03-001788 Lincoln E. Nicholson vs. City Of Sunrise Status: Closed Recommended Order on Friday, September 19, 2003.

Summary: Petitioner failed to prove that, in connection with Respondent`s employment of Petitioner, Respondent unlawfully discriminated against Petitioner on the basis of his race or national origin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINCOLN E. NICHOLSON, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1788

)

CITY OF SUNRISE, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came befo re Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

July 18, 2003, at sites in Tallahassee and Fort Lauderdale,

Florida.

APPEARANCES

For Petitioner: James Jean - Francois, Esquire

Kenneth S. Mair, Esquire

Mair, Jean - Francois & Associates, P.A.

3500 North State Road 7, Suite 479

Fort Lauderdale, Florida 33319

For Respondent: Richard McDuff, Esquire

Johnson, Anselmo, Murdoch, Burke

& George, P.A.

790 East Broward Boulevard, Suite 400

Fort Lauderdale, Florida 33301

James D. Stokes, Esquire

Muller Mintz, P.A.

200 South Biscayne Boulevard, Suite 3600

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue in this case is whe ther, in connection with

Respondent’s employment of Petitioner, Respondent unlawfully

discriminated against Petitioner on the basis of his race or

national origin.

PRELIMINARY STATEMENT

In a Charge of Discrimination dually filed with the U.S.

Equal Employment Opportunity Commission (“EEOC”) on

September 17, 2001, and with the Florida Commission on Human

Relations (“FCHR”) on September 27, 2001, Petitioner Lincoln

Nicholson, who is a black man from Jamaica, alleged that

Respondent City of Sunrise, wh ich employs Petitioner as a Gas

Service Person I, had unlawfully discriminated against him by

selecting a white man to fill a more senior position for which

Nicholson also had applied. The EEOC investigated Petitioner’s

claim and, on May 31, 2002, issued a notice stating that it was

unable to conclude whether an unlawful employment practice had

occurred. The FCHR issued a Notice of Dismissal and Right to

Sue on April 16, 2003. Thereafter, Petitioner filed a Petition

for Relief with the FCHR. The agency promptly referred the

matter to the Division of Administrative Hearings.

At the final hearing, which took place as scheduled on

July 18, 2003, Petitioner testified on his own behalf and called

two additional witnesses, both of them employees of Res pondent:

John Dillavou and Alistair MacLeod. Petitioner moved exhibits

numbered 1 through 6, 8, 9, and 11 into evidence. The City of

Sunrise presented its employees Harry Zehender and James Harris

as witnesses and offered exhibits numbered 1 through 7, which

were admitted into evidence.

The final hearing transcript was filed on July 30, 2003,

and after that each party filed a Proposed Recommended Order

before the deadline established at the close of the hearing,

which was August 26, 2003.

Unless o therwise indicated, citations to the Florida

Statutes refer to the 2003 Florida Statutes.

FINDINGS OF FACT

Introductory Facts

1. Petitioner Lincoln Nicholson (“Nicholson”) is a black

man who was born in Jamaica.

2. Respondent City of Sunrise, Florida ( the “City”), is a

municipality located in Broward County. The City operates its

own natural gas utility.

3. Nicholson began working for the City in its Gas

Department as a Gas Service Person I (“GSP - I”) on August 7,

2000. As of the date of the final h earing, Nicholson was still

employed by the City in that capacity.

4. Nicholson contends that not only is he qualified for

employment as a Gas Service Person III (“GSP - III”), which is a

more senior, higher - paid position in the City’s Gas Department

than t he one he presently holds, but also that he actually has

been performing the functions of a GSP - III. Nicholson claims

that but for his race or national origin, the City would have

either hired him as a GSP - III or promoted him to that position.

He charges that the City has committed acts of intentional

employment discrimination by refusing to offer him the higher -

ranking position.

5. The City admits that Nicholson meets the minimum

qualifications for hire as a GSP - III but denies the allegations

of intent ional discrimination; it maintains that it filled the

position for which Nicholson applied with a better (or at least

equally) qualified candidate, namely, the City employee who had

previously held the position.

The Material Historical Facts

6. On Septemb er 13, 1999, the City posted a notice

advertising its intention to hire a qualified person to work as

a GSP - III in the City’s Gas Department. According to the

notice, the job would entail “supervisory and technical work” in

the areas of “cathodic protecti on, corrosion and leak control on

a natural gas distribution system.”

7. The notice identified the minimum qualifications for

the position, the relevant one, for present purposes, being

this:

-- Must possess a Cert[ificate] of Competency

as a Master or Journeyman Gas Fitter from

the Central Examining Board of Plumbers of

Broward County or equivalent.

8. The position in question had opened up a few weeks

earlier, when the incumbent, a longtime employee of the City

named Roger Black, took a job as a Util ity Operator Trainee in

the City’s Utilities Department. Although this move resulted in

a reduction in salary for Mr. Black and hence was technically a

“demotion,” the evidence shows (and it is found) that Mr. Black

transferred voluntarily and that his pe rformance as a GSP - III

had always been rated at least satisfactory.

9. On or about October 11, 1999, an individual named

Douglas Blau applied for the GSP - III position. Mr. Blau was

well qualified for the position —— indeed, he was arguably over -

qualified 1 — — and via memorandum dated April 14, 2000, Gas

Department Director Harry Zehender recommended to Personnel

Director James Harris that Mr. Blau be hired. The City then

began “processing” Mr. Blau’s application.

10. Meanwhile, on April 17, 2000, Nicholson a pplied for

the job. Nicholson had approximately 25 years’ experience

working in the field of natural gas distribution, although, at

the time of applying for the GSP - III position, he had been

working outside that field for about a year and a half. The

evi dence leaves no doubt, however —— and the City stipulated —— that

Nicholson met all the minimum qualifications for employment as a

GSP - III.

11. Nicholson interviewed for the position with Alistair

MacLeod, the Gas Department’s Supervisor. At some point, ei ther

during the interview or later, Mr. MacLeod told Nicholson that

the GSP - III position had been filled by another applicant,

meaning Mr. Blau, who had been recommended for employment but

not yet offered the job. 2 Because Mr. Blau was the putative

succes sful applicant for the GSP - III post, Nicholson was asked

if he were interested in taking a more junior position as a

GSP - I. Nicholson responded affirmatively; was offered the job

on July 11, 2000; accepted the City’s offer; and, as mentioned,

began worki ng for the City as a GSP - I on August 7, 2000.

12. Around the time Nicholson came to work for the City,

Mr. Black applied for his old job back. 3 The City did not

interview Mr. Black because he was known to the personnel

responsible for making the decision to hire. He was not offered

the position because Mr. Blau was still in line to receive it.

13. On or about September 14, 2000, Mr. Blau informed the

City that he was no longer interested in the GSP - III position.

14. The next week, on September 22, 2000, Nicholson

submitted a supplement to his application for the GSP - III

position. 4 The City did not interview Nicholson because he was

known to the personnel responsible for making the decision to

hire.

15. About ten months later, the City chose Mr. Black, who

is white, to fill the vacant GSP - III position —— the very position

that Mr. Black had vacated nearly two years earlier, in August

1999. He returned to his former position on July 21, 2001. 5

Mr. Black’s Qualifications

16. Nicholson argues that Mr. Black should have been

disqualified from consideration for the GSP - III position because

he did not, Nicholson alleges, possess a valid Certificate of

Competency as a Master Gas Fitter. In support of this

contention, Nicholson proffered a copy Mr. Bla ck’s certificate

numbered 91 - CMGF - 562 - X, which specifies an expiration date of

August 31, 1992, together with a letter from the Broward County

Records Custodian dated July 14, 2003, which attests that Mr.

Black’s Certificate of Competency No. 91 - CMGF - 562 - X is active

for the period from August 2, 2002 through August 31, 2004.

From these papers Nicholson infers that Mr. Black’s Certificate

of Competency as a Master Gas Fitter must have been inactive

between August 31, 1992 and August 2, 2002 —— and hence “inva lid”

when he returned to his old job as GSP - III in July 2001.

17. The City, however, as part of its Composite Exhibit 1,

put into evidence a copy of Mr. Black’s Certificate of

Competency No. 91 - CMGF - 562 - X from the mid - 1990s, showing an

expiration date of August 31, 1996. This, of course, does not

prove that Mr. Black’s certificate was active in July 2001, but

it does falsify Nicholson’s inference that Mr. Black failed to

renew his certificate for ten straight years. As a result, the

undersigned declines to infer that Mr. Black’s certificate was,

more likely than not, inactive as of July 21, 2001.

18. Further, the notice that the City posted regarding the

available GSP - III position stated that a Certificate of

Competency as a Master Gas Fitter “or [its] equivalent” was

required. The undersigned agrees with the City that an inactive

certificate reasonably can be deemed the equivalent of an active

certificate for the purpose of meeting this qualification,

since, as the City proved, a GSP - III does not need to possess

the authority conferred by the Broward County certificate in

order to perform the job; rather, the City is interested in

employing persons who have the underlying knowledge and

experience necessary to obtain such a certificate. 6 Thus, the

unde rsigned finds alternatively that the City, as it suggests,

reasonably could have determined, without intending to

discriminate unlawfully, that Mr. Black at least possessed the

equivalent of a Broward County Certificate of Competency as a

Master Gas Fitter .

19. In sum, Mr. Black was, in fact, a qualified applicant

for the GSP - III position.

Is Nicholson Better Qualified Than Mr. Black?

20. Nicholson contends that he was the superior applicant

vis - à - vis Mr. Black, for two reasons that the undersigned

cons iders worthy of note. The first is Nicholson’s claim that

he is (and at all times material has been) responsible for

“cathodic protection,” which is a method of corrosion control,

while Mr. Black has been assigned to other duties. Describing

cathodic pro tection as the major function of a GSP - III,

Nicholson contends that he is de facto doing the job without the

benefits of the title, whereas Mr. Black, who has the title and

attendant benefits, is not doing the job.

21. It is found that Nicholson is, in f act, responsible

for cathodic protection and that this function historically has

been undertaken primarily by a GSP - III rather than a GSP - I such

as Nicholson. However, the evidence also persuasively

establishes that all Gas Department service personnel ar e

expected to perform a variety of tasks, including cathodic

protection. Presently, the fact that Nicholson is qualified and

able to perform cathodic protection frees Mr. Black to handle

other functions. On this record, the undersigned is not

persuaded t hat Nicholson necessarily does a better job of

cathodic protection than Mr. Black would do or that Mr. Black is

incapable of doing the work. Instead, the evidence shows that

the City is attempting to make the highest and best use of its

employees.

22. T he second plausible basis for Nicholson’s contention

that he is better qualified than Mr. Black is that Nicholson has

more years of experience in the field of natural gas

distribution —— some 25 years versus about 12 for Mr. Black as of

the time the decision to hire was made. If all experience - years

were necessarily equal, then Nicholson would have a point. But,

obviously, all experience - years are not necessarily equal. In

this instance, the undersigned finds that the City reasonably

viewed Mr. Black’s 12 years’ service in the City’s Gas

Department, which included a number of years working as a GSP -

III, as more relevant experience than Nicholson’s.

23. The undersigned is ultimately not persuaded that

Nicholson was necessarily the better qualified candid ate, as

compared to Mr. Black, but instead finds that the City, as it

suggests, reasonably could have decided, without intending to

discriminate, that Mr. Black was at least equally qualified, if

not more so.

Ultimate Factual Determinations

24. The Cit y’s proffered reasons for hiring Nicholson as a

GSP - I rather than a GSP - III, and for later selecting Mr. Black

to fill the vacant GSP - III position after Mr. Blau, the putative

successful applicant, removed himself from consideration, are

legitimate, nondis criminatory reasons for the decisions in

question. By putting forward these legitimate,

nondiscriminatory reasons, the City obviated the need to

determine whether Nicholson presented a prima facie case of

discrimination in connection with either of these decisions.

25. The undersigned is not persuaded, and therefore does

not find, that the grounds asserted by the City for its

employment decisions are actually a pretext for unlawful

discrimination.

26. In sum, Nicholson has not established by the great er

weight of the evidence that the City discriminated unlawfully

against him when it hired Nicholson as a GSP - I or when it later

chose Mr. Black, instead of Nicholson, to fill the GSP - III

position for which Nicholson had also applied.

CONCLUSIONS OF LAW

2 7. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

28. It is unlawful for an employer to discharge or

otherwise discriminate against an employee with respect to

compensation, terms, conditions, or privileges of employment,

based on the employee’s race, gender, or national origin. See

§ 760.10(1)(a).

29. Federal laws against discrimination may properly be

used for guidance in evaluati ng the merits of claims arising

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

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

Dept. of Community Affairs v. Bryant , 586 So. 2d 1205, 1209

(Fla. 1st DCA 1991).

30. In McDonnell Douglas Corp. v. Green , 4ll U.S. 792,

802 - 03 (1973), the Supreme Court of the United States

articulated a burden of proof scheme for cases involving

allegations of discrimination under Title VII, where, as here,

the plaintiff relies upon circumstantial evi dence of

discriminatory intent. The McDonnell Douglas decision is

persuasive in this case, as is St. Mary’s Honor Center v. Hicks ,

509 U.S. 502, 506 - 07 (1993), in which the Court reiterated and

refined the McDonnell Douglas analysis.

31. Pursuant to this analysis, the plaintiff (Petitioner

here) has the initial burden of establishing by a preponderance

of the evidence a prima facie case of unlawful discrimination.

Failure to establish a prima facie case of discrimination ends

the inquiry. See Ratliff v. State , 666 So. 2d 1008, 1012 n.6

(Fla. 1st DCA), aff’d , 679 So. 2d 1183 (1996)( citing Arnold v.

Burger Queen Systems , 509 So. 2d 958 (Fla. 2d DCA 1987)). If,

however, the plaintiff succeeds in making a prima facie case,

then the burden shifts to the defe ndant (Respondent here) to

articulate some legitimate, nondiscriminatory reason for its

complained - of conduct.

32. Once the defendant “responds to the plaintiff’s proof

by offering evidence of the reason for the [decision that

aggrieved the plaintiff], the fact finder must then decide

whether the [challenged decision] was discriminatory” without

regard for the rebuttable presumption of discrimination that

arises from a prima facie showing, which presumption drops from

the case. U.S. Postal Service Bd. o f Governors v. Aikens , 460

U.S. 711, 714 - 15, 103 S.Ct. 1478, 1481 - 82 (1983). That is to

say, where “the defendant has done everything that would be

required of him if the plaintiff had properly made out a prima

facie case, whether the plaintiff really did so is no longer

relevant.” Id. at 715, 103 S.Ct. at 1482.

33. If the defendant carries the burden of rebutting the

plaintiff’s prima facie case, then the plaintiff must

demonstrate that the proffered reason was not the true reason

but merely a pretext f or discrimination. McDonnell Douglas , 411

U.S. at 802 - 03; Hicks , 509 U.S. at 506 - 07.

34. In Hicks , the Court stressed that even if the trier of

fact were to reject as incredible the reason put forward by the

defendant in justification of its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question whether the defendant intentionally had

discriminated against him. Hicks , 509 U.S. at 511. “It is not

enough, in other words, to dis believe the employer; the

factfinder must believe the plaintiff's explanation of

intentional discrimination.” Id. at 519.

35. In the present case, because the City offered evidence

of legitimate, nondiscriminatory reasons for the decisions at

issue, it is not necessary to decide whether Ni cholson actually

made out a prima facie case of discrimination either with

respect to the City’s initial decision to hire him as a GSP - I or

its subsequent decision to promote Mr. Black, rather than

Nicholson, to the GSP - III position that remained open in J uly

2001. The undersigned has before him all the evidence he needs

to determine whether the City intentionally discriminated

against Nicholson. See Aikens , 460 U.S. at 715, 103 S.Ct. at

1482.

36. For the reasons set forth in the Findings of Fact, the

u ndersigned trier of fact is not persuaded by the greater weight

of the evidence that the City intentionally discriminated

against Nicholson when it hired him as a GSP - III or when it

selected someone else for the GSP - III position. 7

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order

dismissing Nicholson’s Petition for Relief.

DONE AND ENTERED this 19th day of September , 2003 , in

Tallahassee, Le on County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Fi ling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of September , 2003 .

ENDNOTES

1 / For example, Mr. Blau holds a bachelor’s degree in ele ctrical

engineering, while the GSP - III position requires only a high

school diploma.

2 / In January 2000, a second GSP - III slot, out of three budgeted

positions at that rank, became available when the person then

occupying the position transferred out of the Gas Department.

That particular vacancy did not last long, however, because in

mid - March 2000 another City employee was demoted to the recently

opened GSP - III position in a disciplinary action following his

misconduct in the workplace. While there is some conflict in

the evidence as to whether Nicholson was told there were two

GSP - III openings, the dispute is ultimately immaterial, because

Nicholson did not attempt to make out a prima facie case of

discrimination based on the City’s decision to demote another

City employee to GSP - III. There is little or no evidence, for

example, concerning the demoted employee’s qualifications, much

less any persuasive evidence that Nicholson was better qualified

than he.

3 / Mr. Black submitted his application for t he GSP - III position

on July 27, 2000.

4 / Nicholson claims to have applied for the job yet again in

November 2000. Although there is no documentary evidence

corroborating such claim, the undersigned does not necessarily

disbelieve Nicholson’s testimony i n this regard, but he

concludes that it is immaterial whether Nicholson applied again

in November 2000. This is because there is no dispute that, as

of September 22, 2000, Nicholson’s application for the job of

GSP - III was active.

5 / On September 18, 20 00, Mr. Black had been placed in the

position of Utility Mechanic I, a job for which he had applied

on July 17, 2000 —— ten days before he would apply for the GSP - III

position. The transfer to Utility Mechanic I was classified as

a voluntary demotion, appar ently because Mr. Black was required

to be on probationary status for six months. There is no

persuasive evidence, however, that this transfer was the result

of disciplinary action or poor performance on Mr. Black’s part.

6 / It is not necessary to consi der whether a revoked or

suspended certificate would be an “equivalent” credential

because there is no basis in the evidence for drawing the

inference that Mr. Black’s certificate ever fell into either

category.

7 / Having resolved the dispute on the meri ts in the City’s

favor, it is not necessary to address the City’s affirmative

defense that Nicholson’s claim, to the extent it was based on

the initial decision to hire him as a GSP - III, is time barred.

COPIES FURNISHED :

James Jean - Francois, Esquire

Kenneth S. Mair, Esqui re

Mair, Jean - Francois & Associates, P.A.

3500 North State Road 7, Suite 479

Fort Lauderdale, Florida 33319

Richard McDuff, Esquire

Johnson, Anselmo, Murdoch, Burke

& George, P.A.

790 East Broward Boulevard, Suite 400

Fort Lauderdale, Florida 33301

James D. Stokes, Esquire

Muller Mintz, P.A.

200 South Biscayne Boulevard, Suite 3600

Miami, Florida 33131

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.