04-003273 Julie A. Philippart vs. Department Of Health
 Status: Closed
Recommended Order on Tuesday, January 4, 2005.


View Dockets  
Summary: Petitioner did not show that she was the victim of age discrimination in the employee hiring process. Recommend that petition be dismissed.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8JULIE A. PHILIPPART, )

12)

13Petitioner, )

15)

16vs. ) Case No. 04 - 3273

23)

24DEPARTMENT OF HEALTH, )

28)

29Respondent. )

31)

32RECOMMENDED ORDER

34Pursuant to notice, Administrative Law Judge Don W. Davis of

44the Division of Administrative Hearings (DOAH) conducted the final

53hearing in this case on December 7, 2004, in Pensacola, Florida.

64The following appearances were entered.

69APPEARANCES

70For Petitioner: Julie A. P hilippart, pro se

78303 Washington Avenue

81Gulf Breeze, Florida 32561

85For Respondent: Stephen W. Foxwell, Esquire

91Department of Health

944052 Bald Cypress Way, Bin A02

100Tallahassee, Florida 32399 - 1703

105STATEMENT OF THE ISSUE

109The issue for determination is whether Petitioner was

117subjected to employment discrimination by the Department of Health

126(Re spondent), due to Petitioner's age in violation of Section

136760.10, Florida Statutes.

139PRELIMINARY STATEMENT

141Petitioner filed a Charge of Discrimi nation against

149Respondent with the Florida Commission on Human Relations (FCHR)

158on February 18, 2004. The Charge of Discrimination alleged

167discrimination by Respondent against Petitioner with regard to her

176application for employment on the basis of age.

184On August 22, 2004, Petitioner requested that FCHR, as

193authorized by Section 760.11(4)(b) and (8), Florida Statutes,

201forward the Charge of Discrimination to DOAH for formal

210administrative proceedings in the absence of action by FCHR

219within 180 days of the filing of the Charge of Discrimination.

230By Transmittal of Petition, dated September 17, 2004, FCHR

239forwarded the Charge of Discrimination to DOAH where the matter

249was given Case number 04 - 3273, and assigned to the undersigned

261for further proceedings. Fin al hearing was scheduled to

270commence on December 7, 2004, a delay occasioned by hurricane

280damage to the City of Pensacola.

286During the final hearing, Petitioner testified on her own

295behalf, presented testimony of nine witnesses and offered seven

304exhibits, all of which were admitted into evidence. Respondent

313presented testimony of four witnesses, but presented no

321evidentiary exhibits. No transcript of the proceeding was

329provided.

330Respondent filed a Proposed Recommended Order. At the time

339of preparation of this Recommended Order, no post - hearing

349submission had been filed on behalf of Petitioner.

357References to Florida Statutes are to the 2004 edition

366unless otherwise designated.

369FINDINGS OF FACT

3721. Julie A. Philippart (Petitioner) was born May 12, 195 6.

3832. Respondent is an agency of the State of Florida with a

395medical laboratory located in Pensacola, Florida.

4013. The director of the laboratory is Dr. John Parker, age

41265. When the position of Medical Laboratory Scientist II needed

422to be filled, P arker delegated responsibility for screening

431applicants and determining the best applicant to be hired to

441Dr. Leah Gillis, age 51.

4464. Gillis, proceeded with Parker’s approval, to enlist two

455other fellow employees, Beverly Butler, age 62, and Bill

464Nakash ima, to assist in the interviewing and screening of

474applicants.

4755. Following advertisement of the vacancy and receipt of

484applications, six of the applicants were selected for an

493interview. While a step in the process, the subsequent

502interviews were not completely determinative of which applicant

510was the best. Petitioner was one of the six applicants

520interviewed.

5216. Gillis and Nakashima interviewed Petitioner. After the

529initial interviews, Petitioner was considered the primary

536candidate. Since Peti tioner had previously worked in the

545laboratory during the period 1994 - 1998, Gillis checked with

555Parker and Butler about Petitioner’s prior work experience.

563Further, Butler checked past lab records for work that

572Petitioner may have performed.

5767. As a re sult of her consultations with Parker and

587Butler, Gillis developed concerns that Petitioner’s experience

594and background might not be as ideal as indicated by the

605interview. Particularly, Butler had expressed concern that

612Petitioner did not have a hematolo gy license, which was needed

623in the lab following the resignation of another employee whose

633licensure in that area previously covered this need for the lab.

6448. While still considering Petitioner as an applicant,

652Gillis resolved to interview other candid ates. Through Butler,

661contact was made with Virginia Winchester, age 50, regarding the

671position. Winchester had the appropriate hematology license and

679experience for the position. But, when Winchester was advised

688that she should get vaccinations for rab ies and hepatitis to

699work in the position, she consulted with her physician and

709withdrew her application.

7129. Stephanie Bubien was another applicant considered for

720the position. She had the appropriate license and experience,

729but, because her current em ployer increased her salary, withdrew

739her application following offer of the position.

74610. Linda Boutwell, personnel liaison for the lab and Star

756Metcalfe, assistant human resource director, located in

763Jacksonville and Tallahassee, Florida, respectively, advised

769Gillis to re - advertise the position.

77611. Gillis re - advertised the position. Of six additional

786applicants for the position, two were granted interviews.

794Patricia Jones was called in for a second interview. Jones,

804like Petitioner, is over age 40 and is less than two years

816younger than Petitioner.

81912. Jones had the preferred hematology license and 16

828years of “bench” or actual experience. Jones was offered and

838accepted the position. Age was not a criterion for the position

849and was not consi dered in the hiring decision.

858CONCLUSIONS OF LAW

86113. The Division of Administrative Hearings has

868jurisdiction over the parties to and the subject matter of these

879proceedings. §§ 120.569 and 120.57(1), and Chapter 760, Fla.

888Stat.

88914. Chapter 760, Flor ida Statutes, the "Florida Civil

898Rights Act of 1992," provides security from discrimination based

907upon race, color, religion, sex, national origin, age, handicap,

916or marital status.

91915. The adverse effectuation of an employee’s

926compensation, conditions, and privileges of employment on the

934basis of age is an unlawful employment practice.

94216. The burden of proof rests with Petitioner to show a

953prima facie case of employment discrimination. After such a

962showing by Petitioner, the burden shifts to Responden t to

972articulate a nondiscriminatory reason for the adverse action.

980If Respondent is successful and provides such a reason, the

990burden shifts again to Petitioner to show that the proffered

1000reason for adverse action is pretextual. School Board of Leon

1010Coun ty v. Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981).

102217. The Supreme Court of the United States has recognized

1032that direct evidence of discrimination is extremely rare. As a

1042consequence, the Supreme Court in McDonnell Douglas Corp. v.

1051Green , 411 U.S. 792 (19 73), articulated a method by which

1062complainants, such as Petitioner in this case, might establish a

1072rebuttable presumption of discrimination. That method requires

1079that Petitioner show (a) that she is a member of a protected

1091class; (b) that she has been su bjected to adverse employment

1102action; (c) that she was treated differently than employees not

1112a member of the protected class; and (d) that there is evidence

1124of a causal connection between Petitioner's protected status and

1133her disparate treatment.

113618. Pet itioner has failed to offer credible evidence that

1146rejection of her employment application was based on her age.

1156As a consequence, it is concluded that Petitioner has not shown

1167that Respondent's rejection of her employment application was a

1176pretext to the exercise of employment discrimination on the

1185basis of age.

1188RECOMMENDATION

1189Based on the foregoing Findings of Fact and Conclusions

1198of Law, it is RECOMMENDED:

1203That a final order be entered dismissing the Petition

1212for Relief.

1214DONE AND ENTERED this 4th day of January, 2005, in

1224Tallahassee, Leon County, Florida.

1228S

1229DON W. DAVIS

1232Administrative Law Judge

1235Division of Administrative Hearings

1239The DeSoto Building

12421230 Apalachee Parkway

1245Tallahassee, Florida 32399 - 3060

1250(850) 488 - 967 5 SUNCOM 278 - 9675

1259Fax Filing (850) 921 - 6847

1265www.doah.state.fl.us

1266Filed with the Clerk of the

1272Division of Administrative Hearings

1276this 4th day of January, 2005.

1282COPIES FURNISHED :

1285Julie A. Philippart

1288303 Washington Avenue

1291Gulf Breeze, Florida 32561

1295Stephen W. Foxwell, Esquire

1299Department of Health

13024052 Bald Cypress Way, Bin A02

1308Tallahassee, Florida 32399 - 1703

1313Denise Crawford, Agency Clerk

1317Florida Commission on Human Relations

13222009 Apalachee Parkway, Suite 100

1327Tallahassee, Florida 32303 - 4149

1332Ceci l Howard, General Counsel

1337Florida Commission on Human Relations

13422009 Apalachee Parkway, Suite 100

1347Tallahassee, Florida 32303 - 4149

1352NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1358All parties have the right to submit written exceptions within

136815 days from the date of this Recommended Order. Any exceptions

1379to this Recommended Order should be filed with the agency that

1390will issue the final order in this case.

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PDF
Date
Proceedings
PDF:
Date: 02/23/2005
Proceedings: Agency Final Order filed.
PDF:
Date: 02/22/2005
Proceedings: Agency Final Order
PDF:
Date: 01/04/2005
Proceedings: Recommended Order
PDF:
Date: 01/04/2005
Proceedings: Recommended Order (hearing held December 7, 2004). CASE CLOSED.
PDF:
Date: 01/04/2005
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/15/2004
Proceedings: Proposed Recommended Order filed.
Date: 12/07/2004
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/30/2004
Proceedings: Notice of Respondent`s Exhibit filed.
PDF:
Date: 11/30/2004
Proceedings: Pre-Hearing Stipulation filed.
PDF:
Date: 10/12/2004
Proceedings: Order Denying Motion for Recommended Order of Dismissal.
PDF:
Date: 10/08/2004
Proceedings: Motion for Recommended Order Dismissing Petition filed.
PDF:
Date: 10/06/2004
Proceedings: Letter to Elaine Richbourg from D. Crawford confirming the request for Court Reporter services filed.
PDF:
Date: 10/04/2004
Proceedings: Notice of Appearance (filed by S. Foxwell, Esquire, via facsimile).
PDF:
Date: 10/04/2004
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/04/2004
Proceedings: Notice of Hearing (hearing set for December 7, 2004; 10:00 a.m.; Pensacola, FL).
PDF:
Date: 10/01/2004
Proceedings: Order Granting Extension of Time. (Order is granted, parties shall reply to the initial order by October 13, 2004)
PDF:
Date: 10/01/2004
Proceedings: Response to Initial Order (filed by S. Foxwell via facsimile).
PDF:
Date: 09/29/2004
Proceedings: Motion for Extension of Time to file Response to Initial Order (filed by Respondent via facsimile).
PDF:
Date: 09/21/2004
Proceedings: Initial Order.
PDF:
Date: 09/20/2004
Proceedings: Transmittal of Petition filed by the Agency.
PDF:
Date: 09/20/2004
Proceedings: Amended Employment Charge of Discrimination filed.
PDF:
Date: 09/20/2004
Proceedings: Election of Rights Form filed.
PDF:
Date: 09/20/2004
Proceedings: Petition for Relief filed.

Case Information

Judge:
DON W. DAVIS
Date Filed:
09/20/2004
Date Assignment:
09/21/2004
Last Docket Entry:
02/23/2005
Location:
Pensacola, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (4):