vs.
Case No. 18-3639
Respondent.
An administrative hearing was conducted in this case on September 5, 2018, in Ocala, Florida, before James H. Peterson III, Administrative Law Judge with the Division of Administrative Hearings (DOAH).
For Respondent: Patrick G. Gilligan, Esquire
Gilligan, Gooding, Franjola & Batsel, P.A.
Whether the City of Ocala (the City or Respondent), violated the Florida Civil Rights Act of 1992, sections 760.01- 760.11, Florida Statutes,1/ by discriminating against Nyleah Jackson (Petitioner) because of her race.
Petitioner filed an Employment Complaint of Discrimination dated October 2, 2017, with the Florida Commission on Human Relations (the Commission or FCHR), which was assigned FCHR No. 2017-02745 (Complaint).
The Complaint alleged that the City discriminated against Petitioner based on her race by failing to hire her for an Administrative Specialist III position, and instead selecting “a Caucasian female with less education, seniority, and applicable/related job experience [.]” The Commission began investigating the Complaint but did not complete its review and determination within 180 days from the initial filing.
On May 7, 2018, in response to Petitioner’s inquiry about the status of the Commission’s review of her Complaint, the Commission sent Petitioner a letter informing her that review of her case had exceeded 180 days from the initial filing and, in an attached Election of Rights form, notified Petitioner of her rights. Thereafter, Petitioner timely notified the Commission that she wished to proceed with an administrative hearing and, on July 16, 2018, filed a Petition for Relief with the Commission.
The Commission referred the matter to DOAH for an administrative hearing pursuant to chapter 120, Florida Statutes.
The matter was originally assigned to Administrative Law Judge Suzanne Van Wyk. Subsequently, the case was transferred
to the undersigned for all further proceedings, and the administrative hearing was held as scheduled on September 5, 2018, at Respondent’s City Hall Council Chamber in Ocala, Florida.
At the hearing, Petitioner testified on her own behalf, called no other witnesses, and offered seven exhibits, which were received into evidence as Exhibits P-4 through P-10. The City called three witnesses and offered 19 exhibits, which were received into evidence as Exhibits R-1 through R-19, including the City’s Exhibit R-5, which contains 11 sub-exhibits identified by consecutive Roman numerals.
The proceedings were recorded and a transcript was ordered. The parties were given 30 days from the filing of the transcript to submit their proposed recommended orders. The one-volume Transcript of the hearing was filed on September 19, 2018.
Thereafter, the parties timely filed their respective proposed recommended orders, which have been considered in the preparation of this Recommended Order.
On May 2, 2016, Petitioner, who is an African-American female, was hired by the City as an Administrative Specialist II in its Electric Utility Department. On October 10, 2016, Petitioner moved to a lateral Administrative Specialist II position with the City’s Public Works Department to perform
generally the same type of duties in that department’s sanitation division.
An Administrative Specialist II is expected to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll.
As an Administrative Specialist II, Petitioner received mostly satisfactory, although never exceptional, ratings in her performance evaluation reviews in both the City’s Electric and Public Works Departments. In each of Petitioner’s performance evaluation reviews, her rater or supervisor was tasked with assigning a 1, 2, or 3 rating for each of 10 different tasks, examples of which include “Quality of Work,” “Efficiency,” “Responsibility,” and “Customer Focus.” A rating of 1 means that the employee performed a task below the standard. A rating of
means that the employee meets task requirements. A rating of
means the employee exceeds standards.
Petitioner received a rating of 2 (Meets Standard) for every task on every review produced by the City, except for her April 19, 2017, evaluation on which Petitioner received a 1 in the category of “Responsibility” due to alleged problems related to tardiness and failure to properly notify her supervisors of absences.
During January 2017, an Administrative Specialist III position became available within the City’s sanitation division because the person previously filling that position moved into another position. In accordance with the City’s hiring process governed by its City Employee Handbook, the City’s Human Resources Department (HR) reviewed the vacant Administrative Specialist III position, confirmed that it was budgeted and set to be filled, and evaluated whether it was governed by any collective bargaining agreements. Upon determining that the position was governed by the City’s collective bargaining agreement with the International Brotherhood of Electrical Workers, on January 13, 2017, the City posted the job internally for five days to allow existing City employees to apply for the position before allowing external applications.
Similar to the Administrative Specialist II position, the City’s Administrative Specialist III position is required to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. An Administrative Specialist III, however, has expanded duties and responsibilities.
While all administrative specialists throughout the City perform similar tasks, each division in the City may have a different distribution of duties for its employees due to the kind of work required for that division’s services. These
differences would not be reflected in the listing for an open Administrative Specialist III position. Such listings were drafted by an outside consultant to generally describe the Administrative Specialist III position for all departments throughout the City.
For the sanitation division, the Administrative Specialist III position has a substantial customer service component. Specifically, the Administrative Specialist III position in the sanitation division is required to answer a large volume of phone calls from angry citizens for various sanitation complaints. For that reason, the hiring managers placed importance on the applicants’ people skills, patience, and ability to maintain a calm, customer-friendly demeanor when dealing with angry citizens.
Petitioner testified that the director of the City’s Public Works Department, Darren Park, suggested that she apply for the open Administrative Specialist III position due to
Mr. Park’s belief that she had performed well in a previous interview. Therefore, Petitioner explained, on January 23, 2017, she applied for the City’s vacant Administrative Specialist III position in the sanitation division.
In accordance with City policy, HR reviewed all of the internal applications for the position to preliminarily screen applicants who did not meet the minimal qualifications.
Petitioner’s application and three other internal candidates’ applications were found to have met the minimal qualifications and were forwarded to the department’s hiring managers for interviews.
Of the four internal applicants forwarded by HR to the hiring managers, the only other minority applicant was a Hispanic male.
Shortly after the internal applications were submitted, the two hiring managers, Dwayne Drake and Cloretha McReynolds, reviewed the applications and interviewed the City’s internal applicants. Dwayne Drake, a Caucasian male, was the division head of sanitation. Cloretha McReynolds, an African-American female, was a supervisor in the sanitation division. A few days after the City received Petitioner’s application, Mr. Drake and Ms. McReynolds interviewed Petitioner for the open position.
During Petitioner’s interview, as well as in all of the other interviews for the position, the hiring managers used a list of prepared questions, entitled “Sanitation Administrative Specialist III Behavioral Interview Questions.” The questions were designed to allow the hiring managers to evaluate the strengths and weaknesses of an applicant’s personality traits, people skills, and behavioral characteristics.
During her interview for the position, Petitioner admitted that one of her weaknesses was that her assertiveness
could sometimes be mistaken for aggressiveness. This comment by Petitioner concerned Mr. Drake because the sanitation division has many callers already upset when they call. Mr. Drake felt that Petitioner’s comment was a “big hurdle” that Petitioner would have to overcome in order to be selected for the Administrative Specialist III position.
Similarly, Ms. McReynolds testified that Petitioner’s response that her assertiveness could be misinterpreted as aggressiveness concerned her because “we were looking for a specific – we were looking for someone with a great personality.” When further pressed by Petitioner why customer service was valued so highly for the Administrative
Specialist III position, Ms. McReynolds testified:
Q. Okay. Are there different weights that you hold for one question than the other? For example, someone said they don’t have experience in payroll, but they also said that they are very well with handling customers, is there a system for you that you say: “Hey, well, this is more important than the other one? This one holds more weight than the other one”?
A. Anyone can be taught to do payroll.
Q. Right.
A. Anyone can’t be taught to be respectful on the phone and customer friendly. I can teach someone how to do payroll, I can teach someone to do billing. I can teach someone how to do that position, but I can’t teach someone to be nice to the customers.
And I needed a nice person, a person who is going to be able to, when they get yelled
at, better keep calm and deal with it, calm the customer down. And that’s what I was looking for.
After the internal interviews, and as provided for by the City Employee Handbook and its collective bargaining agreements, the hiring managers decided to list the available Administrative Specialist III position externally.
Petitioner testified that, following her interview, Mr. Drake came to her office and told her that the hiring managers were looking for a “better fit” for the vacant Administrative Specialist III position and that the City would advertise the position externally. Petitioner testified that, based on this statement, she inferred that the hiring managers had already determined that the City would not hire any of the internal applicants for the vacant Administrative Specialist III position because they had already determined that none of the internal applicants were qualified.
In his testimony, Mr. Drake confirmed that he spoke with Petitioner following her interview, but denied that he told Petitioner, or any other City employee applicant, that they were already disqualified. Instead, Mr. Drake explained that, following the internal applicant interviews, he spoke to Petitioner because she was a Public Works employee and he wanted to tell her in person that they were going to look for external applicants. Mr. Drake’s testimony is credited.
After the open Administrative Specialist III position was listed externally, three external applications were forwarded to the hiring managers, who interviewed those candidates consistent with City policy, using the same prepared questions as used in the internal interviews.
After completing the external interviews, the managers both decided Jenna Hylkema, a Caucasian female and external applicant, to be the best applicant, and she was hired for the position. Ms. Hylkema had a high school diploma, a bachelor degree in criminal justice and had previously worked for the City as a dispatcher for the Ocala Police Department. At the time she was hired for the Administrative Specialist III position, Ms. Hylkema was working at the Department of Children and Families investigating child abuse cases and related issues.
Both of the hiring managers agreed that Ms. Hylkema’s employment history and performance in her interview made her the strongest candidate for the vacant Administrative Specialist III position. Notably, Ms. McReynolds testified that Ms. Hylkema “was a call – a 911 call person [at the police department], and she was able to deal with - I thought she would be better to deal with the stress level, as far as – and also her personality in accepting calls.”
Both Mr. Drake and Ms. McReynolds confirmed that their ranking preference was informal and not reduced to writing, but
that, after all of the interviews, they discussed each of their orders of preference out of the seven applicants. According to both hiring managers, Petitioner ranked third or fourth of the seven applicants. Although they believed Petitioner was qualified, the hiring managers thought that Jenna Hylkema’s work experience and performance in her interview made her the most qualified applicant for the position.
Also notable, Ms. Hylkema performed better on the objective components of the interview process. Petitioner herself confirmed that Ms. Hylkema performed better than she had in the objective portions of the interview, including scoring twice as high in an objective typing speed test.
Both hiring managers credibly testified that neither Petitioner’s race, Jenna Hylkema’s race, nor anyone else’s race influenced their decision to hire Ms. Hylkema for the vacant Administrative Specialist III position.
A few months after Ms. Hylkema was hired for the vacant Administrative Specialist III position, another Administrative Specialist III position opened in the Public Works Street Division, which was filled by Erica Wilson, an African-American woman who, like Petitioner, was working as an Administrative Specialist II when she applied. Petitioner did not apply for this position.
Petitioner confirmed this, but failed to provide any explanation as to why the City’s policies discriminated against her, as an African-American woman, but apparently did not discriminate against Erica Wilson in their decision to hire her for another open Administrative Specialist III only a few months later. When asked why she did not apply for the other Administrative Specialist III position, Petitioner testified that she wanted the Administrative Specialist III position in the sanitation division.
Despite evidence indicating that there was no illegal discrimination in the City’s process of filling the position for which Petitioner had applied, Petitioner alleged that there were irregularities in the selection process. For example, Petitioner contends that Ms. Hylkema was not qualified because Ms. Hylkema held a criminal justice degree that did not include advanced business or secretarial classes in college. The evidence, however, demonstrated that the City’s hiring process was flexible enough to allow certain criteria to be waived in favor of other experience, and that all applicants who were interviewed met the minimal qualifications for the position.
Petitioner also alleged improprieties in the hiring process on the grounds that the City’s hiring managers did not use a formal numerical scoring in their evaluations and failed to keep complete notes during their interviews to confirm that
each question was asked to every candidate. The City’s hiring process for vacant positions, however, does not require any specific numerical scoring system or prescribed notation process. Rather, the evidence demonstrated that the hiring managers appropriately weighed their impressions of the candidates through their interviews and the other materials provided to determine who would be best to respond to angry phone calls that the City’s sanitation department would receive.
Throughout that process, and with no evidence of illegal discrimination, the managers appropriately ranked Petitioner as the third or fourth best candidate for the Administrative Specialist III position.
The evidence at the hearing did not reasonably suggest that the process used during the selection process was suspicious, vulnerable to arbitrariness, or indicative of illegal discrimination. When asked about the City’s interview procedure, Petitioner said that she had no objection to the City asking questions to discern whether or not, subjectively, the interviewers thought an applicant was a good fit for the job.
In sum, the evidence does not support a finding that Petitioner was not hired for the open position for which she applied because of her race, or that the City otherwise engaged in illegal discrimination.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter of this proceeding. See §§ 120.569, 120.57(1), and
760.11(4)(b), Fla. Stat.; see also Fla. Admin. Code R. 60Y- 4.016.
The State of Florida, under the legislative scheme contained in section 760.01 through 760.11, Florida Statutes, known as the Florida Civil Rights Act of 1992 (the Act), incorporates and adopts the legal principals and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e, et. seq.
The Florida law prohibiting unlawful employment practices is found in section 760.10 of the Act. The Act makes it an unlawful employment practice, among other things, 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, pregnancy, national origin, age, handicap, or marital status.
§ 760.10(1)(a), Fla. Stat.
The City is an “employer” within the meaning of the Act. See § 760.02(7), Fla. Stat. (“‘Employer’ means any person
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.”); see also § 760.02(7),
Fla. Stat. (“‘Person’ includes . . . any governmental entity or agency.”).
Florida courts have held that because the Act is patterned after Title VII of the Civil Rights Act of 1964, as amended, federal case law dealing with Title VII is applicable. See, e.g., Fla. Dep’t of Cmty. Aff. v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
As developed in federal cases, a prima facie case of discrimination under Title VII may be established by statistical proof of a pattern of discrimination, or on the basis of direct evidence which, if believed, would prove the existence of discrimination without inference or presumption. Often, however, direct evidence is lacking and one seeking to prove discrimination must rely on circumstantial evidence of discriminatory intent, using the shifting burden of proof pattern established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997).
In this case, Petitioner provided no statistical or direct evidence of discrimination but, instead, explicitly relied
on the McDonnell Douglas standard in her Complaint filed with the
Commission.
Under the shifting burden pattern developed in McDonnell Douglas:
[Petitioner] has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if [Petitioner] sufficiently establishes a prima facie case, the burden shifts to [Respondent] to “articulate some legitimate, non- discriminatory reason” for its action.
Third, if [Respondent] satisfies this burden, [Petitioner] has the opportunity to prove by a preponderance of the evidence that the legitimate reasons by [Respondent] are in fact mere pretext.
U.S. Dep’t of Housing & Urban Dev. v. Blackwell, 908 F.2d 864,
870 (11th Cir. 1990) (housing discrimination claim); accord, Valenzuela v. Globe Ground N. Am., LLC, 18 So. 3d 17, 22
(Fla. 3d DCA 2009) (gender discrimination claim) (“Under the McDonnell Douglas framework, a plaintiff must first establish,
by a preponderance of the evidence, a prima facie case of discrimination.”).
Accordingly, in order to prevail in her claim against the City, Petitioner must first establish a prima facie case by a preponderance of the evidence. In order to establish a prima facie case of failure-to-hire or failure-to-promote based upon discrimination, Petitioner must establish: “(1) she is a member of a protected class; (2) she was qualified for and applied for the position; (3) she was rejected despite her qualifications;
and (4) other equally or less qualified employees who were not members of the protected class were promoted.” Austin v.
Progressive RSC, Inc., 265 Fed. Appx. 836, 844 (11th Cir. 2008)
(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004)).
Petitioner failed to meet this initial burden by a preponderance of the evidence. Specifically, Petitioner failed to establish, and the evidence presented failed to show, that the employee who was ultimately hired for the position was “equally or less qualified” than she was.
Rather, the evidence provided at the hearing established that Ms. Hylkema, Petitioner, and the remainder of the candidates all met the minimum qualifications of the Administrative Specialist III position, and that Ms. Hylkema performed better than Petitioner in the objective measures involved in the application process.
Thus, having failed to meet her initial burden of showing that she was equally or more qualified to be an Administrative Specialist III than Ms. Hylkema, the person selected over her, Petitioner failed to present a prima facie case. When a petitioner fails to present a prima facie case, the inquiry ends and the case should be dismissed. Ratliff v. State, 666 So. 2d 1008, 1013 n.6 (Fla. 1st DCA 1996).
Even if Petitioner had met her burden of establishing a prima facie case, the City otherwise provided sufficiently legitimate, nondiscriminatory reasons for selecting Ms. Hylkema over Petitioner. The evidence demonstrated that its hiring managers considered it critical to find someone for the vacant Administrative Specialist III position that had strong customer service qualities and, more importantly, was adept in converting angry callers into satisfied ones. The evidence failed to show that the City’s use of this criteria, as an explanation of why Ms. Hylkema was hired instead of Petitioner, was merely pretextual for disguising another illegal discriminatory motive.
In proving that an employer’s asserted reason is merely a pretext:
A plaintiff is not allowed to recast an employer’s proffered nondiscriminatory reasons or substitute [her] business judgment for that of the employer. Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.
Chapman v. AI Transport, 229 F.3d 1012, 103 (11th Cir. 2000).
Therefore, even if Petitioner had made a prima facie case, she failed to show that the legitimate, nondiscriminatory reasons proffered by the City for its hiring decision were merely pretextual, and otherwise did not rebut the City’s explanation for that decision.
In sum, Petitioner failed to prove her case.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief consistent with the terms of this Recommended Order.
DONE AND ENTERED this 28th day of December, 2018, in Tallahassee, Leon County, Florida.
JAMES H. PETERSON, III
Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2018.
1/ Unless otherwise indicated, all references to the Florida Statutes, Florida Administrative Code, and federal laws are to the current versions which have not substantively changed since the time of the alleged discrimination.
Tammy S. Barton, Agency Clerk
Patrick G. Gilligan, Esquire
Gilligan, Gooding, Franjola & Batsel, P.A. 1531 Southeast 36th Avenue
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
