vs.
Respondent.
) Case No. 02-4523
Pursuant to notice, a formal hearing was held in this case on April 7, 8, and 9, 2003, in Tallahassee, Florida, before Carolyn S. Holifield, the designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Roderick O. Ford, Esquire
Law Offices of Roderick O. Ford, P.A. Post Office Box 17421
For Respondent: James J. Lynch, Esquire
The issue is whether Respondent engaged in an unlawful employment practice by failing to promote Petitioner to a supervisory position.
Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission) on September 14, 2000. The Commission entered a Notice of Dismissal and Right to Sue on or about October 18, 2002.
Petitioner then filed a Petition for Relief which was forwarded to the Division of Administrative Hearings on November 19, 2002, for assignment of an administrative law judge to conduct a formal hearing on the petition.
The matter was initially set for hearing on January 30, 2003, but was continued at the request of the Petitioner. The case was subsequently rescheduled and conducted as noted above.
At the final hearing, Petitioner testified on her own behalf and called 11 witnesses. Petitioner's Exhibits C, D, E, H through M, O, Q, R, and S were received into evidence.
Respondent presented the testimony of nine witnesses. Respondent's Exhibits 1 through 5 were received into evidence.
At the conclusion of the hearing, after counsel for Petitioner indicated that Petitioner was ordering a transcript of the hearing, the parties agreed to file proposed recommended orders ten days after the transcript was filed. On April 23, 2003, counsel for Petitioner advised the undersigned that Petitioner had decided not to order the transcript of the hearing. Thereafter, by agreement of the parties, the time for
filing proposed recommended orders was set for May 6, 2003. Both parties timely filed Proposed Recommended Orders which have been considered in preparation of this Recommended Order.
Petitioner is a white female. At all times relevant to this proceeding, Petitioner was over the age of 40.
Respondent, the Hillsborough County Tax Collector (Tax Collector), is an elected public officer in Hillsborough County, Florida, and is responsible for collecting certain taxes within that county.
The Tax Collector's Office is divided into two main Divisions, the Tax and License Division and the Motor Vehicles Division. The work done by these two Divisions is different and the training and work experience for each Division are considered unique. The Tax and License Division collects taxes on both real and personal property and issues hunting, fishing and occupational licenses. The Motor Vehicle Division issues drivers licenses and motor vehicle tags and titles. Some of the Tax Collector's branch offices are full-service offices, which provide the services of both the Tax and License Division and the Motor Vehicle Division.
Petitioner was hired by the Hillsborough County Tax Collector's Office as a Clerk III on March 4, 1994. At the time Petitioner was hired by the Tax Collector, she was 49 years of
age. She resigned from her position as a Clerk III on March 17, 2000, when she took a lateral transfer to the Water Department.
During the six years that Petitioner was employed by the Tax Collector's Office, she worked exclusively in the Tax and License Division. Petitioner was a "detailed oriented" person and did a good job as a Clerk III. There is no dispute that she performed well within her assigned Clerk III duties.
After working for many years in the area of occupational and hunting licenses of the Tax and License Division, Petitioner's managers asked her to rotate into other areas of the Tax and License Division for cross-training. As part of this cross-training, Petitioner was reassigned to other areas within Tax and License Division. Petitioner did not like working in new areas and especially did not like working in the Real Estate Delinquent Tax Section. The reason was that she found it difficult to deal with taxpayers who were subject to losing their homes because they were unable to pay their taxes.
Petitioner never worked in the Motor Vehicle Division of the Tax Collector's Office.
After several years of working as a Clerk III, Petitioner applied for some promotional opportunities as a Clerk IV. At the time Petitioner was applying for promotion, the Clerk IV position was a first line supervisory position. Moreover, the incumbent Clerk IV had to take over for the
supervisor or manager in his or her absence. Petitioner, like all other applicants for promotion, was given the opportunity to have an interview as it was the policy of the Tax Collector's Office to interview any candidate who desired an interview.
Jackie Wilhelm, a General Manger in the Motor Vehicle Division, interviewed Petitioner in June or July of 1997 and, again, in March or April of 1998 for a Clerk IV position in the Motor Vehicle Division. Because Petitioner had worked for several years as a Clerk III in the Tax and License Division, she met the minimum requirements necessary for a Clerk IV position. However, both of the positions for which Petitioner was interviewed required Motor Vehicle Division work experience to be the best qualified person. Experience in the Motor Vehicle Division was important for an individual selected for a Clerk IV position in the Motor Vehicle Division because the person in that position was responsible for supervising the work of Clerk IIIs in that division. The most qualified applicant for the Clerk IV position in the Motor Vehicle Division would be a person who had first-hand knowledge and experience regarding the operations of the Motor Vehicle Division.
During the above-referenced 1997 and 1998 interviews, Jackie Wilhelm asked Petitioner if she would be willing to take a lateral transfer to a Motor Vehicle position so that she could
obtain motor vehicle experience. Petitioner declined both times.
Sometime between September 1997 and March 1998, Petitioner spoke to Charlotte Luke, who was her senior manager in the Tax and License Division, about promotional opportunities. During the discussion, Petitioner and Ms. Luke discussed ways for Petitioner to exhibit behavior that would enhance her chances of getting promoted. Ms. Luke suggested that Petitioner do the following: show leadership characteristics; take initiative for changes to make work processes more efficient; accept responsibility for writing efficient procedures that affect the whole department; volunteer to take on tasks that needed to be performed; show confidence in her decision making by being more assertive; demonstrate problem-solving ability in the absence of her supervisor; show an ability to do multiple tasks at one time. Ms. Luke also encouraged Petitioner to attend a career management class and a communications skills class.
After the discussion noted in the above paragraph, Ms. Luke asked Petitioner's immediate supervisors to be on the lookout for any indications that Petitioner was starting to demonstrate the characteristics she and Ms. Luke had discussed. Ms. Luke never got any positive reports that Petitioner was showing improvement in the areas suggested. Furthermore,
Petitioner was not observed exhibiting any of these characteristics while working in the Tax Collector's Office.
Petitioner filed a Charge of Discrimination on February 1, 2000, with the Equal Employment Opportunity Commission (EEOC) in which she claimed she was not promoted due to her age. After an investigation, the EEOC dismissed the charge. Petitioner then filed a Charge of Discrimination with the Commission on September 8, 2000, in which she claimed that she was not promoted due to her age. This charge was dismissed by the Commission on or about October 18, 2002.
During the time period applicable to Petitioner's charges, 365 days prior to her earliest EEOC complaint of February 1, 2000, or February 1, 1999, there were several promotional opportunities in the Tax Collector's Office. Of the number of promotional opportunities available during that time, Petitioner applied for only four such positions. All the positions for which Petitioner applied were in the Motor Vehicle Division and required motor vehicle work experience to be the best qualified.
The Motor Vehicle Division has roughly five times more supervisor-type positions (Clerk IV and above) than the Tax and License Division.
One position for which Petitioner applied was a Motor Vehicle training supervisor position. In October 1999, Rosemary
Johnson, Manager of Motor Vehicle Training, selected Marty Rodriguez for the Motor Vehicle training supervisor position. During the selection process for this position, Ms. Johnson and Barbara McCleary, Director of Motor Vehicles, interviewed Petitioner and 16 other individuals. Ms. Johnson and
Ms. McCleary, individually and independently, rated each applicant for this position. In these rankings, Petitioner was not ranked as one of the top applicants by either Ms. Johnson or Ms. McCleary. The reason was that Petitioner had no experience working in the Motor Vehicle Division. At the time of this selection, Ms. Johnson did not know of any allegations of age discrimination and made her selection on the basis of the best qualified for this position.
Petitioner also applied for two Motor Vehicle Clerk IV positions, both of which were filled in November 1999. These positions were assigned to the Palm River/Faulkenberg Office, a full-service office of the Tax Collector. Although this full- service office provided services of the Motor Vehicle Division and the Tax and License Division, the two Clerk IV positions for which Petitioner applied were in the Motor Vehicle Division. General Manager Parker interviewed Petitioner and during the interview noted that Petitioner did not have Motor Vehicle experience or experience with the Tax Collector's new computer system, which was used heavily in that office.
Ms. Parker selected April Johnson and Michelle Williams-Nedd for the two Clerk IV positions in the Motor Vehicle Division that were described in paragraph 17. The reason Ms. Parker selected these applicants is that they both had extensive experience with Motor Vehicle type work. In fact, at the time these openings occurred, Ms. Williams-Nedd and
Ms. April Johnson were working in the Motor Vehicle Division. Ms. Parker had personally worked with Ms. April Johnson and Ms. Williams-Nedd and she knew that both applicants had the ability and prior experience in the Motor Vehicle Division to perform the job of Clerk IV in that division.
At the time Ms. April Johnson was promoted to the Clerk IV position, she was twenty-five years of age. No evidence was presented regarding the age of Ms. Williams-Nedd at the time she was promoted.
In or about early 2000, Petitioner applied for a Motor Vehicle supervisor position in the South County Office. In February 2000, Tori Sydnor, General Manager of the South County Office, selected Juanita Gatica for the Motor Vehicle supervisor position. The reason Ms. Sydnor selected Ms. Gatica was that she knew of Ms. Gatica's work quality and prior experience working in the Motor Vehicle Division. Ms. Sydnor knew that
Ms. Gatica had Motor Vehicle experience because she worked many years with Ms. Gatica in that division. Furthermore, Ms. Sydnor
knew that experience in the Motor Vehicle Division was required to be the best qualified for the Motor Vehicle supervisor position.
In or about the Fall of 1999, Petitioner voluntarily withdrew herself from consideration for a Clerk IV promotion in the Tax and License Division. In September 1999, Susan Lagore was selected to fill that position.
Based on the evidence, it appears that during her employment with the Tax Collector, Petitioner has interviewed only once for a promotional opportunity in the Tax and License Division, although that is the Division where she had all her work experience.
Despite her success in performing the duties required in the Clerk III position, Petitioner was not considered a good prospect for promotion. Petitioner was a "detailed-oriented" person with little grasp of, or concern for, the larger picture and mission of the Tax Collector's Office. While a Clerk III at the Tax Collector's Office, Petitioner did not exhibit overall confidence or initiative or tolerance for change in the work environment. Petitioner did not show any capacity for supervisory level problem-solving; she showed little confidence in decision-making; and she was very introverted to the point where her introversion would be a hindrance, limiting her ability to relate to subordinates and customers.
Petitioner stated that she wanted to be promoted to Clerk IV. However, she did not take the steps to show she was best qualified for such a promotion. Petitioner did not perform very well during her interviews. Also, she failed to avail herself of the opportunity to increase her level of experience in the Tax Collector's Office. Specifically, Petitioner twice declined the opportunity for lateral transfer into the Motor Vehicle area. Such a transfer would have given her experience in the division of the Tax Collector's Office where most promotions and Clerk IV positions were found. Moreover, Petitioner did not demonstrate leadership ability and the ability or desire to direct the work of others. Finally, Petitioner tended to avoid all conflicts and, thus, would have found it difficult to resolve conflicts between employees or with citizens as a Clerk IV would be required to do when conflicts arose.
Many workers within the Tax Collector's Office were hired and/or promoted after they turned 40 years of age. For example, Rosemary Johnson was 42 years of age when hired and was
52 years of age when she was promoted to training manager.
Claudia Coleman was promoted to three supervisory positions after she was 51 years of age, with the last promotion to General Manager I occurring when she was 58 years of age. Other employees of the Tax Collector's Office who were promoted after
the age of 40 included Ann Kemeny, who was promoted to supervisor when she was 53; Susan Lane, who was promoted to training manager when she was 47; and Loides Rodriquez, who was promoted to Clerk IV when she was 52.
CONCLUSIONS OF LAW
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.
The Florida Civil Rights Act of 1992 (Act) is codified in Part I of Chapter 760, Florida Statutes. Subsection 760.10(1)(a), Florida Statutes, which is a part of the Act, is relevant to this proceeding and provides as follows:
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.
The Act, as amended, was patterned after Title VII of the Civil Rights Act of 1964 and 1991, Title 42 U.S. Code, Section 2000, et seq., as well as the Age Discrimination in Employment Act of 1967 (ADEA), Title 29 U.S. Code, Section 623. Therefore, case law construing Title VII is persuasive when
construing Section 760.10, Florida Statutes. See Gray v. Russell Corporation, 681 So. 2d 310 (Fla. 1st DCA 1996); Florida
Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
Title 29 U.S. Code, Section 631(a), provides that persons who are at least over the age of 40 are protected by ADEA.
In employment discrimination cases, Petitioner, the employee, has the burden of establishing by a preponderance of evidence a prima facie case of unlawful discrimination. If a prima facie case is established, the burden shifts to Respondent, the employer, to rebut this preliminary showing by producing evidence that the adverse action was taken for legitimate nondiscriminatory reasons. If the employer rebuts the prima facie case, the burden shifts back to the Petitioner to show by a preponderance of evidence that the Respondent's offered reasons for its employment decision were pretextual. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
To establish a prima facie case under the Act where, as here, there is no direct evidence of discriminatory intent, Petitioner must establish that: (1) she is a member of the protected group; (2) she was qualified for the position; (3) she was subject to an adverse employment decision; and (4) after her
rejection, the position was filled by a person outside Petitioner's protected group. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993); McDonnell-Douglass Corporation v. Green, 411 U.S. 792 (1973); Bryant, 586 So. 2d at 1209.
Petitioner established a prima facie case. The preponderance of the evidence established that (1) Petitioner is a member of a protected group in that she is over 40 years of age; (2) she was qualified for the Clerk IV position; (3) she was subjected to an adverse employment action in that she was not hired for a Clerk IV position in the Motor Vehicle Division of the Tax Collector's Office; and (4) the position was filled by a person outside Petitioner's group, April Johnson, who was
25 years of age.
Petitioner does not allege age discrimination in any of the other instances where she applied and interviewed for positions that would have been promotions, but for which she was not selected. Specifically, with regard to the promotion of Marty Rodriguez to a Motor Vehicle training supervisor in 1999 and of Juanita Gatica to a Motor Vehicle supervisor in 2000, Petitioner concedes in her Proposed Findings of Fact that she was not the most qualified applicant.
In this case, the Tax Collector met its burden to produce evidence of legitimate nondiscriminatory reasons for the adverse employment action. The evidence demonstrates a
legitimate business rationale for its actions, that although Petitioner met the minimum requirements for a Clerk IV position, she clearly was not the best qualified for the position. The Tax Collector produced credible evidence that Ms. April Johnson's experience in the Motor Vehicle Division made her a better candidate for the position of Clerk IV in the Motor Vehicle Division than Petitioner who had no experience working in that division.
In response, Petitioner failed to prove that the Tax Collector's reasons for not promoting her were pretextual, or that her age was the real reason that she was not hired. The preponderance of the evidence demonstrates that that Petitioner was not promoted because Ms. April Johnson was the more qualified candidate for the position. The Tax Collector reasonably determined that Ms. April Johnson was more qualified for a Clerk IV position in the Motor Vehicles Division because she had experience working in that division and, as a first line supervisor in that unit, such experience was important. Accordingly, Petitioner failed to meet her ultimate burden to prove that she was not selected for the Clerk IV position in the Motor Vehicle Division because of her age.
RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent committed no unlawful employment practice and dismissing the Petition for Relief.
DONE AND ENTERED this 16th day of July, 2003, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2003.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Roderick O. Ford, Esquire
Law Offices of Roderick O. Ford, P.A. Post Office Box 17421
James J. Lynch, Esquire
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
