04-003273
Julie A. Philippart vs.
Department Of Health
Status: Closed
Recommended Order on Tuesday, January 4, 2005.
Recommended Order on Tuesday, January 4, 2005.
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 Parkers 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 Petitioners 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 Petitioners 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 employees
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.
- Date
- Proceedings
- PDF:
- Date: 01/04/2005
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 12/07/2004
- Proceedings: CASE STATUS: Hearing Held.
- 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: 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)
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
-
Stephen W Foxwell, Esquire
Address of Record -
Julie A Philippart
Address of Record