding, however, because the record includes the Personnel Office files for Petitioner (Joint Exhibit 1) and Mr. White (Joint Exhibit 2),

       and those exhibits rather than Joint Exhibit 6 were relied upon in evaluating the relative qualifications of Petitioner and

       Mr. White.

       
       

4. Relative Qualifications of Petitioner and Mr. White

1. Both Petitioner and Mr. White met the minimum qualifications for the Conserv I shift supervisor position as reflected on the job posting.

2. Neither Petitioner nor Mr. White has a college degree, but both have taken college courses. Mr. White has taken courses towards a business administration degree at Valencia Community College. Petitioner completed a correspondence course from Michigan State University on supervisory management in the water and wastewater field.2

3. Both Petitioner and Mr. White have attended numerous seminars and continuing education courses on wastewater.

4. Petitioner has held a Class "A" wastewater treatment plant operator license since at least 1995. Mr. White held only a Class "B" license at the time of his application; however, he obtained his Class "A" license in April 2002, which is well within the time specified in the job posting for the shift supervisor position.

5. Mr. White has a reclaimed water field inspector certification, which is important for Conserv I because the

   facility produces reclaimed water. Petitioner does not have this certification.

6. Both Petitioner and Mr. White had worked "out of class" as shift supervisors at their respective plants. Both performed well in those positions.

7. Petitioner had slightly more experience than Mr. White as a wastewater treatment plant operator with the City, i.e., 10 years compared to seven years. However, all of Mr. White's experience was at the Conserv I facility, whereas all of Petitioner's experience was at the Iron Bridge facility.

8. The location of the experience was one of the most significant factors in the hiring decision. Mr. White's experience at the Conserv I facility meant that he would not have a significant learning curve in the shift supervisor position. By contrast, it would take Petitioner at least three to six months to adapt to the operational differences at the Conserv I facility.

9. The other significant factors in the hiring decision were Mr. White's work ethic, his demonstrated communication and leadership skills, and his familiarity with the City's policies and procedures. Mr. White demonstrated his communication and leadership skills as a union representative and as a member of the City's pension advisory board. Mr. White's familiarity with the City's policies and procedures was important because he

   would be responsible for interpreting and applying those policies and procedures to the employees that he supervised.

10. Mr. White was characterized by his supervisors as an exemplary employee who was highly motivated and takes pride in performing his job well. He willingly took on additional tasks, and he worked well without direction. By contrast, Petitioner was characterized by his supervisors as an "average" employee who did what was asked of him but nothing more.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11(7), Florida Statutes. (All references to Sections are to the Florida Statutes (2001).)

12. It is undisputed that Petitioner’s charge of discrimination and his Petition were timely filed with the Commission. It is also undisputed that the City is an employer subject to the Florida Civil Rights Act of 1992 (Act), and that Petitioner is an employee protected by the Act. Accordingly, the only issue in this proceeding is whether the City’s failure to hire Petitioner as a shift supervisor at the Conserv I plant was an unlawful employment practice.

13. Section 760.10(1)(a) provides that it is an unlawful employment practice for an employer:

    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.

    
    

14. This language was patterned after Title VII of the Civil Rights Act of 1964. Therefore, case law construing Title VII is persuasive when construing Section 760.10. See Gray v. Russell Corp., 681 So. 2d 310 (Fla. 1st DCA 1996); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

15. The charge of discrimination filed by Petitioner with the Commission alleged that he was not hired for the shift supervisor position as a result of both his age and his race. The Petition did not include any allegations of age discrimination; it only alleged racial discrimination. Nevertheless, the parties each presented testimony and evidence at the hearing to support or refute Petitioner’s age discrimination claim. Accordingly, both potential bases of discrimination –- i.e., race and age -– were considered by the undersigned in reviewing the evidence and formulating this Recommended Order.

16. Throughout this proceeding, Petitioner has argued that he is challenging the process by which the City hired the shift

    supervisor for Conserv I, and not the result of that process. Petitioner argues that the process was “unfair,” “pre- determined,” and “tainted” as a result of statements attributed to Mr. Sloan about the need to hire a minority for the shift supervisor position. These are allegations of pretext, not an independent basis for a discrimination claim. See, e.g., Denney

    v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001) (discussing the types of discrimination claims under Title VII, and treating allegations similar to those made by Petitioner as allegations that the employer's decision to promote blacks over whites was pretextual).

17. The preponderance of the evidence does not support Petitioner's position that Mr. White's promotion was pre- determined. To the contrary, the evidence shows that Petitioner, Mr. White and Mr. Blixer each went through the same interview process and were given equal consideration by the interview committee.

18. Mr. Sloan's comments at the Step Four hearing were not made during the interview process, and when those comments are viewed within the context that they were made, they fail to demonstrate that race was a factor (and certainly not the deciding or motivating factor) in Mr. White's selection over Petitioner. Indeed, the weight of the evidence (particularly the testimony of the members of the interview committee)

    demonstrates that race was not a factor considered in connection with the decision to hire Mr. White for the shift supervisor position.

19. Mr. Sloan's comments do not constitute direct evidence of discrimination in light of their substance, timing and context. As the Eleventh Circuit explained:

    Direct evidence of discrimination would be evidence which, if believed, would prove the existence of a fact in issue without inference or presumption. Only the most blatant remarks, whose intent could be nothing other than to discriminate . . . constitute direct evidence of discrimination.

    
    

    Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (citations and internal punctuation omitted; emphasis original). Similarly, the chart prepared by Mr. Sloan for use at the Step Four hearing (Joint Exhibit 7) to defend against Petitioner's allegations of discrimination does not constitute direct evidence of discrimination. See id. at 1081-82 (documents referring to age or birth dates of employees prepared for purposes of showing employees eligible for early retirement did not constitute direct evidence in age discrimination suit based upon employer's reduction in force); Ard v. Southwest Forest Industries, 849 F.2d 517, 521 (11th Cir. 1988) (chart that identified age and educational background of plant supervisors, but which was not relied upon in the employer's

    reorganization decisions, was insufficient to support age discrimination claim arising out of reorganization).

20. Because there is no credible direct evidence of discrimination, Petitioner's claim must be analyzed under the framework established by the United States Supreme Court in McDonnell-Douglass Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S.

    248 (1981). That framework was reaffirmed and refined by the Court in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

21. Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. See Hicks, 509 U.S. at 506. In order to establish a prima facie case, Petitioner must establish that:

    (1) he is a member of a protected group; (2) he was qualified for the position; (3) he was subject to an adverse employment decision; and (4) after his rejection, the position remained open and Respondent continued to seek applicants from persons of Petitioner's qualifications or the position was filled by a person outside Petitioner's protected group. Id.; Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir. 1997), Bryant, 586 So. 2d at 1209; School Board of Leon County v. Hargis,3 400 So. 2d 103, 108 n.2 (Fla. 1st DCA 1981).

22. If a prima facie case is established, the burden shifts to the City to produce evidence that the adverse

    employment action was taken for legitimate non-discriminatory reasons. Hicks, 509 U.S. at 506-07. Once a non-discriminatory reason is offered by the City, the burden then shifts back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination, i.e., the reason is false and that the real reason for the City's decision not to hire him was race. Id. at 507-08, 515-17. In this regard, the ultimate burden of persuasion remains with Petitioner throughout the case to demonstrate a discriminatory motive for the adverse employment action. Id. at 508, 510-11.

23. Petitioner established a prima facie case.

    
    

    Specifically, the preponderance of the evidence establishes that

    
    

    (1) Petitioner is a member of a protected group (white male over age 40); (2) he was qualified for the shift supervisor position;

    (3) he was subjected to an adverse employment action (he was not hired for the shift supervisor position); and (4) the position was filled by a person outside of Petitioner's group (Mr. White, a 29-year-old black male).

24. However, the City met its burden to produce evidence of a legitimate nondiscriminatory reason for the adverse employment action. Specifically, the City produced credible evidence showing that Mr. White's experience as a wastewater treatment operator at the Conserv I facility made him a better candidate for the shift supervisor position at that facility

    than Petitioner who had no experience at the Conserv I facility. The City also produced credible evidence showing that

    Mr. White's supervisors considered him to be an exemplary employee whereas Petitioner's supervisors considered him to be only an average employee.

25. In response, Petitioner failed to prove that the City's reasons for not hiring him were false or pretextual, or that his race or his age were the real reasons that he was not hired. Even if Mr. Sloan's comments at the Step Four hearing were considered as evidence that Mr. White's race was a factor in his hiring, the preponderance of the evidence is to the contrary and demonstrates that that Petitioner was not hired because Mr. White was the more qualified candidate for the position. See Denney, 247 F.3d at 1184-89 (affirming summary judgment granted against white plaintiffs who were passed over for promotions in favor of blacks because evidence demonstrated that blacks were more qualified for the positions based upon the criteria established by the employer and because the plaintiffs' evidence was insufficient to show that hiring decision was predetermined by the employer's affirmative action plan or otherwise). Accordingly, Petitioner failed to meet his ultimate burden to prove that he was not selected for the Conserv I shift supervisor position because of his race or his age.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief.

DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida.

T. KENT WETHERELL, II 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 13th day of December, 2002.

ENDNOTES

1/ Petitioner’s Exhibit 1 is a tape recording of the Step Four hearing requested by Petitioner pursuant to the City’s internal grievance process. The tape was not played at the final hearing; it was submitted after the hearing and reviewed in camera. Only those portions of the tape identified by the parties as being relevant to the issues in this proceeding –- i.e., the testimony of David Sloan -- were reviewed.

2/ At the Step Four hearing, Mr. White stated that he had received his degree from Valencia Community College, and Petitioner stated that he was one class short of his Associate's degree. Those statements are not corroborated by the personnel files that were introduced in this proceeding. In any event, the precise educational background of Petitioner and Mr. White is immaterial to the outcome of this proceeding because they

both had a high school diploma, which was the minimum qualification for the shift supervisor position, and there is no credible evidence that educational background was given significant weight in the hiring decision.

3/ The City has not argued that Petitioner's reverse discrimination claim is subject to a heightened or different standard of proof. On this issue, the Commission has expressly stated that the Act:

does not recognize the concept of reverse discrimination. The law simply prohibits discrimination in employment on the basis of race and color (among other bases) . . . a race discrimination case brought by a person who is white is to be analyzed the same way as a race discrimination case brought by a person who is not white.

Hall v. Sunshine Cleaning Systems, Inc., FCHR Order No. 02-053 (Oct. 7, 2002) (citing Bert v. Department of Education, 20

F.A.L.R. 155 (FCHR 1995), and Serwas v. Volusia County Government, 23 F.A.L.R. 4085 (FCHR 2001)) (emphasis supplied). The law of the Eleventh Circuit is in accord. See Zeh v. City of Orlando, 1999 WL 33117206, at *4 (M.D. Fla. 1999) (noting that the Eleventh Circuit does not follow the approach adopted in other Circuits which require the plaintiff in a reverse discrimination case to show as part of his or her prima facie

case background circumstances supporting the suspicion that the defendant is that unusual employer who discriminates against the majority) (citing Shealy v. City of Albany, 89 F.3d 804, 805 (11th Cir. 1996), and Wilson v. Bailey, 934 F.2d 301 (11th Cir. 1991)). And cf. Scholtz v. RDV Sports, Inc., 710 So. 2d 618, 623 (Fla. 5th DCA 1998).

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Scott E. Siverson, Esquire

501 North Magnolia Avenue, Suite 100 Orlando, Florida 32801

Amy Thomas-Iennaco, Esquire City of Orlando

400 South Orange Avenue 3rd Floor

Orlando, Florida 32801

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: 02-002660

Orders for Case No: 02-002660