STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD HARGROVE,

Petitioner,

vs.

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,

Respondent.

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) Case No. 05-2022

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RECOMMENDED ORDER

A formal hearing was conducted in this case on February 13 through 16, 2006, in Bartow, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert H. Grizzard, II, Esquire

Robert H. Grizzard, II, P.A. Post Office Box 992

Lakeland, Florida 33802-0992

For Respondent: Carol A. Field, Esquire

Valerie J. Martin, Esquire Office of the Attorney General

110 Southeast 6th Street, 10th Floor Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes

(2004),1 by retaliating against Petitioner because he engaged in protected activity.

PRELIMINARY STATEMENT

On October 26, 2004, Petitioner Richard Hargrove ("Petitioner") filed an Amended Employment Charge of Discrimination against Respondent Department of Highway Safety and Motor Vehicles (the "Department"). Petitioner alleged that the Department had denied him several promotions for which he had applied and was qualified, in retaliation for an earlier complaint he had filed alleging discrimination due to a perceived handicap.

On April 25, 2005, the Florida Commission on Human Relations ("FCHR") issued a Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice occurred. On May 26, 2005, Petitioner filed a Petition for Relief with FCHR.

On June 2, 2005, FCHR referred the case to the Division of Administrative Hearings. The hearing was initially scheduled to be held on August 16 through 18, 2005. The matter was continued twice before being held on February 13 through 16, 2005.

On February 7, 2006, an Order on the Department's Motion in Limine was entered. The Order stated that Petitioner would not be allowed to present evidence on issues that predated the Settlement Agreement and Release entered into by the parties on

July 8, 2003, to settle the complaint filed by Petitioner in the Circuit Court for the Tenth Judicial Circuit, in and for Polk County, Case No. GC-G-00-0141. The Order further stated that Petitioner could obtain affirmative relief only as to matters that occurred within 365 days before the filing of the Amended Employment Charge of Discrimination on October 25, 2004.2 However, the Order also stated that Petitioner would be permitted to present evidence on matters that occurred between the date of the Settlement Agreement and Release and the date the Amended Employment Charge of Discrimination was filed, but only to extent such evidence supported Petitioner's claims regarding a pattern of discrimination by the Department.

At the hearing, Petitioner testified on his own behalf and presented the testimony of Patricia Connery, Charles Gowan, and Gary Konopka, all employees of the Department. Petitioner's Exhibits 2 through 13 were admitted into evidence. Petitioner's Exhibits 12 and 13 were admitted under seal, to preserve the confidentiality of "examination questions and answer sheets" pursuant to Subsection 119.071(1)(a), Florida Statutes (2006).

The undersigned reserved ruling on the admission of Petitioner's Exhibit 1, which is hereby admitted.

The Department presented the testimony of Margaret Lamar, Dennis Valente, Danny Watford, Deborah Todd, Eileen Bishop, Clyde Schmitz, Erwin Robcke, and Richard Roth, all employees of

the Department at the times relevant to this proceeding. The Department's Exhibits 2, 3, 5 through 18 (including 16A),

20 through 31, 33 and 34 were admitted into evidence at the hearing.

A Transcript of the hearing was filed on March 24, 2006. The Department timely filed its Proposed Recommended Order on April 3, 2006. Petitioner untimely filed his Proposed Recommended Order on April 10, 2006. No objection having been raised to the late filing, Petitioner's Proposed Recommended Order has been accepted.

FINDINGS OF FACT

1. The Department is an employer as that term is defined in Subsection 760.02(7), Florida Statutes.

2. Petitioner was hired by the Department in 1978 as an Examiner I in Bartow and has continuously worked for the Department since his hiring. He held various positions within the Department through the years, including Supervisor I and Assistant Regional Administrator.

3. In 1998, Petitioner held the position of Hearing Officer in the Bureau of Administrative Review. In February 1998, Petitioner suffered a heart attack and underwent open heart surgery for the placement of two stents to repair the blockage to his arteries. On April 7, 1998, Petitioner submitted to Tommy Edwards, assistant director of the Division

   of Driver Licenses, a letter requesting a voluntary demotion from Hearing Officer to a word processing position, in order to reduce the stress and pressure of his employment. Petitioner's request was granted.

4. Later in 1998, Petitioner's health improved and he began applying for promotions, but was consistently passed over. He learned that for one Examiner I position, he had been the top candidate, but was not selected because of the letter he had written to Mr. Edwards and because Mr. Edwards had expressed concerns about placing Petitioner in a high stress position. Petitioner wrote a second letter to Mr. Edwards, dated

   February 9, 1999, to clarify that his physician had given him a clean bill of health, with no restrictions as to the type of job he was able to handle.

5. This situation led to Petitioner's filing a complaint against the Department in 2000, in the Circuit Court for the Tenth Judicial Circuit, in and for Polk County, Case

   No. GC-G-00-0141, based on 42 U.S.C. §§ 12111 et seq., the Americans with Disabilities Act, and Chapter 760, Florida Statutes, the Florida Civil Rights Act. On July 8, 2003, the parties entered into a Settlement Agreement and Release resolving this litigation. As a condition of the settlement, Petitioner agreed to release all claims against the Department connected with his complaint.

6. The Amended Employment Charge of Discrimination, filed on October 26, 2004, with the FCHR, alleges that the Department has denied Petitioner promotions and transfers in retaliation for his previous complaint.

7. At the final hearing, testimonial and documentary evidence was elicited as to Petitioner's applications for six positions within the Department. The selection processes for four of the positions, 903481, 2333, 902315, and 2986, occurred after the Settlement Agreement and Release was signed and less than 365 days before the Amended Employment Charge of Discrimination was filed. The Selection processes for two of the positions, 5350 and 5234, occurred after the Settlement Agreement and Release was signed, but more than 365 days before the Amended Employment Charge of Discrimination was filed. Evidence concerning the latter two positions was admitted for the limited purpose of demonstrating a pattern of discrimination by the Department.

8. The Department's selection process for an open position commences with advertising the opening. Applications are received, and a Department employee conducts an initial screening of the applications to determine which candidates meet the minimum qualifications for the position in question. Those applications passing the initial screening are then subjected to a detailed screening in which they are scored according to work

   experience and the knowledge, skills and abilities pertinent to the position, as well the state-mandated veterans' preference. The Department personnel in charge of filling the position set a cutoff score to ensure an adequate pool of interviewees, then a panel conducts interviews of the selected applicants. These interviews are scored, and the highest scoring candidate is generally offered the position. The Department does allow the second highest scoring candidate to be selected, if his or her score was within 10 points (on a 100-point scale) of the highest ranked applicant.

9. The applicant interviews are not free-form, but are conducted according to a process dictated by the Department. For the positions in question, the Department provides the interview panel with a list of five questions. Each candidate is given the list of questions and has fifteen minutes to read them and prepare a response. The interview panel then meets with the candidate, asks each question and listens to the answers. The interviewers then score the responses according to an answer key provided by the Department, which contains several "correct" answers to each question. A candidate may receive full or partial credit for his responses, depending on how many of the correct answers he provides. The candidates may also be given written exercises that are graded and scored by the

   interview panel. Each candidate for a given position is provided the same set of questions and written exercises.

10. The entire selection process, from initial screening of all applicants to final interview scores and selection of the successful applicant, is recorded on a spreadsheet document called the Applicant Selection Guide ("ASG"). Department policy provides that an existing ASG may be used to fill a subsequent comparable position, provided the second position is filled within six months of the process that generated the ASG, and the candidate who fills the second position is the highest ranked candidate remaining on the ASG, or is within 10 points of that candidate.

11. The first position Petitioner applied for was position 5350, a compliance examiner position in Pinellas County for the Division of Motor Vehicles. The application deadline was

    June 4, 2003. Out of 162 applicants, five were selected for interviews, including Petitioner. At the conclusion of the interview process,3 the highest scoring candidate was Gary Konopka. Petitioner and Allen Shaffer tied for second. The position was offered to Mr. Konopka, who declined it for personal reasons. The position was then offered to Mr. Shaffer, who accepted it.4

12. Richard Roth was the regional administrator for the Division of Motor Vehicles at the time position 5350 was filled.

    He retired in August 2003, shortly Mr. Shaffer was hired. Mr. Roth testified that he made the decision to hire

    Mr. Shaffer, but had no present recollection of how he decided to break the tie between Petitioner and Mr. Shaffer. Mr. Roth had no knowledge of Petitioner's complaint of discrimination, or of his lawsuit against the Department. Assistant Bureau Chief Edwin Robcke, Bureau Chief Charles Gowan, and Margaret Lamar, the senior consultant in the office of employee relations, who investigates discrimination charges within the Department, all testified that they were unaware of any Department-established procedure for breaking tie scores between applicants.

13. Petitioner next applied for position 5234, an operations analyst5 position in Hillsborough County for the Division of Driver Licenses' Bureau of Administrative Reviews. The application deadline was October 31, 2003. Deborah Todd, the program manager who would be the direct supervisor of the employee hired to fill position 5234, performed the detailed screening of the applications. Out of 113 applicants, five were selected to be interviewed, including Petitioner.

14. Ms. Todd conducted the interviews along with Eileen Bishop, an operations analyst in the bureau of administrative reviews. Stephen Walter was the top scoring candidate, but a recent disciplinary action in his current job rendered him ineligible for the promotion that position 5234 would have

    offered. Ms. Todd made the decision to offer the position to Deborah Leto, who had the second highest score. Ms. Leto accepted the position. Petitioner finished fifth out of the five candidates interviewed,6 and was notified by letter dated January 2, 2004, that he had not been selected for the position.

15. At the hearing, Ms. Todd testified that Petitioner's interview was "fair," in the sense of "not bad." His answers to the oral questions were too short, but he did receive the maximum points possible for his written work exercise.

    Ms. Bishop likewise testified that Petitioner did "fair" on his interview. Ms. Todd testified that she had not met Petitioner before the interview and had no knowledge of his prior lawsuit against the Department.

16. Petitioner next applied for position 902315, a compliance examiner position in Orange County for the Division of Motor Vehicles' Bureau of Field Operations. The application deadline was March 4, 2004. The ASG for position 902315 indicates that the interview process was conducted by Department employees Donn Lund and Marie Smith of the Winter Park office. Neither Mr. Lund nor Ms. Smith was called to testify in this proceeding.

17. The ASG indicates that approximately 125 people submitted applications and that 11 applicants were interviewed. Petitioner had the highest screening score of any candidate.

    However, it appears that once again Petitioner's interview was less than impressive. The successful applicant, Esteban Capo, received a score of 90 out of a possible 100 points. Petitioner received a score of 37 points, placing him in a tie for last place among the candidates interviewed.

18. At the hearing, Petitioner's recollection of his interview for position 902315 was lacking in detail. He simply testified that he recalled nothing untoward occurring during the interview that would account for his low score.

19. Petitioner next applied for position 2333, a compliance officer position in Hillsborough County for the Division of Motor Vehicles' Bureau of Field Operations. The application deadline was June 16, 2004. Out of 190 applicants, five were selected for interviews, including Petitioner. In the detailed screening, Petitioner scored 83 points, which tied him for the high score with Lina Botero.

20. Ms. Botero had the high score for the interview process, scoring 82.08 points, was offered position 2333, and accepted the position. Thomas Thayer had the second highest score, with 74.96 points. In August 2004, the ASG for position 2333 was used by region administrator Gary Konopka to fill the opening for position 5350 created by the promotion of Allen Shaffer to a field supervisor position. Position 5350 was offered to Mr. Thayer, who accepted the position.

21. In the interview process for position 2333, Petitioner scored 60.84 points, finishing fourth out of the five applicants interviewed. The interviewers for position 2333 were

    Mr. Konopka, field supervisor Clyde Schmitz, and Kelly Cook, who no longer works for the Department and did not testify in this proceeding. Mr. Schmitz testified that he had no recollection of Petitioner's interview for the position.

22. Mr. Konopka recalled that Petitioner's answers to the interview questions were "very curt, very brief, almost as if he were going through the motions." In contrast, Ms. Botero was extremely animated and very talkative. Mr. Konopka pointed out that the scoring criteria award points for multiple responses from a candidate, and, thus, Ms. Botero was better served by speaking more. As Mr. Konopka put it, "the more you talk, the better off you are because you may stumble into the answer." Mr. Konopka recalled that Mr. Thayer was a little nervous, but, like Ms. Botero, he gave several answers during the oral questions. Mr. Konopka characterized Mr. Thayer's written submissions as "superb."

23. Mr. Konopka testified that he knew nothing of Petitioner's complaint against the Department at the time of the interviews for position 2333 and that none of the members of the interview panel discussed Petitioner's complaint.

24. Petitioner next applied for position 2986, a senior highway safety specialist position in Orange County7 for the Division of Motor Vehicles. The application deadline was

    June 29, 2004. Out of 31 applicants, five were selected to be interviewed. Petitioner was not selected for an interview.

25. Dennis Valente, chief investigator of the Division of Driver Licenses, conducted the screening for position 2986.

    Mr. Valente testified that, after an initial screening to make sure the candidates met the bare minimum qualifications for the job, he then conducted a detailed screening to ascertain the candidates' education, experience, and special knowledge, skills and abilities. After the detailed screening was completed,

    Mr. Valente set a cut-off score to ensure that five to seven candidates were interviewed. Mr. Valente did not know Petitioner and was not aware that Petitioner had filed a complaint against the Department.8

26. For position 2986, the cut-off score was established as 88 out of a possible 100 points and five candidates were interviewed. Petitioner's score on the detailed screening was

    72 points.

    
    

27. Mr. Valente recalled that Petitioner received maximum scores for four out of five of the "experience" factors on the detailed screening, but that he received no points for education. Petitioner is a high school graduate and points were

    available only for post-secondary education.9 The successful applicant for position 2986, Clark Brookstone, had a master's degree in mass communication, in addition to his bachelor's and associate of arts degrees.

28. Petitioner next applied for position 903481, an operations and management consultant position in Hillsborough County for the Division of Driver Licenses' Bureau of Administrative Reviews. The application deadline was July 6, 2004. Out of 66 applicants, seven were selected for interviews. Petitioner was not selected for an interview.

29. Danny Watford, chief of the Bureau of Administrative Reviews, performed the screening, then conducted the interviews for position 903481 with Deborah Todd. Mr. Watford testified that he performed no initial screening, and that every candidate received a detailed screening. At the time of the screening, Mr. Watford did not know that Petitioner had filed a complaint of discrimination. Mr. Watford set the cut-off for obtaining an interview at 40 points. Petitioner received 24 points on his detailed screening.

30. Mr. Watford testified that Petitioner was minimally qualified for the job, but that the job opportunity announcement stated a preference for a candidate with a bachelor's degree. The successful candidate, Gordon Brown, had a bachelor of

    science degree from California State University at Fullerton. As noted above, Petitioner is a high school graduate.

31. At the final hearing, Petitioner listed eight other positions for which he applied and was not offered the job. These positions were not applied for or filled within the time frame pertinent to this proceeding.

32. Petitioner conceded that there was no direct evidence of discriminatory or retaliatory intent on the part of the Department employees who conducted these employment screenings and interviews. In fact, those Department employees who were familiar with Petitioner spoke highly of his work. Charles Gowan, Bureau Chief of Field Operations, testified that Petitioner has done a good job as an employee in his bureau.10

    On August 8, 2003, Mr. Gowan awarded Petitioner with a letter of commendation for Petitioner's work as temporary office manager for the Lakeland driver license office.

33. Patricia Connery, a senior highway safety specialist with the Department, testified that Petitioner had done a good job as her supervisor in 1994.

34. Ms. Connery also testified that she obtained her current position through a telephone interview, without going through a formal application and interview process. Petitioner contends that this incident, coupled with the unexplained method used to break the tie between Petitioner and Mr. Shaffer for

    position 5350, and the alleged subjectivity of the interview process, demonstrates that the Department's selection process is a sham designed to allow the Department's administrators to hire whom they please without regard to the candidates' merits. In this instance, Petitioner alleges, the sham process was employed to retaliate against him for having brought a discrimination complaint and lawsuit against the Department.

35. The evidence established that there were minor variations among the Department's offices as to the precise methodology employed in the hiring process. However, the evidence also established that the process was internally consistent, i.e., any local variations in the process were uniformly applied to all applicants for a given position.

    Ms. Connery's internal promotion by means of a telephone interview was an aberration and was unrelated to any position for which Petitioner was a candidate.

36. Petitioner contends that someone in the Department's central office in Tallahassee was the real decision maker for these positions, and in each case insured that Petitioner was not the successful applicant. The evidence did not support this contention. In each instance, the hiring decision was made by the senior employee on the interview committee at the district level. While it is true that those decisions were submitted to

    Tallahassee for ratification, in no instance was the district-level decision overturned.

37. Petitioner did not establish that any of the interview panel members or candidate screeners was aware of his discrimination complaint or lawsuit at the time their respective decisions were made. Mr. Gowan was aware of Petitioner's lawsuit at the time of the interviews for position 2986, but Petitioner was not interviewed for that position.

38. The greater weight of the evidence establishes that, while Petitioner was at least minimally qualified for the positions in question, Petitioner's lack of a college degree and his indifferent interview skills were the chief reasons for his failure to obtain any of the positions for which he was interviewed.

39. The greater weight of the evidence establishes that the Department personnel conducting detailed screening of applicants considered only Petitioner's application and accompanying materials submitted by Petitioner in determining whether, or not Petitioner should be interviewed. Petitioner's applications were treated no differently than the applications of other candidates.

    CONCLUSIONS OF LAW

    
    

40. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

41. The Florida Civil Rights Act of 1992 (the Florida Civil Rights Act or the Act), Chapter 760, Florida Statutes, prohibits discrimination in the workplace. Subsection 760.11(1), Florida Statutes, provides that any person aggrieved by a violation of the Act must file a complaint within 365 days of the alleged violation.

42. Subsection 760.10(7), Florida Statutes, states the following:

    It is an unlawful employment practice for an employer, an employment agency, a joint labor-management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

    
    

43. Respondent is an "employer" as defined in Subsection 760.02(7), Florida Statutes, which provides the following:

    (7) "Employer" means any person[11] employing

    15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.

44. Florida courts have determined that federal case law applies to claims arising under the Florida's Civil Rights Act, and as such, the United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), applies to claims arising under Section 760.10, Florida Statutes. See Paraohao v. Bankers Club, Inc., 225 F. Supp. 2d 1353, 1361 (S.D. Fla. 2002); Florida State University v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

45. Under the McDonnell analysis, in employment discrimination cases, Petitioner has the burden of establishing by a preponderance of evidence a prima facie case of unlawful discrimination. If the prima facie case is established, the burden shifts to the Department, as the employer, to rebut this preliminary showing by producing evidence that the adverse action was taken for some legitimate, non-discriminatory reason. If the employer rebuts the prima facie case, the burden shifts back to Petitioner to show by a preponderance of evidence that Respondent's offered reasons for its adverse employment decision were pretextual. See Texas Department of Community Affairs v.

    Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

46. In order to prove a prima facie case of retaliation under Chapter 760, Florida Statutes, Petitioner must establish that: (1) he engaged in statutorily protected activity; (2) an adverse employment action occurred; and (3) the adverse action was causally related to Petitioner's protected activity. See Gupta v. Florida Board of Regents, 212 F.3d 571, 587 (11th Cir. 2000); Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1196 (11th Cir. 1997); Russell v. KSL Hotel Corporation, 887 So. 2d 372, 379 (Fla. 3d DCA 2004).

47. Petitioner has failed to prove a prima facie case of retaliation. To establish such a case, Petitioner needed to prove that the decision makers were actually aware of his statutorily protected activity (in this case, his filing of a discrimination complaint and lawsuit) at the time they decided not to promote him. Clover v. Total System Services, Inc., 176 F.3d 1346, 1354 (11th Cir. 1999); Raney, 120 F.3d at 1197; Gaston v. Home Depot USA, Inc., 129 F. Supp. 2d 1355, 1376 (S.D. Fla. 2001).

48. Petitioner presented no evidence that any of the interview panel members, or application screeners were aware of his protected activity at the time that the decisions were made not to select Petitioner for the positions he sought. Of the Department employees involved in the hiring process who testified, only Mr. Gowan had knowledge of Petitioner's

    discrimination complaint and lawsuit. However, Mr. Gowan was not involved in the decision to screen out Petitioner for position 2986.

49. Case law provides that an employer's knowledge of the protected activity may be established by circumstantial evidence. Clover, 176 F.3d at 1354; Goldsmith v. City of

Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). In this case, Petitioner asserts that the sheer number of his failed applications established that the decision makers must have been acting at the direction of the central office in Tallahassee, which clearly had knowledge of Petitioner's protected activities. However, this conspiracy theory is unsupported by the evidence, all of which points to the simpler explanation that Petitioner lost in an honest, competitive process to better

qualified candidates.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Highway Safety and Motor Vehicles did not commit any unlawful employment practice and dismissing the Petition for Relief.

DONE AND ENTERED this 10th day of October, 2006, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 10th day of October, 2006.

ENDNOTES

1/ Citations, hereinafter, shall be to Florida Statutes (2004) unless otherwise specified.

2/ The Order erroneously referenced the date that Petitioner signed the Amended Employment Charge of Discrimination (October 25, 2004) rather than the date of its filing (October

26, 2004). The one-day difference had no impact in terms of the affirmative relief available to Petitioner.

3/ The ASG for position 5350 indicated that the interviews were conducted by Clyde Schmitz and Eric Marlan, both field supervisors. However, at the hearing Mr. Schmitz testified that he and Mr. Marlan conducted the screenings, but that regional administrator Richard Roth took over the process for the interviews. Mr. Roth, now retired, confirmed that he conducted the interviews but stated that he had no clear memory of them because he was concurrently in the process of interviewing candidates to succeed him upon his retirement.

4/ Mr. Shaffer held position 5350 until August 2004, when he was promoted to field supervisor. Position 5350 was then filled by Thomas Thayer, who had been the second highest scorer in the

interview process for position 2333 in June 2004, which will be discussed below.

5/ This position, operations analyst II, is also referred to as management analyst level 3.

6/ At the hearing, Ms. Todd testified that an error in calculation made Petitioner's score appear much lower than the scores awarded to the other four interviewees. As corrected, Petitioner's score was still fifth best, but was more in line with the scores of the other candidates.

7/ The job announcement stated that the job could be located in Orange or Hillsborough County.

8/ Bureau Chief Charles Gowan, who conducted the final interviews with Mr. Valente, was aware that Petitioner had filed a lawsuit against the Department. See footnote 10, infra.

However, Mr. Gowan had no involvement in the screening process for position 2986 and made no mention of Petitioner's lawsuit during the selection process.

9/ The maximum possible raw score for the detailed screening was 25 points. The raw score was multiplied by four to arrive at a final score on the detailed screening. The maximum raw score for education for position 2986 was four points: two for a bachelor's degree, one for an associate's degree, and one for special training such as law enforcement. If Petitioner had been able to score the maximum for education, he would have totaled 88 points (four raw points, multiplied by four to make 16, added to Petitioner's score of 72) and qualified for an interview.

10/ Mr. Gowan testified that he learned of Petitioner's complaint and lawsuit only when Petitioner volunteered the information at their first meeting, when Mr. Gowan had just taken over as bureau chief and was visiting Petitioner's office. Mr. Gowan recalled this incident because he found it unusual that Petitioner, an employee he had just met, would say, "I have a lawsuit against the Department," suddenly and outside the context of anything said previously.

11/ "Person" includes "any governmental entity or agency."

§ 760.02(6), Fla. Stat.

COPIES FURNISHED:

Robert H. Grizzard, II, Esquire Robert H. Grizzard, II, P.A. Post Office Box 992

Lakeland, Florida 33802-0992

Carol A. Field, Esquire Valerie J. Martin, Esquire Office of the Attorney General

110 Southeast 6th Street, 10th Floor Fort Lauderdale, Florida 33301

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

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: 05-002022

Orders for Case No: 05-002022