01-004887 D. Paul Sondel vs. Department Of Corrections Status: Closed Recommended Order on Wednesday, March 13, 2002.

Summary: Petitioner`s application did not reflect required experience and no evidence of age discrimination found. Petition should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D. PAUL SONDEL, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4887

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Don W. Davis, Admin istrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in this case

on February 26, 2002, in Tallahassee, Florida. The following

appearances were entered.

APPEARANCES

For Petitioner: Paul Sondel, pro se

2135 Victo ry Garden Lane

Tallahassee, Florida 32301

For Respondent: Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue for determination is whether Petition er was

subjected to discrimination in the work environment by the

Department of Corrections (Re spondent) due to Petitioner's age in

violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against

Re spondent with the Florida Commission on Human Relations (FCHR)

on February 1, 2001, alleging discrimination in regard to

Petitioner's application on the basis of his age.

On or about November 8, 2001, the FCHR issued its

Determination: No Cause.

On or about December 17, 2001, Petitioner filed a Petition

for Relief with the FCHR. Subsequently, on or about December 21,

2001, the case was forwarded to the Division of Administrative

Hearings (DOAH) for formal proceedings.

During the hearing, Petitioner t estified on his own behalf

and also presented one exhibit. Respondent presented the

testimony of one witness and four exhibits. No transcript of the

proceeding was provided.

Both Petitioner and Respondent filed Proposed Recommended

Orders, both of w hich have been reviewed and considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Paul Sondel, was born on August 13, 1928.

He was 72 years old at the time that he applied for Respondent's

Position No. 01891/Education S upervisor I. His application was

timely received by Respondent personnel.

2. The minimum qualifications for the education supervisor

were, inter alia , two years' teaching experience and possession,

or eligibility for a current professional State of Flori da

Educator's certificate in adult or vocational administration.

3. Mary Bass, a personnel technician for Respondent,

reviewed all applications for the education supervisor position

to make an initial determination as to whether applicants met

the require d minimum qualifications. She was not required to

telephone applicants concerning the minimum qualifications and

relied solely upon the information contained on the employment

applications to make the initial determination of eligible

applications. She c ompleted her review of all applications in

the same manner. Further, her inspection was done without

regard to the ages of the applicants as set forth in the

applications.

4. In reviewing Petitioner's application, Bass could not

determine whether Petitio ner, in fact, had two years of teaching

experience; nor could she determine that he currently possessed

or was eligible for a professional State of Florida educator's

certificate in adult or vocational administration. Since his

application did not contain information indicating that either

of these two minimum qualifications had been met, Bass

determined that Petitioner did not meet minimum qualifications

for the job and did not merit further consideration. Had Bass

made a determination that Petitioner's application did meet

minimum qualifications, such a determination would have merely

permitted inclusion of his application with other eligible

applicant applications and would not have necessarily led to an

interview or obtainment of the position by him.

5. Based on Bass' initial screening of his application,

Petitioner was notified by Respondent personnel via letter dated

January 24, 2001, that he had not been selected for the position

of Education Supervisor 1.

6. As established by the evidence adduce d at final

hearing, the individual eventually hired by Respondent for the

position at issue in these proceedings had six years of teaching

experience and current possession of a State of Florida teaching

certificate. The age of this individual is not in e vidence.

7. Mary Bass' determination that Petitioner's application

did not meet minimum qualifications for the position of

Education Supervisor 1, was based solely on a good - faith review

of Petitioner's application. Bass had no agenda that included

dispe nsing with Petitioner's application on the basis of his

age.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

9. Chapter 760, Florida Statutes, the "Florida C ivil

Rights Act of 1992," provides security from discrimination based

upon race, color, religion, sex, national origin, age, handicap,

or marital status.

10. The adverse effectuation of an employee’s

compensation, conditions, and privileges of employment on the

basis of age is an unlawful employment practice.

11. The burden of proof rests with Petitioner to show a

prima facie case of employment discrimination. After such a

showing by Petitioner, the burden shifts to Respondent to

articulate a nondiscrim inatory reason for the adverse action.

If Respondent is successful and provides such a reason, the

burden shifts again to Petitioner to show that the proffered

reason for adverse action is pretextual. School Board of Leon

County v. Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981).

12. The Supreme Court of the United States has recognized

that direct evidence of discrimination is extremely rare. As a

consequence, the Supreme Court in McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973), articulated a method by which

complainants, such as Petitioner in this case, might establish a

rebuttable presumption of discrimination. That method requires

that Petitioner show (a) that he is a member of a protected

class; (b) that he has been subjected to adverse employment

action; (c) that he was treated differently than employees not a

member of the protected class; and (d) that there is evidence of

a causal connection between Petitioner's protected status and

his disparate treatment.

13. Petitioner has failed to offer cre dible evidence that

rejection of his employment application was based on his age.

As a consequence, it is concluded that Petitioner has not shown

that Respondent's rejection of his employment application was a

pretext to the exercise of employment discrim ination on the

basis of age.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED:

That a final order be entered dismissing the Petition for

Relief.

DONE AND ENTERED this 13th day of March, 2002, in

Tallahassee , Leon County, Florida.

___________________________________

DON W. DAVIS

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 (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of March, 2002.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 24 0

Tallahassee, Florida 32303 - 4149

Gary L. Grant, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399

D. Paul Sondel

2135 Victory Garden Lane

Tallahassee, Florida 32301 - 8507

Cecil Howard, General Counsel

Florida Commissi on 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 exc eptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.