00-004168 Charity Rittman vs. The Quincy State Bank Status: Closed Recommended Order on Monday, January 22, 2001.

Summary: Although Petitioner presents element of a prima facie case, Respondent authenticated several legitimate reasons for its decision which Petitioner did not show were pretextual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARITY RITTMAN, )

)

Petitioner, )

)

vs. ) Case No. 00-4168

)

THE QUINCY STATE BANK, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Stephen F. Dean, held a formal hearing in the above-styled case

on December 4, 2000, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charity Rittman, pro se

39 Rittman Lane

Route 4, Box 1015

Quincy, Florida 32351

For Respondent: Michael P. Bist, Esquire

Gardner, Shelfer, Duggar & Bist

1300 Thomaswood Drive

Tallahassee, Florida 32312-2914

STATEMENT OF THE ISSUE

Whether Petitioner was discriminated against because of her

age and her race.

PRELIMINARY STATEMENT

Petitioner filed a complaint with the Florida Commission on

Human Relations on May 22, 1998. The Commission conducted an

investigation determined there was no cause, and gave Petitioner

notice of its determination and her right to a hearing.

Petitioner asked for a final hearing and the case was forwarded

to the Division of Administrative Hearings. The case was

noticed for hearing on December 4, 2000, by a notice dated

October 18, 2000. The case was heard as noticed.

Petitioner testified in her own behalf and introduced

Petitioner's Exhibits 1, 2, and 3. The witnesses for Respondent

were Linda Ongley, Vice President and Director of Human

Resources of Respondent; and Sharonda Rogers, a former employee

of Respondent. Respondent introduced Respondent's Exhibits 1-6.

Petitioner and Respondent both filed post-hearing pleadings

which were read and considered.

FINDINGS OF FACT

1. On or about May 22, 1998, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations.

The essence of this Charge was the allegation that Respondent

discriminated against Petitioner because of her age (48) and

race (black). Petitioner claimed that younger whites were

employed in a position for which she had applied. (The Charge

of Discrimination was FCHR No. 98-1932.)

2. Respondent filed its response to the allegations on

July 22, 1998, and denied the allegations. Respondent filed a

Statement of the Company's Position, Affidavits and supporting

documents.

3. The Florida Commission on Human Relations conducted an

investigation, including a request for additional documentation

to Respondent, and on September 5, 2000, issued a Notice of

Determination: No Cause. The Commission found that there was

"no reasonable cause to believe that an unlawful employment

practice has occurred."

4. In response to the Commission's notice, Petitioner

filed a Petition for Relief on September 26, 2000. She claimed

"the people hired during the time I applied had no banking

experience. They were all young and white." Respondent filed

its Answer on October 13, 2000, and denied the allegations

asserting that as of August 1, 1997, Respondent employed two (2)

individuals in the proof department: One (1) minority and one

(1) employee over the age of forty (40). Further, Respondent

stated it had twenty-one (21) employees in the teller department

of which nine (9) were minorities and ten (10) were employees

over the age of forty (40).

5. Petitioner is an African-American female who was

approximately forty-eight (48) years old at the time that she

applied for a position with Respondent.

6. In her application for employment, Petitioner indicated

that she had not been employed since August of 1985 and had no

computer training. There were seventeen (17) applicants for the

positions. All the applicants, except Petitioner and one other

applicant, indicated they had computer training. All of the

applicants had recent employment experience.

7. The advertisements for the position indicated that they

were for a part-time teller position and a part-time proof

operator position. The proof operator enters up to thirteen

thousand (13,000) transactions a day. The teller position

requires sales skills, and the bank was moving into a Windows 95

computer system. Applicants with prior computer training and

experience were considered over those without this experience by

the Director of Human Resources, Linda Ongley.

8. Linda Ongley has been the Director of Human Resources

for Respondent for the past seventeen (17) years. She is the

person who was responsible for reviewing the applications,

interviewing, and hiring. She made the decision not to offer

employment to Petitioner. She did not believe Petitioner had

the necessary computer skills and sales skills for the teller

job, and did not appear to be prepared for the high stress and

pace expected of the proof operator position. Based upon her

interview of Petitioner, Ms. Ongley did not believe Petitioner

had a strong work ethic. Petitioner had no references; and had

not worked in the twelve (12) preceding years.

9. While the job postings did specifically state that they

were part-time, the teller position did not list "computer

skills" as a requirement of the job. Ms. Ongley testified

regarding this. Ms. Ongley had run the standard advertisement

that she had run in the past because she only had recently

received information regarding the conversion to the computer

system. The teller advertisement did not state that "excellent

communication and interpersonal skills" were required of

applicants.

10. The applications indicate that essentially all of the

applicants were substantially younger than Petitioner.

11. Of those persons hired by Respondent for these

positions, the individuals hired for the teller position

included one (1) African American; one (1) white; and one (1)

West Indian. All three (3) of these individuals had computer

training. The individual hired for the proof operator position

did not have computer training (this position did not utilize a

computer, but the person hired had excellent references,

including a reference from a large customer of the bank). The

Superintendent of Schools of Gadsden County came into the bank

and personally recommended hiring her.

12. The records of Respondent and the testimony of

Ms. Ongley indicate that at the time Petitioner made application

for employment, one (1) employee in the proof department was a

minority and one (1) was over the age of forty (40). Further,

of the twenty-one (21) tellers, there were nine (9) minorities

and ten (10) employees over the age of forty (40). All of these

employees had been hired by Ms. Ongley.

13. Ms. Ongley's decision on filling all positions was

based on neither age nor race.

14. Sharonda Rogers also testified. Ms. Rogers was a

former employee of Respondent, who was hired as a part-time

teller pursuant to this application process. Ms. Rogers is an

African American. Ms. Rogers testified that she had not

experienced any racial discrimination, nor observed any age

discrimination during her thirteen (13) months of employment

with Respondent. She left her position with Respondent to take

another job elsewhere.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this hearing

pursuant to Section 120.57(1), Florida Statutes.

16. Petitioner has the burden of proof in this case to

show that she was discriminated against on the basis of age and

race. To establish a prima facie case of unlawful

discrimination, Petitioner must show that (1) she is a member of

a protected class; (2) who was qualified for a new position;

(3) who suffered an adverse employment action; and (4) under

circumstances giving rise to an inference of discrimination.

See McDonnell Douglas v. Green , 411 U.S. 792 93 S.Ct. 1817

(1973); St. Mary's Honor Center v. Hicks , 509 U.S. 502, 113

S.Ct. 2742 (1993). In the case at bar, it is clear that

Petitioner was a member of a protected class (African-American)

and that she suffered an adverse employment action. She was

qualified for Respondent's teller position as it existed at the

time of application, and she was qualified for the proof

operator position.

17. Respondent articulated several legitimate non-

discriminatory reasons for its action. McDonnell , supra and

St. Mary's , supra. In other words, after a prima facie case is

established, if the employer produces evidence of a legitimate

non-discriminatory reason for its actions, the prior presumption

of discrimination is rebutted and eliminated. See McDonnell ,

supra.

18. The legitimate interest of the employer in having

competent employees who are already trained in areas in which

the business is moving and who have references from important

customers of the business, establishes the primary reason for

the hiring of the applicants in this case. Jones v. Besmer

Carraway Medical Center , 137 F.3rd 1306, rehearing 151 F.3rd

1321, rehearing 162 F.3rd 1179 (11th Cir. 1998).

19. Respondent has established a legitimate business

reason for the hiring of the four individuals. Ms. Ongley's

decision was reasonable in light of her interview with

Petitioner, Petitioner's lack of references, and Petitioner's

lack of work experience in the preceding 12 years.

20. These all are legitimate reasons why Respondent did

not hire Petitioner from among the chosen applicants.

Petitioner presented no evidence to show that Respondent's

actions were pretextural.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter its final order dismissing the case.

DONE AND ENTERED this 22nd day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of January, 2001.

COPIES FURNISHED:

Charity Rittman

39 Rittman Lane

Route 4, Box 1015

Quincy, Florida 32351

Michael P. Bist, Esquire

Gardner, Shelfer, Duggar & Bist

1300 Thomaswood Drive

Tallahassee, Florida 32312-2914

Azizi Coleman, Acting Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

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.