01-002078 Sylvester A. Holly, Jr. vs. Solutia, Inc. Status: Closed Recommended Order on Friday, November 30, 2001.

Summary: Petitioner failed to show that his lateral transfer to a position with the same title, responsibilities, and pay was a discharge, failure to hire or refusal to hire, thereby failing to show a discriminatory action by Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYLVESTER A. HOLLY, JR., )

)

Petitioner, )

)

vs. ) Case No. 01 - 2078

)

SOLUTIA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for final hearing before Stephen F.

Dean, Administrative Law Judge, Division of Administrative

Hearings, on October 23 and 24, 2001, in Pensacola, Florida.

APPEARANCES

For Petitioner: Sylvester A. Holly, Jr., pro se

Post Office Box 301

Cantonment, Florida 32533

For Respondent: Erick M. Drlicka, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Pensacola, Florida 32596

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner because

of his race or age w hen he was not selected as Lead Mechanic in

Area I KA/Nitric.

PRELIMINARY STATEMENT

Petitioner, Sylvester Holly (Petitioner), filed a Charge of

Discrimination against Respondent, Solutia, Inc. (Respondent),

alleging that Respondent discriminated against h im because of

his race and age when he was not selected for the Lead Mechanic

position in Area I KA/Nitric.

Petitioner filed an Amended Charge of Discrimination on

January 5, 2000. Respondent filed an answer on March 23, 2000.

The allegation of discrimi nation was being investigated by the

Florida Commission on Human Relations. However, on March 22,

2001, Petitioner filed an Election of rights stating more than

180 days had elapsed since he filed his Charge of Discrimination

and that he wished to withdra w his charge and file a Petition

for Relief to proceed with an administrative hearing pursuant to

Sections 760.11(4)(b) and (8), Florida Statutes.

A final hearing was held on October 23 and 24, 2001.

Petitioner presented the oral testimony of Wayne Black wood and

Terry Wilcox, as well as his own testimony. Petitioner also

introduced into evidence the job posting for Area I Lead

Mechanic, Terry Wilcox' panel interview form, and Area I - Lead

Mechanic Panel Interview of all interviewers. Respondent

present ed the oral testimony of Nikki Owens, Mike Conley and

Lerissa Rowe. Respondent also introduced into evidence

Petitioner's Charge of Discrimination, Petitioner's Self

Nomination Form for Area I Lead Mechanic position, the Panel

Interview Forms for the Area I Lead Mechanic position, a summary

of the feedback given to the applicants for the Area I Lead

Mechanic position, individual feedback forms, and a form

reflecting recalculated scores of the applicants for the Area I

Lead Mechanic position. Both parties submitted proposed

recommended orders which were read and considered.

FINDINGS OF FACT

1. Petitioner is a black male who was over 40 at the time

he applied for the Area I (One) Lead Mechanic position.

2. At the time Petitioner applied for the Area I Lead

Mechanic position, he was a lead mechanic in the Central

Maintenance Compressor and Gear Box shop, pay grade level 28

position.

3. Pay grade level 28 is the highest nonexempt pay grade

at Solutia, Inc.

4. On January 25, 1999, Solutia posted a job opening for a

lead mechanic position in Area I KA/Nitric, a pay grade level 28

position.

5. Petitioner applied for the Area I Lead Mechanic

position.

6. Had Petitioner been selected for the Area I Lead

Mechanic position, it would have been a lateral tr ansfer and not

a promotion because Petitioner was already at a level 28 pay

grade. No evidence was received that the incumbent of the Area

I Lead Mechanic position would have had more authority or

promotion opportunities than the position previously held.

7. Petitioner, along with three other mechanics,

interviewed for the Area I Lead Mechanic position. The other

three applicants were: William G. Cook (a white male);

Joseph S. Mann (a white male); and David Wolfe (a white male).

Petitioner admits that all the applicants were qualified for the

Area I Lead Mechanic position.

8. Respondent used a ranking procedure to evaluate the

applicants for the Area I Lead Mechanic position. The

applicants were ranked by subjectively grading their answers to

qu estions in five areas: 1) problem - solving and decision - making

ability; 2) teamwork and coaching ability; (3) communication

ability; (4) honoring differences; and (5) results orientation

and initiative. The applicants were given a score from one to

five b y each panel member based upon the panel members'

subjective assessment of applicants’ answers on each of the five

criteria. Five was the highest grade and one being the lowest.

The points were totaled and converted into a percentage score.

The applican t having the highest overall score was selected to

fill the job.

9. The applicants were interviewed by a panel composed of

six employees: Nikki Owens; Mike Conley; Darren Dobson; Tony

Williams (a black male); Terry Wilcox (who was over 40 at the

time of the interview); and Greg Barker. All of these persons

were from Area I. The majority of the panel worked regularly

with the person ultimately selected.

10. Petitioner admits that there was no overtly

discriminatory questions or activity in the inte rview.

11. There were no questions or discussions amongst the

panel members about the applicants' race or age.

12. The panel members scored each applicant separately

without knowing how the other panel members scored the

applicants.

13. The panel mem bers scored the applicants as follows:

W. Cook S. Holly J. Mann D. Wolfe

Nikki Owens 45% 77% 90% 67%

Michael Conley 53.3% 63.3% 70% 63.6%

Darren Dobson 40% 63% 70% 67%

Greg Barker 40% 57% 73% 57%

To ny Williams 57% 73% 67% 50%

Terry Wilcox 33% 66.6% 76.6% 57.7%

14. After the individual panel members totaled their

respective scores, the applicants were ranked. Joseph Mann was

ranked first by five of the six panel members , and one panel

member, the black male, ranked Petitioner first.

15. The panel discussed the results and reached a

unanimous consensus to offer the Area I Lead Mechanic position

to Joseph Mann.

16. The panel prepared and provided feedback to all the

ap plicants. Petitioner's shortcoming was that he failed to give

specific examples to questions posted during his interview.

17. When he was not selected, Petitioner complained about

the outcome, believing he was the most qualified applicant and

was reject ed for racially motivated reasons.

18. Rachel Gold (a black female) and Lerissa Rowe, who

both worked in Respondent's Human Resources Department,

investigated Petitioner's complaint. During their

investigation, it came to their attention that a panel me mber,

Terry Wilcox, stated to a co - employee, "I don't think that there

would ever be two black people in charge of a group of white

mechanics in a shop."

19. After learning of Terry Wilcox' comment, Respondent

took the following action: (a) Respondent re calculated the

panel's score leaving out Terry Wilcox' score; and (b)

Respondent disciplined Terry Wilcox by suspending him for two

days without pay.

20. After recalculating the scores, Joseph Mann still had

the highest overall score. Petitioner's overal l score remained

the same.

21. Petitioner remained with Respondent until he

voluntarily retired effective November 1, 1999. No one forced

Petitioner to retire. The decision was Petitioner's alone,

prompted in part by a change in Respondent's retirement plan.

22. Petitioner admits that none of the panel members had

ever discriminated against him because of his race or age prior

to the complained of selection.

23. Since retiring, Petitioner has not sought employment

elsewhere. He is basically enjoying r etirement.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over this subject matter and the parties to this

action pursuant to Section 120.57(1), Florida Statutes.

25. Under the provisions of Section 760.10, Florida

Statu tes, it is an unlawful employment practice for an employer:

(a) 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, bec ause of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

26. The Florida Commission on Human Relations and the

Florida Courts have determined that federal discrimination law

should b e used as guidance when constructing provisions of

Section 760.10, Florida Statutes. See Brand v. Florida Power

Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

27. In order to obtain relief, the Petitioner must

demonstrate that he comes within the scope of the statute quoted

above. This case does not involve the Petitioner’s discharge or

failure or refusal by the employer to hire Petitioner. To

prevail, Petit ioner must show Respondent discriminated against

him with respect to compensation, terms, conditions, or

privileges of employment.

28. This showing is similar to the requirement in federal

cases to show an adverse employment action as discussed in

Burger v. Central Apartment Management, Inc. , 168 F.3d 875 (CA5 -

1999). The determination whether the action is adverse is based

upon an objective standard, and not a subjective standard. The

desire of the employee to remain in his or her current position

or to transfer to another like position will not be considered

in determining an adverse employment action. See Doe v. DeKalb

County School Board , 145 F.3d 1441, 1448 (CA 11 - 1998).

29. The record in this case does not show Petitioner

suffered any discriminatio n in respect to his compensation,

terms, conditions, or privileges of his employment. He did not

suffer an adverse employment action. Therefore, Petitioner does

not come within the scope of the statute.

30. The Supreme Court of the United States establ ished in

McDonnell - Douglas Corporation v. Green , 411 U.S. 248 (1981), the

analysis for courts to utilize in Title VII cases. The order of

proof and burden of proof in an age/race discrimination case

involves the "traditional" standard set forth in McDonne ll -

Douglas Corporation v. Green , 41 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973), and Texas Department of Community Affairs v.

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

That is, Petitioner has the burden of establishing by a

preponde rance of the evidence a prima facie case of unlawful

discrimination. If the prima facie case is demonstrated, a

presumption of discrimination arises and the burden shifts to

the employer to articulate a legitimate, non - discriminatory

reason for its action . The burden of producing evidencing is

next placed on Petitioner to demonstrate that the proffered

reason is pretextual. The ultimate burden of persuasion remains

at all times with Petitioner. See St. Mary's Honor Center v.

Hicks , 509 U.S. 502, 513, 11 3 S.Ct. 2742, 2747, 125 L.Ed.2d 407,

416 (1993). Petitioner failed to show that he came within the

scope of the statute; therefore, he failed to make a prima facie

case.

RECOMMENDATION

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

RECOMM ENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the instant petition.

DONE AND ENTERED this 30th day of November, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administr ative 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 Adminis trative Hearings

this 30th day of November, 2001.

COPIES FURNISHED :

Sylvester A. Holly, Jr.

Post Office Box 301

Cantonment, Florida 32533

Erick M. Drlicka, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Stree t

Pensacola, Florida 32596

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303 - 4149

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Ro ad

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 Recommend ed Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.