03-001985 D. Paul Sondel vs. Apalachee Center For Health Services Status: Closed Recommended Order on Wednesday, October 1, 2003.

Summary: Petitioner not hired because Respondent did not consider any applications other than the ones submitted in the last month and because of work history at his last two jobs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D. PAUL SONDEL, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1985

)

APALACHEE CENTER FOR HEALTH )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A form al hearing was conducted in this case on August 12,

2003, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: D. Paul Sondel, pro se

2135 Victory Garden Lane

Tallahassee, Florida 32301

For Respondent: W. Douglas Hall, Esquire

Lannie D. Hough, Jr., Esquire

Carlton Fields, P.A.

Post Office Drawer 1 90

Tallahassee, Florida 32302 - 0190

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment action in violation of Section 760.10(1), Florida

Statutes, by failing to hire Petitioner based on his race , sex

and age.

PRELIMINARY STATEMENT

On or about August 2002, Petitioner, D. Paul Sondel

(Petitioner) filed a Charge of Discrimination with the Florida

Commission on Human Relations (FCHR). The charge alleged that

Respondent, Apalachee Center for Health Services (Respondent)

violated Section 760.10, Florida Statutes (2002), by

discriminating against him based on his race, age, and sex.

On May 19, 2003, FCHR issued a Determination: No Cause,

finding that there was no reasonable cause to believe that an

unlawful employment practice had occurred. A Notice of

Determination: No Cause, issued that same day, advised

Respondent that he had 35 days to request an administrative

hearing by filing a Petition for Relief

On May 22, 2003, Petitioner filed a Petition for Relief.

The Petition alleged that Respondent discriminated against

Petitioner based on his age by failing to hire him.

FCHR referred the Petition for Relief to the Division of

Administrative Hearings on May 28, 2003.

A Notice of Hearing dated June 16, 2003, scheduled the

hearing for August 12, 2003.

During the hearing, Petitioner testified on his own behalf

and offered two exhibits that were admitted into evidence.

Respondent presented the testimony of three witnesses and

offered eight exhibits that were admitted into evidence.

A transcript of the proceeding was filed on September 8,

2003.

Petitioner filed a proposed order entitled Petitioner's

Response to Hearing on August 22, 2003. Respondent filed a

Proposed Recommended Order on September 1 8, 2003.

All citations are to Florida Statutes (2002) unless

otherwise indicated.

FINDINGS OF FACT

1. Petitioner is a white male who was born on August 13,

1928. He was 73 years old, and retired from state employment,

when he applied for the employment positions at issue here.

2. Petitioner majored in sociology/psychology, earning a

Batchelor of Arts degree from San Jose State University, San

Jose, California, in 1954. He completed post - graduate work in

English and education, earning a master of scien ce degree at

Purdue University, Lafayette, Indiana, in 1980. Petitioner

became a paralegal after earning an associate of science degree

at Tallahassee Community College, Tallahassee, Florida, in 1995.

3. Petitioner received teaching certificates in Calif ornia

in 1960 and in Florida in 2001. He has over 22 years of

teaching and administrative experience. He was qualified to

work as a behavioral specialist in a skills program.

4. Petitioner's recent job history includes, but is not

limited to, the follow ing: (a) from February 27, 2001 to

August 17, 2001 (approximately six months), contract

administrator for the Florida Department of Juvenile Justice;

(b) from August 15, 2000 to December 27, 2000 (approximately

four months), counselor for inmates in drug treatment program at

Jefferson County Correctional Institution; (c) from December 4,

1994 to June 30, 2000 (approximately five and one - half years),

coordinated offender placement program for Florida Department of

Labor and Employment Security; and (d) from March 11, 1992 to

September 18, 1992 (approximately six months), drug counselor

for Liberty County Correctional Institution.

5. Petitioner's prior work experience also includes, but

is not limited to, the following: (a) 1990/91 school year as a

teache r at the Dozier School for Boys in Mariana, Florida; (b)

1990/91 school year as residence hall manager for Chipola Junior

College; (c) five months in 1988 as coordinator of a drug

program for the Florida Department of Education; (d) 1985/86

school year as instructor of military personnel in Korea and

Japan for Central Texas College; (e) one year and three months

in 1984/85 as a program coordinator for Florida Department of

Transportation; (f) from 1975 to 1989, as a contractor on state

and national governme ntal projects; (g) six months (1980/1981)

as assistant safety director for George Washington University;

(h) from 1968 to 1976 as teacher in California secondary

schools; (i) from 1965 to 1968 as teaching supervisor for Job

Corps program in California; (j) 1964/65 school year as

instructor for University of Nevada; and (k) 1961 to 1964 as

teacher/principal in a California elementary school.

6. Respondent has a written procedure for processing job

applications. One purpose of the procedure is to maintain a

pool of qualified applicants for each position. Another purpose

is to assure each applicant or employee an equal employment

opportunity without regard to a person's age, race, color, sex,

religious creed, national origin, handicap, military or marital

status.

7. Respondent's Human Resources Department is responsible

for receiving and taking the initial steps in processing

employment applications. As applications are processed, they

are checked for completeness and evidence of minimum

qualifications for the position or positions for which the

applicant is applying.

8. First, essential information about each applicant is

typed into the corresponding computerized position requisition

file. The input data includes the following: (a) applicant

name; (b) applicant sex and race; (c) applicant veteran status;

(d) how applicant learned of position; (e) date of application;

(f) applicant current employment status; and (g) applicant met

minimum qualifications. Respondent's Human Resources Department

then p rints a computerized applicant referral form, which does

not contain any reference to the applicant's age or birth date.

9. Next, Respondent's Human Resources Department copies

the applications except for certain sections. One section that

is not copie d is the EEO Survey, which contains a statement

directing applicants who believe they have been discriminated

against to file a complaint with FCHR. The EEO Survey also

requests information about the applicant's sex, birth date, and

race. It is not manda tory for applicants to provide Respondent

with the information requested in the EEO Survey.

10. Respondent's Human Resources Department sends the

original applicant referral form and a copy of the application

to the hiring supervisor. The materials rev iewed by the hiring

supervisor do not include the EEO Survey or refer to the

applicant's age or birth date.

11. Finally, the original application in its entirety is

filed alphabetically by name of applicant in the application

file. The application file is purged twice a year, eliminating

any applications that are one year old.

12. An employment position is open or available on the

date that the hiring supervisor fills out a position requisition

form. The employment position remains open until someon e is

hired to fill the position.

13. On or about January 28, 2002, Respondent's Director of

Clinical Skills, Alicia Conger, Ph.D., completed a position

requisition form for position #2055. The position related to a

behavioral specialist in a skills pro gram at Stewart Street

Elementary School in Quincy, Florida.

14. On or about February 22, 2002, Respondent's behavioral

analyst and clinical supervisor at Pace School, Ginger Stodard,

completed a position requisition form for position #2129 for a

behavi oral specialist in a skills program at Pace School in

Tallahassee, Florida. The position requisition form indicated

that the position would not be available until March 1, 2002.

15. Dr. Conger subsequently reviewed the applications sent

to her by Respond ent's Human Resources Department for position

#2055. The applications included one submitted by Adrian Mills.

On February 26, 2002, Dr. Conger completed a personnel action

form, recommending that Respondent hire Ms. Mills to fill

position #2055 for $11.5 0 per hour. Respondent's Chief

Administrative Officer accepted this recommendation on

February 28, 2002. Ms. Mills was hired effective March 4, 2002.

16. In the meantime, Petitioner became aware of

Respondent's February 27, 2002, advertisement for pos ition nos.

2055 and 2129. Petitioner was not aware that position #2055 was

closed on February 28, 2002, before he submitted his employment

application.

17. Petitioner filed an employment application with

Respondent on March 4, 2002, while position #212 9 was still

available. His application referenced five employment positions

in which he was interested. Petitioner was especially

interested in working as a behavioral specialist in position

#2055 or #2129. The application clearly states that

Petitioner 's minimum acceptable salary was $12.10 per hour.

18. Respondent's Human Resource Department processed

Petitioner's application pursuant to Respondent's written

procedure. His application, among others, was sent to

Ms. Stodard for consideration of Petiti oner as a candidate for

position #2129.

19. Ms. Stodard reviewed the applications for position

#2129 as she received them. However, she did not interview any

applicants because, about the time the position became vacant,

Respondent placed a hold on the h iring procedure for position

#2129.

20. Respondent funds behavioral specialists positions

using Medicaid dollars. Respondent must have six Medicaid

eligible students for every behavioral specialist position.

21. Pace School's student population is v ery transient.

After Respondent advertised position #2129 in February 2002,

Pace School lost three Medicaid eligible students to a program

operated by the Florida Department of Juvenile Justice. Another

student lost his Medicaid eligibility when he becam e 18 years

old. Consequently, the Pace School did not have a sufficient

number of Medicaid eligible students to support the hiring of

another behavioral specialist when position #2129 became vacant

on March 1, 2002.

22. The training that Respondent pro vides to persons hired

as behavioral specialists is very intensive. Typically, it

takes from six months to one year before a person is proficient

in that position. Accordingly, Ms. Stodard always considers an

applicant's work history, focusing on the len gth of time spent

in prior jobs.

23. Ms. Stodard reviewed Petitioner's application when she

received it even though she was not interviewing applicants at

that time. She noted that he had stayed in his last two jobs

for only six months and four months respectively. She was not

impressed with Petitioner's work experience because she wanted

to hire a person with better staying potential.

24. People hired as behavioral specialist stay in that

position for about two years on average. Some employees rem ain

in that position for a much longer period of time.

25. On or about June 17, 2002, Ashley Doyle submitted an

application for employment as a behavioral specialist in

position #2129. The application indicated that Ms. Doyle could

begin working on Jul y 10, 2002.

26. In April 2002, Ms. Doyle earned a bachelor of science

degree in Family and Child Sciences/Counseling from Florida

State University, in Tallahassee, Florida. Ms. Doyle's work

experience included the following: (a) from January 7, 2002 t o

April 9, 2002, intern guidance counselor at an elementary

school; (b) from August 2001 to December 2001, after - school

teacher at a private preparatory school; and (c) from July 2000

to June 2001, psychometrist for Psychology Associates of

Tallahassee, Fl orida. Ms. Doyle was qualified to work as a

behavioral specialist in a skill program.

27. Petitioner testified that Ms. Doyle was a female in

her twenties. There is no evidence to the contrary.

28. By the time Respondent took position #2129 off hol d,

Ms. Stodard had received a stack of applications. Ms. Stodard

decided who she would interview by reviewing the stack of

applications that she had received in the last month. After

finding candidates to interview, Ms. Stodard did not reconsider

Petitio ner's application or any of the earlier filed

applications.

29. On June 20, 2002, Ms. Stodard recommended that

Respondent hire Ms. Doyle for position #2129. Dr. Conger

accepted Ms. Stodard's recommendation and completed the

paperwork on June 26, 2002. Respondent's Chief Administrative

Officer subsequently approved Dr. Conger's decision to hire

Ms. Doyle effective July 12, 2002. Position #2129 was closed in

Respondent's records on June 28, 2002.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and 760.11.

31. Pursuant to Section 760.10(1), it is unlawful for an

employer to fail or refuse to hire individuals because of th eir

race, sex, or age.

32. Decisions construing Title VII, United States Civil

Rights Act of 1962, as amended, 42 U.S.C.A. Section 2000e, et

seq. , and the Federal Age Discrimination in Employment Act of

1967, as amended, 29 U.S.C.A. Section 621 et seq. , a re

applicable when evaluating a claim brought under the Florida

Civil Rights Act of 1992, as amended in Sections 760.01 through

760.11. See Harper v. Blockbuster Entertainment Corp. , 139

F.3d 1385, 1387 (11th Cir. 1998)(citing Ranger Insurance Co. v.

Bal Harbour Club, Inc. , 549 So. 2d 1005, 1009 (Fla. 1989));

Florida State University v. Sondel , 685 So. 2d 923, 925 (Fla.

1st DCA 1997).

33. Petitioner has the burden of proving that he has a

cognizable claim of discrimination under Section 760.10, and if

so, he bears the ultimate burden of persuasion that Respondent

intentionally discriminated against him based on race, sex, or

age. See McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973);

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

(1981). To meet this burden, Petitioner can produce either

direct or circumstantial evidence of discrimination. In this

case no direct evidence was shown. Therefore, the case must be

analyzed under the shifting burden framework established by the

United States Supreme Court in McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973). See, e.g. , Schoenfeld v. Babbit , 168 F.3d

1257, 1267 (11th Cir. 1999); and Clark v. Coats and Clark, Inc. ,

990 F.2d 1217, 1226 (11th Cir. 1993).

34. The McDonnell shifting burden framework is as follows:

(a) the claimant has the initial burden of establishing a prima

facie case of discrimination; (b) if the claimant establishes a

prima facie case, the burden shifts to the employer to

articulate a legitimate, non - discriminatory rea son the

claimant's rejection; and (c) if the employer successfully

articulates such a reason, then the burden shifts back to the

claimant to show that the proffered reason is a pretext for

unlawful discrimination. See , e.g. , McDonnell Douglas Corp. ,

411 U .S. 792(1973); Texas Dept. of Community Affairs v. Burdine ,

450 U.S. 248 (1981); and Schoenfeld v. Babbit , 168 F.3d 1257

(11th Cir. 1999).

35. Under federal law, a claimant establishes a prima

facie case in a traditional failure - to - hire case by showing

that: (a) the claimant was a member of a protected class; (b)

the claimant applied and was qualified for a position for which

the employer was accepting applications; (c) despite the

claimant's qualifications, the claimant was not hired; and (d)

after the claimant's rejection, the position remained open or

was filled by a person outside the protected class. See

Schoenfeld v. Babbitt , 168 F.3d 1257, 1267 (11th Cir. 1999).

With respect to age discrimination, the FCHR has expanded the

scope of protection un der Chapter 760, for individuals subject

to its provision, by providing protection for persons of all

ages. See , e.g. , Sims v. Niagara Lockport Industries, Inc. ,

8 F.A.L.R. 3588 (Fla. Comm. Hum. Relations 1989); and Spears v.

Ewell Industries, Inc. , 12 F .A.L.R. 432 (Fla. Comm. Hum.

Relations 1989).

36. Review of the entire record indicates that Petitioner

has not presented a prima facie case of discrimination based on

his race. In fact, he conceded at the final hearing that he

does not believe Responden t discriminated against him based on

his race. Indeed, there is no record evidence indicating the

race of Ms. Mills or Ms. Doyle.

37. Additionally, Petitioner conceded in his post - hearing

submission that Respondent did not discriminate against him when

i t hired Ms. Mills to fill position #2055. Competent evidence

confirms that position #2055 was filled before Petitioner filed

his employment application.

38. In regard to position #2129, it is arguable that

Petitioner has presented a prima facie case of discrimination

based on sex and age. As a 73 - year - old male, Petitioner was a

member of a protected age group. He applied and was qualified

to work as a behavioral specialist. He was not hired. Instead,

Respondent hired Ms. Doyle, who is a female in he r twenties.

39. However, the most persuasive evidence indicates that

Respondent had legitimate, non - discriminatory reasons for not

hiring Petitioner. First, Petitioner's application was not

among those ultimately considered for position #2129 because

M s. Stodard only considered the recently submitted applications

once the position was taken off hold. Second, Ms. Stoddard

would not have interviewed Petitioner in any event based on her

prior review of Petitioner's application because he only lasted

a few month at his last two jobs.

40. Petitioner made no attempt to show that Respondent's

reasons for not hiring him were pretextural. See Issenbergh v.

Knight - Ridder Newspaper Sales, Inc. , 97 F.3d 436 (11th Cir.

1996)("Conclusory allegation of [age] discr imination, without

more, are not sufficient to raise an inference of pretext or

intentional discrimination where [a defendant] has offered

extensive evidence of legitimate, non - discriminatory reasons for

its actions.")(quoting Young v. General Foods Corp. , 840 F.2d

578, 584 (11th Cir. 1989)("Once a legitimate, non - discriminatory

reason for dismissal is put forth by the employer, the burden

returns to the plaintiff to prove by significant probative

evidence that the proffered reason is a pretext for

discrimi nation.")

41. Indeed, the 11th Circuit has squarely held that "job

skipping" is a legitimate basis upon which to distinguish among

applicants:

Here, the proffered reason clearly meets the

test of being one that might motivate a

reasonable employer. I ndeed, leaving

several employers in a recent and short

period of time, or job - skipping, is an

eminently reasonable basis upon which to

choose between job applicants . . .

Furthermore, it makes sense for an employer

to be concerned about how often an applic ant

has changed employers in recent years,

instead of his career total or average. An

employer could reasonably conclude that a

job applicant who has not stayed with any

recent employer for very long is unlikely to

stay with it for long, either, and that what

the applicant will do in the near - and mid -

range future is better predicted from recent

behavior than from what happened ten or

twenty years ago.

Chapman v. AI Transport , 229 F.3d 1012, 1031 (11th Cir. 2000).

42. Moreover, it is not the role of th e courts to second -

guess an employer's business judgment. In Chapman , 229 F.3d at

1030, the 11th Circuit reiterated that:

[f]ederal courts 'do not sit as a super -

personnel department that reexamines an

entity's business decisions. No matter how

medieval a firm's practices, no matter how

high - handed it decisional process, no matter

how mistaken the firm's managers, the ADEA

does not interfere. Rather our inquiry is

limited to whether the employer gave an

honest explanation of its behavior.

See also Elro d v. Sears, Roebuck & Co. , 939 F.2d 1466, 1470

(11th Cir. 1991); Nix v. WLCY Radio - Rahall Communications , 738

F.2d 1181, 1187 (11th Cir. 1984)(An "employer may fire an

employee for a good reason, a bad reason, a reason based on

erroneous facts, or for no r eason at all, as long as its action

is not for a discriminatory reason.").

43. Accordingly, Petitioner failed to prove his ultimate

burden that Respondent refused to hire him due to his race, sex

or age. Respondent had legitimate, non - discriminatory reas ons

for not hiring Petitioner. The greatest weight of the evidence

indicates that Respondent did not commit an unlawful employment

practice.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR ente r a final order dismissing the Petition for

Relief.

DONE AND ENTERED this 1st day of October, 2003, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of October, 2003.

CO PIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

W. Douglas Hall, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

D. Pa ul Sondel

2135 Victory Garden Lane

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 ri ght 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.