02-004523 Wanda Harkins vs. Hillsborough County Tax Collector Status: Closed Recommended Order on Wednesday, July 16, 2003.

Summary: Petitioner failed to establish that she was not promoted due to her age. Employer selected applicant who was best qualified for the promotion by virtue of that applicant`s work experience.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WANDA HARKINS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4523

)

HILLSBOROUGH COUNTY TAX )

COLLECTOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on April 7, 8, and 9, 2003, in Tallahassee, Florida, before

Carolyn S. Holifield, the designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roderick O. Ford, Esquire

Law Offices of Roderick O. Ford, P.A.

Post Office Box 17421

Tampa, Florida 33682

For Respondent: James J. Lynch, Esquire

Hillsborough County Attorney's Office

Post Office Box 1110

Tampa, Florida 33601

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice by failing to promote Petitioner to a

supervisory position.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the

Florida Commission on Human Relations (Commi ssion) on

September 14, 2000. The Commission entered a Notice of

Dismissal and Right to Sue on or about October 18, 2002.

Petitioner then filed a Petition for Relief which was forwarded

to the Division of Administrative Hearings on November 19, 2002,

for assignment of an administrative law judge to conduct a

formal hearing on the petition.

The matter was initially set for hearing on January 30,

2003, but was continued at the request of the Petitioner. The

case was subsequently rescheduled and conducted as noted above.

At the final hearing, Petitioner testified on her own

behalf and called 11 witnesses. Petitioner's Exhibits C, D, E,

H through M, O, Q, R, and S were received into evidence.

Respondent presented the testimony of nine witnesses.

Responde nt's Exhibits 1 through 5 were received into evidence.

At the conclusion of the hearing, after counsel for

Petitioner indicated that Petitioner was ordering a transcript

of the hearing, the parties agreed to file proposed recommended

orders ten days after the transcript was filed. On April 23,

2003, counsel for Petitioner advised the undersigned that

Petitioner had decided not to order the transcript of the

hearing. Thereafter, by agreement of the parties, the time for

filing proposed recommended orders was set for May 6, 2003.

Both parties timely filed Proposed Recommended Orders which have

been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a white female. At all times relevant to

this proceeding, Petitioner wa s over the age of 40.

2. Respondent, the Hillsborough County Tax Collector (Tax

Collector), is an elected public officer in Hillsborough County,

Florida, and is responsible for collecting certain taxes within

that county.

3. The Tax Collector's Office is divided into two main

Divisions, the Tax and License Division and the Motor Vehicles

Division. The work done by these two Divisions is different and

the training and work experience for each Division are

considered unique. The Tax and License Division c ollects taxes

on both real and personal property and issues hunting, fishing

and occupational licenses. The Motor Vehicle Division issues

drivers licenses and motor vehicle tags and titles. Some of the

Tax Collector's branch offices are full - service offi ces, which

provide the services of both the Tax and License Division and

the Motor Vehicle Division.

4. Petitioner was hired by the Hillsborough County Tax

Collector's Office as a Clerk III on March 4, 1994. At the time

Petitioner was hired by the Tax Co llector, she was 49 years of

age. She resigned from her position as a Clerk III on March 17,

2000, when she took a lateral transfer to the Water Department.

5. During the six years that Petitioner was employed by

the Tax Collector's Office, she worked ex clusively in the Tax

and License Division. Petitioner was a "detailed oriented"

person and did a good job as a Clerk III. There is no dispute

that she performed well within her assigned Clerk III duties.

6. After working for many years in the area of

oc cupational and hunting licenses of the Tax and License

Division, Petitioner's managers asked her to rotate into other

areas of the Tax and License Division for cross - training. As

part of this cross - training, Petitioner was reassigned to other

areas within Tax and License Division. Petitioner did not like

working in new areas and especially did not like working in the

Real Estate Delinquent Tax Section. The reason was that she

found it difficult to deal with taxpayers who were subject to

losing their home s because they were unable to pay their taxes.

7. Petitioner never worked in the Motor Vehicle Division

of the Tax Collector's Office.

8. After several years of working as a Clerk III,

Petitioner applied for some promotional opportunities as a

Clerk IV. At the time Petitioner was applying for promotion,

the Clerk IV position was a first line supervisory position.

Moreover, the incumbent Clerk IV had to take over for the

supervisor or manager in his or her absence. Petitioner, like

all other applicants for promotion, was given the opportunity to

have an interview as it was the policy of the Tax Collector's

Office to interview any candidate who desired an interview.

9. Jackie Wilhelm, a General Manger in the Motor Vehicle

Division, interviewed Petitioner in June or July of 1997 and,

again, in March or April of 1998 for a Clerk IV position in the

Motor Vehicle Division. Because Petitioner had worked for

several years as a Clerk III in the Tax and License Division,

she met the minimum requirements necessar y for a Clerk IV

position. However, both of the positions for which Petitioner

was interviewed required Motor Vehicle Division work experience

to be the best qualified person. Experience in the Motor

Vehicle Division was important for an individual selec ted for a

Clerk IV position in the Motor Vehicle Division because the

person in that position was responsible for supervising the work

of Clerk IIIs in that division. The most qualified applicant

for the Clerk IV position in the Motor Vehicle Division wou ld be

a person who had first - hand knowledge and experience regarding

the operations of the Motor Vehicle Division.

10. During the above - referenced 1997 and 1998 interviews,

Jackie Wilhelm asked Petitioner if she would be willing to take

a lateral transfer to a Motor Vehicle position so that she could

obtain motor vehicle experience. Petitioner declined both

times.

11. Sometime between September 1997 and March 1998,

Petitioner spoke to Charlotte Luke, who was her senior manager

in the Tax and License Divi sion, about promotional

opportunities. During the discussion, Petitioner and Ms. Luke

discussed ways for Petitioner to exhibit behavior that would

enhance her chances of getting promoted. Ms. Luke suggested

that Petitioner do the following: show leaders hip

characteristics; take initiative for changes to make work

processes more efficient; accept responsibility for writing

efficient procedures that affect the whole department; volunteer

to take on tasks that needed to be performed; show confidence in

her decision making by being more assertive; demonstrate

problem - solving ability in the absence of her supervisor; show

an ability to do multiple tasks at one time. Ms. Luke also

encouraged Petitioner to attend a career management class and a

communications s kills class.

12. After the discussion noted in the above paragraph,

Ms. Luke asked Petitioner's immediate supervisors to be on the

lookout for any indications that Petitioner was starting to

demonstrate the characteristics she and Ms. Luke had discussed.

Ms. Luke never got any positive reports that Petitioner was

showing improvement in the areas suggested. Furthermore,

Petitioner was not observed exhibiting any of these

characteristics while working in the Tax Collector's Office.

13. Petitioner filed a Charge of Discrimination on

February 1, 2000, with the Equal Employment Opportunity

Commission (EEOC) in which she claimed she was not promoted due

to her age. After an investigation, the EEOC dismissed the

charge. Petitioner then filed a Charge of Discr imination with

the Commission on September 8, 2000, in which she claimed that

she was not promoted due to her age. This charge was dismissed

by the Commission on or about October 18, 2002.

14. During the time period applicable to Petitioner's

charges, 36 5 days prior to her earliest EEOC complaint of

February 1, 2000, or February 1, 1999, there were several

promotional opportunities in the Tax Collector's Office. Of the

number of promotional opportunities available during that time,

Petitioner applied for only four such positions. All the

positions for which Petitioner applied were in the Motor Vehicle

Division and required motor vehicle work experience to be the

best qualified.

15. The Motor Vehicle Division has roughly five times more

supervisor - type p ositions (Clerk IV and above) than the Tax and

License Division.

16. One position for which Petitioner applied was a Motor

Vehicle training supervisor position. In October 1999, Rosemary

Johnson , Manager of Motor Vehicle Training, selected Marty

Rodrigue z for the Motor Vehicle training supervisor position.

During the selection process for this position, Ms. Johnson and

Barbara McCleary, Director of Motor Vehicles, interviewed

Petitioner and 16 other individuals. Ms. Johnson and

Ms. McCleary, individuall y and independently, rated each

applicant for this position. In these rankings, Petitioner was

not ranked as one of the top applicants by either Ms. Johnson or

Ms. McCleary. The reason was that Petitioner had no experience

working in the Motor Vehicle Di vision. At the time of this

selection, Ms. Johnson did not know of any allegations of age

discrimination and made her selection on the basis of the best

qualified for this position.

17. Petitioner also applied for two Motor Vehicle Clerk IV

positions, bo th of which were filled in November 1999. These

positions were assigned to the Palm River/Faulkenberg Office, a

full - service office of the Tax Collector. Although this full -

service office provided services of the Motor Vehicle Division

and the Tax and Li cense Division, the two Clerk IV positions for

which Petitioner applied were in the Motor Vehicle Division.

General Manager Parker interviewed Petitioner and during the

interview noted that Petitioner did not have Motor Vehicle

experience or experience wi th the Tax Collector's new computer

system, which was used heavily in that office.

18. Ms. Parker selected April Johnson and Michelle

Williams - Nedd for the two Clerk IV positions in the Motor

Vehicle Division that were described in paragraph 17. The

reas on Ms. Parker selected these applicants is that they both

had extensive experience with Motor Vehicle type work. In fact,

at the time these openings occurred, Ms. Williams - Nedd and

Ms. April Johnson were working in the Motor Vehicle Division.

Ms. Parker had personally worked with Ms. April Johnson and

Ms. Williams - Nedd and she knew that both applicants had the

ability and prior experience in the Motor Vehicle Division to

perform the job of Clerk IV in that division.

19. At the time Ms. April Johnson was promoted to the

Clerk IV position, she was twenty - five years of age. No

evidence was presented regarding the age of Ms. Williams - Nedd at

the time she was promoted.

20. In or about early 2000, Petitioner applied for a Motor

Vehicle supervisor position in the South County Office. In

February 2000, Tori Sydnor, General Manager of the South County

Office, selected Ju anita Gatica for the Motor Vehicle supervisor

position. The reason Ms. Sydnor selected Ms. Gatica was that

she knew of Ms. Gatica's work qualit y and prior experience

working in the Motor Vehicle Division. Ms. Sydnor knew that

Ms. Gatica had Motor Vehicle experience because she worked many

years with Ms. Gatica in that division. Furthermore, Ms. Sydnor

knew that experience in the Motor Vehicle D ivision was required

to be the best qualified for the Motor Vehicle supervisor

position.

21. In or about the Fall of 1999, Petitioner voluntarily

withdrew herself from consideration for a Clerk IV promotion in

the Tax and License Division. In September 1 999, Susan Lagore

was selected to fill that position.

22. Based on the evidence, it appears that during her

employment with the Tax Collector, Petitioner has interviewed

only once for a promotional opportunity in the Tax and License

Division, although tha t is the Division where she had all her

work experience.

23. Despite her success in performing the duties required

in the Clerk III position, Petitioner was not considered a good

prospect for promotion. Petitioner was a "detailed - oriented"

person with li ttle grasp of, or concern for, the larger picture

and mission of the Tax Collector's Office. While a Clerk III at

the Tax Collector's Office, Petitioner did not exhibit overall

confidence or initiative or tolerance for change in the work

environment. Pet itioner did not show any capacity for

supervisory level problem - solving; she showed little confidence

in decision - making; and she was very introverted to the point

where her introversion would be a hindrance, limiting her

ability to relate to subordinates and customers.

24. Petitioner stated that she wanted to be promoted to

Clerk IV. However, she did not take the steps to show she was

best qualified for such a promotion. Petitioner did not perform

very well during her interviews. Also, she failed to av ail

herself of the opportunity to increase her level of experience

in the Tax Collector's Office. Specifically, Petitioner twice

declined the opportunity for lateral transfer into the Motor

Vehicle area. Such a transfer would have given her experience

in the division of the Tax Collector's Office where most

promotions and Clerk IV positions were found. Moreover,

Petitioner did not demonstrate leadership ability and the

ability or desire to direct the work of others. Finally,

Petitioner tended to avoid a ll conflicts and, thus, would have

found it difficult to resolve conflicts between employees or

with citizens as a Clerk IV would be required to do when

conflicts arose.

25. Many workers within the Tax Collector's Office were

hired and/or promoted after t hey turned 40 years of age. For

example, Rosemary Johnson was 42 years of age when hired and was

52 years of age when she was promoted to training manager.

Claudia Coleman was promoted to three supervisory positions

after she was 51 years of age, with th e last promotion to

General Manager I occurring when she was 58 years of age. Other

employees of the Tax Collector's Office who were promoted after

the age of 40 included Ann Kemeny, who was promoted to

supervisor when she was 53; Susan Lane, who was prom oted to

training manager when she was 47; and Loides Rodriquez, who was

promoted to Clerk IV when she was 52.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuan t to Sections 120.569, 120.57(1), and

760.11(7), Florida Statutes.

27. The Florida Civil Rights Act of 1992 (Act) is codified

in Part I of Chapter 760, Florida Statutes. Subsection

760.10(1)(a), Florida Statutes, which is a part of the Act, is

relevant t o this proceeding and provides as follows:

(1) 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, c onditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

28. The Act, as amended, was patterned after Title VII of

the Civil Rights Act of 1964 and 1991, Title 42 U.S. Code,

Section 2000, et seq. , as well as the Age Discrimination in

Employment Act of 1967 (ADEA), Title 29 U.S. Code, Section 623.

Therefore, case law construing Title VII is persuasive when

construing Section 760.10, Florida Statutes. See Gray v.

R ussell Corporation , 681 So. 2d 310 (Fla. 1st DCA 1996); Florida

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

1st DCA 1991).

29. Title 29 U.S. Code, Section 631(a), provides that

persons who are at least over the age of 40 are protecte d by

ADEA.

30. In employment discrimination cases, Petitioner, the

employee, has the burden of establishing by a preponderance of

evidence a prima facie case of unlawful discrimination. If a

prima facie case is established, the burden shifts to

Responde nt, the employer, to rebut this preliminary showing by

producing evidence that the adverse action was taken for

legitimate nondiscriminatory reasons. If the employer rebuts

the prima facie case, the burden shifts back to the Petitioner

to show by a prepon derance of evidence that the Respondent's

offered reasons for its employment decision were pretextual.

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981).

31. To establish a prima facie case under the Act where,

as here, there is no d irect evidence of discriminatory intent,

Petitioner must establish that: (1) she is a member of the

protected group; (2) she was qualified for the position; (3) she

was subject to an adverse employment decision; and (4) after her

rejection, the position w as filled by a person outside

Petitioner's protected group. St. Mary's Honor Center v. Hicks ,

509 U.S. 502 (1993); McDonnell - Douglass Corporation v. Green ,

411 U.S. 792 (1973); Bryant , 586 So. 2d at 1209.

32. Petitioner established a prima facie case. The

preponderance of the evidence established that (1) Petitioner is

a member of a protected group in that she is over 40 years of

age; (2) she was qualified for the Clerk IV position; (3) she

was subjected to an adverse employment action in that she was

n ot hired for a Clerk IV position in the Motor Vehicle Division

of the Tax Collector's Office; and (4) the position was filled

by a person outside Petitioner's group, April Johnson, who was

25 years of age.

33. Petitioner does not allege age discrimination in any

of the other instances where she applied and interviewed for

positions that would have been promotions, but for which she was

not selected. Specifically, with regard to the promotion of

Marty Rodriguez to a Motor Vehicle training supervisor in 199 9

and of Juanita Gatica to a Motor Vehicle supervisor in 2000,

Petitioner concedes in her Proposed Findings of Fact that she

was not the most qualified applicant.

34. In this case, the Tax Collector met its burden to

produce evidence of legitimate nondis criminatory reasons for the

adverse employment action. The evidence demonstrates a

legitimate business rationale for its actions, that although

Petitioner met the minimum requirements for a Clerk IV position,

she clearly was not the best qualified for the position. The

Tax Collector produced credible evidence that Ms. April

Johnson's experience in the Motor Vehicle Division made her a

better candidate for the position of Clerk IV in the Motor

Vehicle Division than Petitioner who had no experience working

in that division.

35. In response, Petitioner failed to prove that the Tax

Collector's reasons for not promoting her were pretextual, or

that her age was the real reason that she was not hired. The

preponderance of the evidence demonstrates that that Pet itioner

was not promoted because Ms. April Johnson was the more

qualified candidate for the position. The Tax Collector

reasonably determined that Ms. April Johnson was more qualified

for a Clerk IV position in the Motor Vehicles Division because

she had experience working in that division and, as a first line

supervisor in that unit, such experience was important.

Accordingly, Petitioner failed to meet her ultimate burden to

prove that she was not selected for the Clerk IV position in the

Motor Vehicle D ivision because of her age.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that Respondent committed no

unlawful employment prac tice and dismissing the Petition for

Relief.

DONE AND ENTERED this 16th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeS oto 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 Administrative Hearings

this 16th day of July, 2003.

COPIES FURN ISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Roderick O. Ford, Esquire

Law Offices of Roderick O. Ford, P.A.

Post Office Box 17421

Tampa, Florida 33682

James J. Lynch, Esquire

Hillsborough County Attorney's Office

Post Office Box 1110

Tampa, Florida 33601

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.