STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL A. DEMCHAK, )

)

Petitioner, )

)

vs. ) Case No. 02-2779

)

CITY OF ORMOND BEACH, )

)

Respondent. )

____________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on January 30, 2003, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Michael A. Demchak, pro se

3757 South Atlantic Boulevard, Apt. 1202 Daytona Beach, Florida 32118-7259

For Respondent: Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 350

324 South Hyde Park Avenue Tampa, Florida 33606-4127

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of violating the Florida Civil Rights Act of 1992, as amended, as alleged in the Petition for Relief.

PRELIMINARY STATEMENT

This matter began in November 2001, when Petitioner, Michael A. Demchak, filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that Respondent, City of Ormond Beach, had discriminated against him on account of his age when it failed to hire him for the position of Neighborhood Improvement Officer.1 After a Notice of Determination: No Cause was issued by the agency on

June 11, 2002, Petitioner filed his Petition for Relief.

The matter was referred to the Division of Administrative Hearings on July 15, 2002, with a request that an Administrative Law Judge be assigned to conduct a hearing. By Notice of Hearing dated July 25, 2002, a final hearing was scheduled on September 25, 2002, in Daytona Beach, Florida.

Respondent's Motion for Continuance was granted, and the matter was rescheduled to January 30, 2003, at the same location. On January 28, 2003, the case was reassigned from Administrative Law Judge P. Michael Ruff to the undersigned.

At the final hearing, Petitioner testified on his own behalf and offered Petitioner's Composite Exhibit 1, which was received in evidence. Respondent presented the testimony of Joanne Naumann, manager of the Neighborhood Improvement Division, and Lorenda Volker, director of the Human Resources

Department. Also, it offered Respondent's Exhibits 1-6, which were received in evidence.

The Transcript of the hearing was filed on February 13, 2003. Papers entitled "Hearing Impressions" and "Respondent's Brief to Hearing Officer [sic]" were filed by Petitioner and Respondent on February 20 and 24, 2003, respectively, 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. This proceeding involves an age discrimination complaint filed with the Florida Commission on Human Relations (Commission) by Petitioner, Michael A. Demchak. The complaint alleges that Respondent, City of Ormond Beach (City), unlawfully refused to hire him on account of his age. In a preliminary determination made on June 11, 2002, the Commission's Executive Director concluded that there was no reasonable cause to believe that an unlawful employment practice had occurred.

2. Mr. Demchak is a white male born on July 16, 1935.

   
   

   He worked as a police officer with the City of New York for twenty years (1957-1977); as a counselor and employment developer (1985-1986) and supervisor (1993-1997) with Daytona

   Beach Community College; as an investigator with the State Attorney's Office in Daytona Beach for an undisclosed period of time; and as a substitute teacher with the Volusia County School District (1988 and 1989). In addition, Mr. Demchak served for two years in the United States Army, having received an honorable discharge in 1956. He has also been a licensed real estate salesperson in the State of Florida for over twenty-five years, and has worked in that profession, at least part time, for many years. For the last four years, Mr. Demchak has been employed by Prudential Real Estate in Daytona Beach selling real estate. His specific income from that job since filing his complaint was not disclosed, but he described it as being not "very good" and only a "few thousand dollars." He received a B.A. in Management from Adelphi University in 1976.

3. In 2001, the City reorganized its Code Enforcement

   
   

   function and created in lieu thereof a new Community Improvement Division (Division). The purpose of the change was to give the new department a "kinder, gentler name for the public," to focus less on the writing of citations, and to provide instead a more customer-oriented service for its citizens. Prior to the change, the City had emphasized enforcement activities rather than assisting the citizens in complying with code regulations. Joanne Naumann, who had some

   thirty years' experience in code enforcement, mainly in Orange County, was named its manager. At the same time, the City created at least one position in the new Division, a Neighborhood Improvement Officer.

4. In late January or early February 2001, the vacant position was advertised in the Daytona Beach News Journal. According to the advertisement, the position's primary duties included "inspecting properties and developments for compliance with Land Development Code, City Ordinances, and State Statutes." Minimum qualifications included a Bachelor's degree in Public Administration or related field. The City also desired someone with "[s]ome experience in interpreting regulations related to zoning and other codes, [and] [k]nowledge of state and local environmental protection standards and regulations."

5. Having read the foregoing newspaper advertisement, by application dated February 12, 2001, Mr. Demchak applied for the new position with the City. He was then sixty-five years of age and was one of around twelve applicants for the job. All applications were forwarded to Ms. Naumann for a preliminary review.

6. Eight of the applicants, including Mr. Demchak, were selected by Ms. Naumann for a 30-minute initial interview, although one of the eight declined to be interviewed. There

   was no "favorite" candidate for the job, and the City did not have a particular candidate in mind when the applications were filed. Ms. Naumann and the City's director of the Human Resources Department, Lorenda Volker, conducted these interviews, although Ms. Naumann made the ultimate recommendation for hiring. Neither interviewer knew any of the candidates personally.

7. Each of the seven candidates was asked the same questions, and the two interviewers recorded the candidates' answers on an Interview Questionnaire. The interviewers' impressions of the candidates, however, were not recorded on that document. This same process was used by the City for filling virtually all of its job vacancies.

8. Both Ms. Naumann and Ms. Volker independently reached the same conclusions regarding Petitioner: that he was "brash"; that he was "arrogant"; that he was "authoritative"; that he was "evasive" in his answers; and that he had a "know it all" attitude. Both interviewers were also unhappy with what they perceived to be an unsolicited sexist comment made by Mr. Demchak at the end of the interview. While Ms. Naumann agreed that Mr. Demchak had extensive work experience listed on his application (which was why he was selected for an interview), she desired someone who could "reach out to the community" rather than taking a "heavy-handed" position with

   the citizens. This was consistent with the City's desire to create a more customer-oriented department rather than an authoritarian department which existed prior to the organizational change. Indeed, without good customer skills, an applicant would be rejected, and neither interviewer perceived Mr. Demchak as having those skills.

9. After the initial round of interviews, the interviewers narrowed the field to four candidates who were invited for a second round of interviews by Ms. Naumann alone. For the reasons described in Finding of Fact 8, Petitioner was not asked to participate in this round of interviews. The four candidates were then ranked, based on the outcome of their respective interviews. After the highest ranked candidate accepted another position, and the second ranked candidate could not pass a background check, the position was offered to, and accepted by, the third ranked candidate, Joshua A. Wall, then a 28-year-old white male. The age of the other three ranked candidates is not of record.

10. Mr. Wall graduated from Florida State University in 1996 with a degree in criminology. After graduation and until he accepted this position, he was employed at a golf club in the City as a proshop assistant and sales clerk. He was hired because of his good demeanor, his outstanding customer service skills, and his ability to coordinate activities, all of which

    were required for the position of Neighborhood Improvement Officer. In addition, he possessed a degree in criminology. Since being hired, Mr. Wall has done an "excellent" job for the City.

11. In choosing Mr. Wall, the City did not consider age as a criterion, and it did not reject Petitioner's application for that or any other discriminatory reason. In fact, the City employment records show that in the same year that Petitioner applied for the job, the City hired at least eleven persons who were fifty years of age or older, and almost half of its new employees that year were more than forty years of age. Although the City later advertised a second Neighborhood Improvement Officer vacancy, Mr. Demchak did not apply for that position. A person "approximately 50 years old" was eventually selected for the job.

12. Petitioner contended at hearing that even though the application did not ask for the candidate's age, the interviewers obviously knew his age by merely examining the documents attached to his application, and that they then used his age as a basis for his rejection. The evidence shows otherwise, however. He also contended that the interviewers were "disinterested" during the interview, that they were biased in their selection process, and that they concocted their negative impressions of him only after he filed his

    discrimination complaint. There is no credible evidence to support these contentions. Mr. Demchak further denied that he made a sexist comment during the interview, and he contended that his comments were misconstrued. However, both interviewers were offended by the statement. Finally, Petitioner criticized the impartiality of the Commission investigator who conducted the investigation of his complaint prior to its referral to the Division of Administrative Hearings. Even if this were true, however, the Commission's investigative report has not been considered in the resolution of this case.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

14. In the case of alleged discrimination, the charging party has the ultimate burden of proving that the employer intentionally discriminated against him. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To meet this burden, Petitioner can produce either direct or circumstantial evidence of discrimination. In this case, no direct evidence was shown. Therefore, the case must be analyzed according to the burden-shifting framework for cases alleging discrimination based on circumstantial evidence.

    Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1226 (11th Cir. 1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

15. To establish a claim of age discrimination, Petitioner must establish a prima facie case of discrimination, thus creating a presumption that the employer unlawfully discriminated against him. See, e.g., Anderson v. Lykes Pasco Packing Co., 503 So. 2d 1269, 1270 (Fla. 2nd DCA 1986). Under federal law, a prima facie case is made if the charging party shows (1) that he was over the age of forty;

    1. that he was qualified for and applied for the position;

       
       

    2. that he failed to receive the position; and (4) that a younger employee received the position at issue. Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001). However, more than a decade ago, the Commission expanded the scope of protection under Chapter 760, Florida Statutes, for individuals subject to its provisions by providing protection from cradle to grave. See, e.g., Sims v. Niagara Lockport Industries, Inc., 8 F.A.L.R. 3588 (Fla. Comm. Hum. Relations

    1986); Spears v. Ewell Industries, Inc., 12 F.A.L.R. 432 (Fla. Comm. Hum. Relations 1989). Under this more liberalized standard, a claimant need only show that someone of a different age was hired, and he does not have to be over the age of forty in order to file an age discrimination claim.

16. If the prospective employee succeeds in making out a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its failure to hire the prospective employee. Anderson at 1271. Should the employer meet this burden, the presumption created by the prima facie case is dropped, and the charging party must then prove by a preponderance of the evidence that the legitimate reasons offered by the employer were not true reasons, but were instead a pretext for discrimination. Id. A proffered reason cannot be a pretext for discrimination "unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

17. Here, Petitioner has established a prima facie case.

    
    

    He has shown that he was qualified for and applied for the position of Neighborhood Improvement Officer; that he was not hired by the City; and that a person of a different age was the successful candidate.

18. Notwithstanding this showing, the City articulated a legitimate, nondiscriminatory reason for its employment decision. More specifically, it desired to hire an individual who could provide a friendlier, more customer-oriented service to the public. Based on Mr. Demchak's interview, both interviewers concluded that Mr. Demchak lacked the good

customer skills required for the position. Petitioner failed to show that these reasons were false and that age discrimination was the real reason for the City's employment decision. This being so, the Petition for Relief should 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 denying the Petition for Relief and finding that no unlawful employment practice has occurred.

DONE AND ENTERED this 4th day of March, 2003, in Tallahassee, Leon County, Florida.

___________________________________ DONALD R. ALEXANDER

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 4th day of March, 2003.

ENDNOTE

1/ The Petition for Relief also alleged that Petitioner had been discriminated against on account of his veteran status. However, that claim is not cognizable under Chapter 760, Florida Statutes.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301-4859

Michael A. Demchak

3757 South Atlantic Avenue, Apt. 1202 Daytona Beach, Florida 32118-7259

Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 350

324 South Hyde Park Avenue Tampa, Florida 33606-4127

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301-4859

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 02-002779

Orders for Case No: 02-002779