STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OMAR GARCIA, JR.,

Petitioner,

vs.

MIAMI-DADE COUNTY (HUMAN RESOURCES),

Respondent.

/

Case No. 20-3318

RECOMMENDED ORDER

On September 23, 2020, Administrative Law Judge Hetal Desai of the Division of Administrative Hearings (DOAH) conducted the final hearing in this matter by Zoom Web Conferencing.

APPEARANCES

For Petitioner: Omar Garcia, Jr., pro se

4670 Salamander Street Saint Cloud, Florida 34772

For Respondent: Marlon D. Moffett, Esquire

Miami-Dade County 27th Floor, Suite 2810 111 Northwest 1st Street Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue is whether Respondent, Miami-Dade County (County), discriminated on the basis of age in violation of the Florida Civil Rights Act (FCRA), when it did not hire Petitioner, Omar Garcia, Jr.

PRELIMINARY STATEMENT

On June 20, 2019, Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (FCHR) alleging the County committed a violation of the FCRA based on sex, national origin, and age discrimination pursuant to chapter 760, Florida Statutes (2019).1 In his Complaint, Petitioner claimed he had submitted 213 job applications to the County, was offered only two job interviews, and was not hired for any position.

On June 11, 2020, FCHR rendered a "Determination: No Reasonable Cause" against Petitioner, finding there was no reasonable cause to support his claims that he was not hired by the County based on his sex, age, and/or national origin. Thereafter, Petitioner filed a Petition for Relief on July 16, 2020, alleging the County refused to hire him based on his age. There was no claim of national origin or gender discrimination in the Petition for Relief.2

FCHR transmitted the Petition to DOAH, where it was assigned to the undersigned and noticed for a final hearing. At the hearing, Petitioner presented his own testimony and Petitioner's Exhibits P-A through P-F were admitted in evidence. The County offered the testimony of Sharon Smith Gardner and Virginia Washington; and Respondent's Exhibits R1 through R5 were admitted in evidence.

The Transcript was filed with DOAH on November 4, 2020. The County requested and was granted an extension to submit proposed recommended

1 Unless otherwise indicated, all statutory and administrative rule references are to the 2019 version of the Florida Statutes and Florida Administrative Code.

2 At the final hearing, Petitioner confirmed he was no longer pursuing gender or national origin discrimination claims.

orders on or before November 30, 2020. Both parties timely filed their Proposed Recommended Orders, which have been duly considered.

FINDINGS OF FACT

1. Petitioner is a 54-year-old male who submitted over 300 job applications to the County from May 2018 to August 2019.

2. The County is a political subdivision of the State of Florida. It has approximately 25,000 full time employees and 3,000 part time employees. The County is an "employer" as defined by section 760.02(7).

3. Between January 2018 and the date of the hearing, the County received over 820,000 applications for employment vacancies. Less than one percent of these applications resulted in an applicant being hired by the County. In other words, over 99 percent of the applications submitted to the County were rejected.

4. Although Petitioner's resume and employment applications were not entered in evidence, Petitioner testified he holds a business administration degree from California State Polytechnic University Pomona. He also had 27 years of experience as a federal law enforcement officer, including with the United States Department of Homeland Security (DHS). Petitioner resigned from DHS in lieu of termination after he was arrested on a domestic violence charge. That charge was eventually nolle prossed. He did not reveal to the County that he had resigned in lieu of termination from the DHS position, or that he had been arrested or charged with domestic violence. Again, because the applications were not in evidence it is unclear if Petitioner was required to disclose this information.

5. Prior to resigning from DHS, Petitioner began applying for positions with the County in May 2018. Petitioner was not discerning in selecting the positions for which he applied. He submitted applications for a wide assortment of occupations including administrative, clerical, financial, law enforcement, and human resource positions. The specific positions included,

   
   

   but were not limited to, the following: Account Clerk, Administrative Secretary, Airport Operations Specialist, Aviation Property Manager, Bus Stock Clerk, Contracts Officer, Corrections Officer, Finance Collection Specialist, Fleet Management Specialist, Library Assistant, Fire Investigator, Paralegal, Real Estate Advisor, Risk Management Representative, Tax Records Specialist, Storekeeper, Victim Specialist, and Water and Sewer Compliance Specialist.

6. Submitting an application is the initial step in the County's hiring process. Once the application is received, it is screened by a computer software system to determine whether the applicant meets the minimum eligibility requirements of the position. The County's Human Resources department forwards those applications deemed "eligible" to the County department hiring for the position.

7. The hiring department then reviews the applications sent by Human Resources to determine if the applicant is "Qualified." To be "Qualified," an applicant must meet the minimum eligibility requirements, and then specific qualifying criteria imposed by the hiring department. For example, for a secretarial position the County may receive 500 eligible applications for one position, but cannot interview all 500 applicants. To whittle down the applicants, the hiring department may have additional requirements such as a certain number of years of secretarial experience, or experience in specific professional areas.

8. The hiring department interviews those applicants with the best qualifications and/or most relevant experience. The unrebutted evidence established that an interview is required prior to selection for a position. Failure to attend an interview would ruin the applicant's chances to be hired.

   
   

9. Out of the approximately 300 applications Petitioner submitted for various positions, he met the minimum eligibility requirements for 96.3 Out of the 96 applications forwarded by Human Resources, Petitioner was deemed by the hiring departments to be "Qualified" for 60 positions, and deemed "Not Qualified" for 36 positions. Of the 60 for which he was deemed "Qualified," he was offered interviews for two positions in law enforcement. Of the two interviews he was offered, he only attended one.4

10. There was no evidence that anyone in the County's hiring process knew Petitioner's age. The County established that it does not ask for applicants to reveal their age on the County job application, nor is the age or date of birth transmitted to the hiring department.

11. There was also no evidence of the ages of the selected applicants who filled the specific positions for which Petitioner applied.5

    
    

    CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the parties and the subject matter of this cause pursuant to sections 120.569, 120.57(1), and 760.11(7), Florida Statutes. See Fla. Admin. Code R. 60Y-4.016.

13. The FCRA protects individuals from discrimination in the workplace. Section 760.10 states, in pertinent part:

    1. It is an unlawful employment practice for an employer:

       
       

       3 The remaining applications were rejected because (1) they were duplicates for the same vacancy; (2) they were incomplete because they were in a draft form or did not have the proper supporting documentation; or (3) they were for positions that were no longer available, or non-existent.

       
       

       4 Petitioner failed to attend the interview for a Corrections Officer position.

       
       

       5 Although the exact age of each hire is unknown, during the relevant time period, the County hired 7,000 new employees. Approximately 2,000 of the 7,000 new hires were over the age of 40. As discussed in the Conclusions of Law, the age of 40 is irrelevant to the age discrimination analysis under the FCRA.

       
       

       1. 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. (emphasis added).

          
          

14. Because the FCRA is patterned after the Age Discrimination in Employment Act (ADEA), Florida courts are guided by federal decisions construing the ADEA when considering claims under the FCRA. See Yaro v. Israel, 242 So. 3d 1140, 1141 (Fla. 4th DCA 2018) (applying federal case law interpreting the ADEA to age discrimination claim arising under the FCRA).

15. The burden of proof in an administrative proceeding is on Petitioner as the complainant. See Dep’t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996) ("The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.").

16. Petitioner may establish a claim of age discrimination through either direct evidence or circumstantial evidence. Hicks-Washington v. Hous. Auth. of City of Ft. Lauderdale, 803 F. App'x 295, 302 (11th Cir. 2020) (affirming summary judgement dismissal of plaintiff's age claim under the ADEA and FCRA); Thomas v. Seminole Elec. Coop. Inc., 775 F. App'x 651, 656 (11th Cir. 2019) (affirming dismissal of sex and age discriminatory discharge claims under federal statutes and the FCRA). At the hearing, Petitioner failed to present any statistical or direct evidence.6

17. Because there is no direct or statistical evidence of discrimination, Petitioner must establish his case through circumstantial proof following the

    
    

    6 Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent behind an employment decision without any inference or presumption. Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001); see also Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997). Courts have held that "only the most blatant remarks, whose intent could be nothing other than to discriminate … will constitute direct evidence of discrimination." Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358-59 (11th Cir. 1999)(citations omitted). Here, there was no evidence of any remarks made to Petitioner.

    
    

    framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). In this case, the

    framework involves a three-step process. First, Petitioner must establish a prima facie case of discrimination based on his age; if Petitioner does so, a presumption of discrimination arises against Respondent. If Petitioner completes step one, Respondent has the burden to present a legitimate, non- discriminatory reason for its employment actions; if Respondent can put forth such a reason, any presumption of discrimination evaporates. Finally, if Respondent can complete the second step, Petitioner has the burden of proving the reason established by Respondent was a pretext for discrimination. McDonnell Douglas Corp., 411 U.S. at 802; Scholz v. RDV Sports, Inc., 710 So. 2d 618, 624 (Fla. 5th DCA 1998) (evaluating race discrimination claim under FCRA).

18. These burdens must be met by a preponderance of the evidence. See St. Louis v. Fla. Int'l Univ., 60 So. 3d 455, 458-59 (Fla. 3d DCA 2011). "Preponderance of the evidence" is the "greater weight" of the evidence, or evidence that "more likely than not" tends to prove the fact at issue. This means that if the undersigned found the parties presented equally competent substantial evidence, then Petitioner would not have proved his claims by the "greater weight" of the evidence, and would not prevail. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000). Although these burdens of production shift back and forth, the ultimate burden of persuasion that the County intentionally discriminated against him because of his age remains at all times with Petitioner. See Byrd v. RT Foods, Inc., 948 So. 2d 921, 927 (Fla. 4th DCA 2007) (noting under the FCRA the ultimate burden of proving intentional discrimination remains with the plaintiff at all times).

19. To prevail on his age discrimination claim, Petitioner must prove by a preponderance of the evidence that: (1) he is a member of a protected class;

    (2) he was qualified for the position; (3) he was subjected to an adverse employment action; and (4) the County treated applicants of a different age

    
    

    more favorably than he was treated. Moreover, he must show that he suffered from an adverse employment action that would not have occurred "but for" his age. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180, 129 S. Ct. 2343,

    2352, 174 L. Ed. 2d 119 (2009); King v. HCA, 825 F. App'x 733, 736 (11th Cir.

    2020) ("For age and disability discrimination, the plaintiff must prove that his age or disability was a 'but-for' cause of the adverse employment action— meaning it had a 'determinative influence on the outcome' of the employer's decision").

20. Regarding the first element, contrary to Respondent's assertions in its Proposed Recommended Order, the FCRA differs from the ADEA in that the ADEA specifically protects employees aged 40 and older, and the FCRA does not set a minimum age for a protected class. FCHR has determined that the age "40" has no significance in determining whether age discrimination has occurred under the FCRA. See Ellis v. Am. Aluminum, Case No. 14-5355, (Fla. DOAH July 14, 2015) modified, (Fla. FCHR Sept. 17, 2015). Thus, whereas under the ADEA an employee must be 40 years old and the comparator must be significantly younger, under the FCRA a petitioner can simply show that similarly-situated individuals of a "different" age were treated more favorably. Thus, for the purposes of the FCRA, being any age satisfies the "protected class" requirement for age discrimination.

21. Petitioner was qualified for at least 60 positions. Arguably, Petitioner would not have ultimately been hired for County employment because of the circumstances related to his DHS resignation, the domestic violence arrest, or the nolle prosequi of that charge. There was, however, no evidence that the County Human Resources staff or individual hiring departments knew of this information, nor was there evidence that the resignation, arrest, or charge would deem him unqualified for the applied-for positions. As such, the undersigned assumes Petitioner has satisfied the second element requiring that he was qualified.

    
    

22. Regarding the third element, the failure of an employer to hire an applicant is considered an adverse employment action. To demonstrate a prima facie case in the "failure to hire" context, Petitioner must also establish: (1) he applied and was qualified for the position; (2) despite his qualifications, he was not selected; and (3) either the position was filled by a person outside the protected class, or the position remained open and the employer continued to seek applicants. Shannon v. Nat'l R.R. Passenger Corp., 774 F. App'x 529, 540 (11th Cir. 2019) (rejecting failure to hire claim in race discrimination case).

23. Petitioner failed to provide any evidence that the County based its decision to not hire him "because of" his age. There was no evidence the County knew his age. There was no evidence the County treated applicants of a different age more favorably than Petitioner was treated. There was no evidence that the 300 positions for which Petitioner applied (or the 60 positions for which he was deemed "qualified") were filled by applicants who were older or younger than him, or that these positions remained open. This lack of evidence is detrimental to his age discrimination case under the FCRA.

24. Because Petitioner did not meet his burden of proving a prima facie case of age discrimination by a preponderance of the evidence, the County's reasons for not hiring him and whether those reasons were pretexts need not be discussed. See Adams v. Holland, 2019 WL 4451454, at *6 (M.D. Fla. Sept. 17, 2019) (noting where plaintiff did not show he was replaced by a younger employee he could not establish a prima facie case under the ADEA; the Court did not need to address whether defendants had a non-discriminatory reason for his discharge, or whether such a reason was pretextual).

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 dismissing Omar Garcia's Petition for Relief.

DONE AND ENTERED this 7th day of December, 2020, in Tallahassee, Leon County, Florida.

S

HETAL DESAI

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 7th day of December, 2020.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399-7020 (eServed)

Marlon D. Moffett, Esquire Miami-Dade County

27th Floor, Suite 2810 111 Northwest 1st Street Miami, Florida 33128 (eServed)

Omar Garcia

4670 Salamander Street Saint Cloud, Florida 34772 (eServed)

Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399-7020 (eServed)

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: 20-003318

Orders for Case No: 20-003318