05-002022 Richard Hargrove vs. Department Of Highway Safety And Motor Vehicles Status: Closed Recommended Order on Tuesday, October 10, 2006.

Summary: Petitioner did not demonstrate that Respondent`s failure to promote hime was based on retaliation for past civil rights claims.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD HARGROVE , )

)

Petitioner , )

)

vs. ) Case No. 05 - 2022

)

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES , )

)

Respondent . )

)

RECOMMENDED O RDER

A formal hearing was conducted in this case on February 13

through 16, 2006, in Bartow, Florida, before Lawrence P.

Stevenson, a duly - designated Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rob ert H. Grizzard, II, Esquire

Robert H. Grizzard, II, P.A.

Post Office Box 992

Lakeland, Florida 33802 - 0992

For Respondent: Carol A. Field, Esquire

Valerie J. Martin, Esquire

Office of the Attorney General

110 Southeast 6th Street, 10th Floor

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful

employment practice contrary to Section 760.10, Florida Statutes

(2004), 1 by retaliating against Peti tioner because he engaged in

protected activity.

PRELIMINARY STATEMENT

On October 26, 2004, Petitioner Richard Hargrove

("Petitioner") filed an Amended Employment Charge of

Discrimination against Respondent Department of Highway Safety

and Motor Vehic les (the "Department"). Petitioner alleged that

the Department had denied him several promotions for which he

had applied and was qualified, in retaliation for an earlier

complaint he had filed alleging discrimination due to a

perceived handicap.

On Ap ril 25, 2005, the Florida Commission on Human

Relations ("FCHR") issued a Determination: No Cause, finding no

reasonable cause to believe that an unlawful employment practice

occurred. On May 26, 2005, Petitioner filed a Petition for

Relief with FCHR.

On June 2, 2005, FCHR referred the case to the Division of

Administrative Hearings. The hearing was initially scheduled to

be held on August 16 through 18, 2005. The matter was continued

twice before being held on February 13 through 16, 2005.

On Febru ary 7, 2006, an Order on the Department's Motion in

Limine was entered. The Order stated that Petitioner would not

be allowed to present evidence on issues that predated the

Settlement Agreement and Release entered into by the parties on

July 8, 2003, to settle the complaint filed by Petitioner in the

Circuit Court for the Tenth Judicial Circuit, in and for Polk

County, Case No. GC - G - 00 - 0141. The Order further stated that

Petitioner could obtain affirmative relief only as to matters

that occurred within 3 65 days before the filing of the Amended

Employment Charge of Discrimination on October 25, 2004. 2

However, the Order also stated that Petitioner would be

permitted to present evidence on matters that occurred between

the date of the Settlement Agreement and Release and the date

the Amended Employment Charge of Discrimination was filed, but

only to extent such evidence supported Petitioner's claims

regarding a pattern of discrimination by the Department.

At the hearing, Petitioner testified on his own beh alf and

presented the testimony of Patricia Connery, Charles Gowan, and

Gary Konopka, all employees of the Department. Petitioner's

Exhibits 2 through 13 were admitted into evidence. Petitioner's

Exhibits 12 and 13 were admitted under seal, to preserve t he

confidentiality of "examination questions and answer sheets"

pursuant to S ubs ection 119.071(1)(a), Florida Statutes (2006).

The undersigned reserved ruling on the admission of Petitioner's

Exhibit 1, which is hereby admitted.

The Department presented the testimony of Margaret Lamar,

Dennis Valente, Danny Watford, Deborah Todd, Eileen Bishop,

Clyde Schmitz, Erwin Robcke, and Richard Roth, all employees of

the Department at the times relevant to this proceeding. The

Department's Exhibits 2, 3, 5 through 18 (including 16A),

20 through 31, 33 and 34 were admitted into evidence at the

hearing.

A Transcript of the hearing was filed on March 24, 2006.

The Department timely filed its Proposed Recommended Order on

April 3, 2006. Petitioner untimely filed his Proposed

Recommended Order on April 10, 2006. No objection having been

raised to the late filing, Petitioner's Proposed Recommended

Order has been accepted.

FINDINGS OF FACT

1. The Department is an employer as that term is defined

in Subsection 760. 02(7), Florida Statutes.

2. Petitioner was hired by the Department in 1978 as an

Examiner I in Bartow and has continuously worked for the

Department since his hiring. He held various positions within

the Department through the years, including Supervi sor I and

Assistant Regional Administrator.

3. In 1998, Petitioner held the position of Hearing

Officer in the Bureau of Administrative Review. In February

1998, Petitioner suffered a heart attack and underwent open

heart surgery for the placement of two stents to repair the

blockage to his arteries. On April 7, 1998, Petitioner

submitted to Tommy Edwards, assistant director of the Division

of Driver Licenses, a letter requesting a voluntary demotion

from Hearing Officer to a word processing position, in order to

reduce the stress and pressure of his employment. Petitioner's

request was granted.

4. Later in 1998, Petitioner's health improved and he

began applying for promotions, but was consistently passed over.

He learned that for one Examiner I posit ion, he had been the top

candidate , but was not selected because of the letter he had

written to Mr. Edwards and because Mr. Edwards had expressed

concerns about placing Petitioner in a high stress position.

Petitioner wrote a second letter to Mr. Edwards , dated

February 9, 1999, to clarify that his physician had given him a

clean bill of health, with no restrictions as to the type of job

he was able to handle.

5. This situation led to Petitioner's filing a complaint

against the Department in 2000, in the Circuit Court for the

Tenth Judicial Circuit, in and for Polk County , Case

No. GC - G - 00 - 0141, based on 42 U.S.C. §§ 12111 et seq ., the

Americans with Disabilities Act, and Chapter 760, Florida

Statutes, the Florida Civil Rights Act. On July 8, 2003, the

parties entered into a Settlement Agreement and Release

resolving this litigation. As a condition of the settlement,

Petitioner agreed to release all claims against the Department

connected with his complaint.

6. The Amended Employment Charge of Discrimi nation, filed

on October 26, 2004, with the FCHR, alleges that the Department

has denied Petitioner promotions and transfers in retaliation

for his previous complaint.

7. At the final hearing, testimonial and documentary

evidence was elicited as to Petiti oner's applications for six

positions within the Department. The selection processes for

four of the positions, 903481, 2333, 902315, and 2986, occurred

after the Settlement Agreement and Release was signed and less

than 365 days before the Amended Employ ment Charge of

Discrimination was filed. The Selection processes for two of

the positions, 5350 and 5234, occurred after the Settlement

Agreement and Release was signed , but more than 365 days before

the Amended Employment Charge of Discrimination was fil ed.

Evidence concerning the latter two positions was admitted for

the limited purpose of demonstrating a pattern of discrimination

by the Department.

8. The Department's selection process for an open position

commences with advertising the opening. Appl icatio ns are

received , and a Department employee conducts an initial

screening of the applications to determine which candidates meet

the minimum qualifications for the position in question. Those

applications passing the initial screening are then subjec ted to

a detailed screening in which they are scored according to work

experience and the knowledge, skills and abilities pertinent to

the position, as well the state - mandated veterans' preference.

The Department personnel in charge of filling the positio n set a

cutoff score to ensure an adequate pool of interviewees, then a

panel conducts interviews of the selected applicants. These

interviews are scored, and the highest scoring candidate is

generally offered the position. The Department does allow the

second highest scoring candidate to be selected, if his or her

score was within 10 points (on a 100 - point scale) of the highest

ranked applicant.

9. The applicant interviews are not free - form, but are

conducted according to a process dictated by the Depar tment.

For the positions in question, the Department provides the

interview panel with a list of five questions. Each candidate

is given the list of questions and has fifteen minutes to read

them and prepare a response. The interview panel then meets

wi th the candidate, asks each question and listens to the

answers. The interviewers then score the responses according to

an answer key provided by the Department, which contains several

"correct" answers to each question. A candidate may receive

full or p artial credit for his responses, depending on how many

of the correct answers he provides. The candidates may also be

given written exercises that are graded and scored by the

interview panel. Each candidate for a given position is

provided the same set of questions and written exercises.

10. The entire selection process, from initial screening

of all applicants to final interview scores and selection of the

successful applicant, is recorded on a spreadsheet document

called the Applicant Selection Guide ("ASG"). Department policy

provides that an existing ASG may be used to fill a subsequent

comparable position, provided the second position is filled

within six months of the process that generated the ASG, and the

candidate who fills the second position is the highest ranked

candidate remaining on the ASG, or is within 10 points of that

candidate.

11. The first position Petitioner applied for was position

5350, a compliance examiner position in Pinellas County for the

Division of Motor Vehicles. The a pplication deadline was

June 4, 2003. Out of 162 applicants, five were selected for

interviews, including Petitioner. At the conclusion of the

interview process, 3 the highest scoring candidate was Gary

Konopka. Petitioner and Allen Shaffer tied for seco nd. The

position was offered to Mr. Konopka, who declined it for

personal reasons. The position was then offered to Mr. Shaffer,

who accepted it. 4

12. Richard Roth was the regional administrator for the

Division of Motor Vehicles at the time position 53 50 was filled.

He retired in August 2003, shortly Mr. Shaffer was hired.

Mr. Roth testified that he made the decision to hire

Mr. Shaffer, but had no present recollection of how he decided

to break the tie between Petitioner and Mr. Shaffer. Mr. Roth

h ad no knowledge of Petitioner's complaint of discrimination , or

of his lawsuit agai nst the Department. Assistant Bureau Chief

Edwin Robcke, Bureau C hief Charles Gowan, and Margaret Lamar,

the senior consultant in the office of employee relations , who

inve stigates discrimination charges within the Department, all

testified that they were unaware of any Department - established

procedure for breaking tie scores between applicants.

13. Petitioner next applied for position 5234, an

operations analyst 5 position in Hillsborough County for th e

Division of Driver Licenses' Bureau of Administrative R eviews.

The application deadline was October 31, 2003. Deborah Todd,

the program manager who would be the direct supervisor of the

employee hired to fill position 5234, performed the detailed

screening of the applications. Out of 113 applicants, five were

selected to be interviewed, including Petitioner.

14. Ms. Todd conducted the interviews along with Eileen

Bishop, an operations analyst in the bureau of administrat ive

reviews. Stephen Walter was the top scoring candidate, but a

recent disciplinary action in his current job rendered him

ineligible for the promotion that position 5234 would have

offered. Ms. Todd made the decision to offer the position to

Deborah Le to, who had the second highest score. Ms. Leto

accepted the position. Petitioner finished fifth out of the

five candidates interviewed, 6 and was notified by letter dated

January 2, 2004, that he had not been selected for the position.

15. At the hearing , Ms. Todd testified that Petitioner's

interview was "fair," in the sense of "not bad." His answers to

the oral questions were too short, but he did receive the

maximum points possible for his written work exercise.

Ms. Bishop likewise testified that Pe titioner did "fair" on his

interview. Ms. Todd testified that she had not met Petitioner

before the interview and had no knowledge of his prior lawsuit

against the Department.

16. Petitioner next applied for position 902315, a

compliance examiner positio n in Orange County for t he Division

of Motor Vehicles' Bureau of Field O perations. The application

deadline was March 4, 2004. The ASG for position 902315

indicates that the interview process was conducted by Department

employees Donn Lund and Marie Smit h of the Winter Park office.

Neither Mr. Lund nor Ms. Smith was called to testify in this

proceeding.

17. The ASG indicates that approximately 12 5 people

submitted applications and that 11 applicants were interviewed.

Petitioner had the highest screenin g score of any candidate.

However, it appears that once again Petitioner's interview was

less than impressive. The successful applicant, Esteban Capo,

received a score of 90 out of a possible 100 points. Petitioner

received a score of 37 points, placing him in a tie for last

place among the candidates interviewed.

18. At the hearing, Petitioner's recollection of his

interview for position 902315 was lacking in detail. He simply

testified that he recalled nothing untoward occurring during the

intervie w that would account for his low score.

19. Petitioner next applied for position 2333, a

compliance officer position in Hillsborough County for t he

Division of Motor Vehicles' Bureau of Field O perations. The

application deadline was June 16, 2004. Out o f 190 applicants,

five were selected for interviews, including Petitioner. In the

detailed screening, Petitioner scored 83 points, which tied him

for the high score with Lina Botero.

20. Ms. Botero had the high score for the interview

process, scoring 82 .08 points, was offered position 2333, and

accepted the position. Thomas Thayer had the second highest

score, with 74.96 points. In August 2004, the ASG for position

2333 was used by region administrator Gary Konopka to fill the

opening for position 5350 created by the promotion of Allen

Shaffer to a field supervisor position. Position 5350 was

offered to Mr. Thayer, who accepted the position.

21. In the interview process for position 2333, Petitioner

scored 60.84 points, finishing fourth out of the fiv e applicants

interviewed. The interviewers for position 2333 were

Mr. Konopka, field supervisor Clyde Schmitz, and Kelly Cook, who

no longer works for the Department and did not testify in this

proceeding. Mr. Schmitz testified that he had no recollecti on

of Petitioner's interview for the position.

22. Mr. Konopka recalled that Petitioner's answers to the

interview questions were "very curt, very brief, almost as if he

were going through the motions." In contrast, Ms. Botero was

extremely animated an d very talkative. Mr. Konopka pointed out

that the scoring criteria award points for multiple responses

from a candidate, and , thus , Ms. Botero was better served by

speaking more. As Mr. Konopka put it, "the more you talk, the

better off you are because you may stumble into the answer."

Mr. Konopka recalled that Mr. Thayer was a little nervous, but,

like Ms. Botero, he gave several answers during the oral

questions. Mr. Konopka characterized Mr. Thayer's written

submissions as "superb."

23. Mr. Konop ka testified that he knew nothing of

Petitioner's complaint against the Department at the time of t he

interviews for position 2333 and that none of the members of the

interview panel discussed Petitioner's complaint.

24. Petitioner next applied for posit ion 2986, a senior

highway safety specialist position in Orange County 7 for the

Division of Motor Vehicles. The application deadline was

June 29, 2004. Out of 31 applicants, five were selected to be

interviewed. Petitioner was not selected for an inter view.

25. Dennis Valente, chief i nvestigator of the Division of

Driver Licenses, conducted the screening for position 2986.

Mr. Valente testified that, after an initial screening to make

sure the candidates met the bare minimum qualifications for the

jo b, he then conducted a detailed screening to ascertain the

candidates' education, experience, and special knowledge, skills

and abilities. After the detailed screening was completed,

Mr. Valente set a cut - off score to ensure that five to seven

candidates were interviewed. Mr. Valente did not know

Petitioner and was not aware that Petitioner had filed a

complaint against the Department. 8

26. For position 2986, the cut - off score was established

as 88 out of a possible 100 points and five candidates were

i nterviewed. Petitioner's score on the detailed screening was

72 points.

27 . Mr. Valente recalled that Petitioner received maximum

scores for four out of five of the "experience" factors on the

detailed screening, but that he received no points for

educat ion. Petition er is a high school graduate and points were

available only for post - secondary education. 9 The successful

applicant for position 2986, Clark Brookstone, had a master's

degree in mass communication, in addition to his bachelor's and

associate of arts degrees.

28 . Petitioner next applied for position 903481, an

operations and management consultant position in Hillsborough

County for th e Division of Driver Licenses' Bureau of

Administrative R eviews. The application deadline was July 6,

2004. Out of 66 applicants, seven were selected for interviews.

Petitioner was not selected for an interview.

29 . Danny Watford, c hief of the Bureau of Administrative

R eviews, performed the screening, then conducted the interviews

for position 903481 with Debo rah Todd. Mr. Watford testified

that he performed no initial screening, and that every candidate

received a detailed screening. At the time of the screening,

Mr. Watford did not know that Petitioner had filed a complaint

of discrimination. Mr. Watford s et the cut - off for obtaining an

interview at 40 points. Petitioner received 24 points on his

detailed screening.

30 . Mr. Watford testified that Petitioner was minimally

qualified for the job, but that the job opportunity announcement

stated a preference for a candidate with a bachelor's degree.

The successful candidate, Gordon Brown, had a bachelor of

science degree from California State University at Fullerton.

As noted above, Petitioner is a high school graduate.

31 . At the final hearing, Petitioner listed eight other

positions for which he applied and was not offered the job.

These positions were not applied for or filled within the time

frame pertinent to this proceeding.

32 . Petitioner conceded that there was no direct evidence

of discriminatory or retaliatory intent on the part of the

Department employees who conducted these employment screenings

and interviews. In fact, those Department employees who were

familiar with Petitioner spoke highl y of his work. Charles

Gowan, Bureau Chief of Field O perations, testified that

Petitioner has done a good job as an employee in his bureau. 10

On August 8, 2003, Mr. Gowan awarded Petitioner with a letter of

commendation for Petitioner's work as temporary office manager

for the Lakeland driver license office .

33 . Patricia Connery, a senior highway safety specialist

with the Department, testified that Petitioner had done a good

job as her supervisor in 1994.

34 . Ms. Connery also testified that she obtained her

current position through a telephone intervi ew, without going

through a formal application and interview process. Petitioner

contends that this incident, coupled with the unexplained method

used to break the tie between Petitioner and Mr. Shaffer for

position 5350 , and the alleged subjectivity of t he interview

process, demonstrates that the Department's selection process is

a sham designed to allow the Department's administrators to hire

whom they please without regard to the candidates' merits. In

this instance, Petitioner alleges, the sham proces s was employed

to retaliate against him for having brought a discrimination

complaint and lawsuit against the Department.

35 . The evidence established that there were minor

variations among the Department's offices as to the precise

methodology employed i n the hiring process. However, the

evidence also established that the process was internally

consistent, i.e., any local variations in the process were

uniformly applied to all applicants for a given position.

Ms. Connery's internal promotion by means o f a telephone

i nterview was an aberration and was unrelated to any position

for which Petitioner was a candidate.

36 . Petitioner contends that someone in the Department's

central office in Tallahassee was the real decision maker for

these positions, and i n each case insured that Petitioner was

not the successful applicant. The evidence did not support this

contention. In each instance, the hiring decision was made by

the senior employee on the interview committee at the district

level. While it is true that those decisions were submitted to

Tallahassee for ratification, in no instance was the

district - level decision overturned.

37 . Petitioner did not establish that any of the interview

panel members or candidate screeners was aware of his

discriminatio n complaint or lawsuit at the time their respective

decisions were made. Mr. Gowan was aware of Petitioner's

lawsuit at the time of the interviews for position 2986, but

Petitioner was not interviewed for that position.

38 . The greater weight of the evi dence establishes that,

while Petitioner was at least minimally qualified for the

positions in question, Petitioner's lack of a college degree and

his indifferent interview skills were the chief reasons for his

failure to obtain any of the positions for wh ich he was

interviewed.

39 . The greater weight of the evidence establishes that

the Department personnel conducting detailed screening of

applicants considered only Petitioner's application and

accompanying materials submitted by Petitioner in determini ng

whether , or not Petitioner should be interviewed. Petitioner's

applications were treated no differently than the applications

of other candidates.

CONCLUSIONS OF LAW

40 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

41 . The Florida Civil Rights Act of 1992 (the Florida

Civil Rights Act or the Act), Chapter 760, Florida Statutes,

prohibits discrimination in the workplace. S ubs ection

760.11(1) , Florida Statutes, provides that any person aggrieved

by a violation of the Act must file a complaint within 365 days

of the alleged violation.

42 . Subsection 760.10(7), Florida Statutes, states the

following:

It is an unlawful employment practice for a n

employer, an employment agency, a joint

labor - management committee, or a labor

organization to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

perso n has made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this section.

43 . Respondent is an "employer" as defined in Subsection

760.02(7), Florida Statutes, which provides the following:

(7 ) "Employer" means any person [11] employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

44 . Florida courts have determined that federal case law

applies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973), applies to claims arising under Section 760.10, Florida

Statutes. See Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d

1353, 1361 (S.D. Fla. 2002); Florida State University v. Sondel ,

685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Florida Department

of Commu nity Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991).

45 . Under the McDonnell analysis, in employment

discrimination cases, Petitioner has the burden of establishing

by a preponderance of evidence a prima facie case of unlawful

discrimination. If t he prima facie case is established, the

burden shifts to the Department, as the employer, to rebut this

preliminary showing by producing evidence that the adverse

action was taken for some legitimate, non - discriminatory reason.

If the employer rebuts the prima facie case, the burden shifts

back to Petitioner to show by a preponderance of evidence that

Respondent's offered reasons for its adverse employment decision

were pretextual. See Texas Department of Community Affairs v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

46 . In order to prove a prima facie case of retaliation

under Chapter 760, Florida Statutes, Petitioner must establish

that: (1) he engaged in statutorily protected activity; (2) an

adverse employment action occurred; a nd (3) the adverse action

was causally related to Petitioner's protected activity. See

Gupta v. Florida Board of Regents , 212 F.3d 571, 587 (11th Cir.

2000); Raney v. Vinson Guard Service, Inc. , 120 F.3d 1192, 1196

(11th Cir. 1997); Russell v. KSL Hotel C orporation , 887 So. 2d

372, 379 (Fla. 3d DCA 2004).

47 . Petitioner has failed to prove a prima facie case of

retaliation. To establish such a case, Petitioner needed to

prove that the decision makers were actually aware of his

statutorily protected acti vity (in this case, his filing of a

discrimination complaint and lawsuit) at the time they decided

not to promote him. Clover v. Total System Services, Inc. , 176

F.3d 1346, 1354 (11th Cir. 1999); Raney , 120 F.3d at 1197;

Gaston v. Home Depot USA, Inc. , 12 9 F. Supp. 2d 1355, 1376 (S.D.

Fla. 2001).

48 . Petitioner presented no evidence that any of the

interview panel members , or application screeners were aware of

his protected activity at the time that the decisions were made

not to select Petitioner for th e positions he sought. Of the

Department employees involved in the hiring process who

testified, only Mr. Gowan had knowledge of Petitioner's

discrimination complaint and lawsuit. However, Mr. Gowan was

not involved in the decision to screen out Petition er for

position 2986.

49 . Case law provides that an employer's knowledge of the

protected activity may be established by circumstantial

evidence. Clover , 176 F.3d at 1354; Goldsmith v. City of

Atmore , 996 F.2d 1155, 1163 (11th Cir. 1993). In this case,

Petitioner asserts that the sheer number of his failed

applications established that the decision makers must have been

acting at the direction of the central office in Tallahassee,

which clearly had knowledge of Petitioner's protected

activities. However , this conspiracy theory is unsupported by

the evidence, all of which points to the simpler explan ation

that Petitioner lost in an honest, competitive process to better

qualified candidates.

RECOMMENDATION

Based on the foregoing Findings of Fact an d Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that the Department of Highway

Safety and Motor Vehicles did not commit any unlawful employment

practice and dismissing the Petition for Rel ief.

DONE AND ENTERED this 10 th day of October, 2006, in

Ta llahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 10 th day of October, 2006.

ENDNOTES

1/ Citations, hereinafter, shall be to Florida Statutes (2004)

unless otherwise specified.

2/ The Order erroneously referenced the date that Petitioner

signed the Amended Employment Charge of Discrimination

(October 25, 2004) rather than the date of its filing (October

26, 2004). The one - day difference had no impact in terms of the

affirmative relief available to Petitioner.

3/ The ASG for position 5350 indicated that the interviews were

conducted by Clyde Schmitz and Eric Marlan, both field

supervisors. However, at the hearing Mr. Schmitz testified that

he and Mr. Marlan conducted the screenings, but that regional

administrator Richard Roth took over the process for the

interviews. Mr. Roth, now retired, confirmed that he conducted

the interviews but stated that he had no clear me mory of them

because he was concurrently in the process of interviewing

candidates to succeed him upon his retirement.

4/ Mr. Shaffer held position 5350 until August 2004, when he

was promoted to field supervisor. Position 5350 was then filled

by Tho mas Thayer, who had been the second highest scorer in the

interview process for position 2333 in June 2004, which will be

discussed below.

5/ This position, operations analyst II, is also referred to as

management analyst level 3.

6/ At the hearing, Ms. Todd testified that an error in

calculation made Petitioner's score appear much lower than the

scores awarded to the other four interviewees. As corrected,

Petitioner's score was still fifth best, but was more in line

with the scores of the other can didates.

7/ The job announcement stated that the job could be located in

Orange or Hillsborough County.

8/ Bureau Chief Charles Gowan, who conducted the final

interviews with Mr. Valente, was aware that Petitioner had filed

a lawsuit against the Depar tment. See footnote 10, infra .

However, Mr. Gowan had no involvement in the screening process

for position 2986 and made no mention of Petitioner's lawsuit

during the selection process.

9/ The maximum possible raw score for the detailed screening

was 2 5 points. The raw score was multiplied by four to arrive

at a final score on the detailed screening. The maximum raw

score for education for position 2986 was four points: two for a

bachelor's degree, one for an associate's degree, and one for

special tr aining such as law enforcement. If Petitioner had

been able to score the maximum for education, he would have

totaled 88 points (four raw points, multiplied by four to make

16, added to Petitioner's score of 72) and qualified for an

interview.

10/ Mr. G owan testified that he learned of Petitioner's

complaint and lawsuit only when Petitioner volunteered the

information at their first meeting, when Mr. Gowan had just

taken over as bureau chief and was visiting Petitioner's office.

Mr. Gowan recalled this incident because he found it unusual

that Petitioner, an employee he had just met, would say, "I have

a lawsuit against the Department," suddenly and outside the

context of anything said previously.

11/ "Person" includes "any governmental entity or agenc y."

§ 760.02(6), Fla. Stat.

COPIES FURNISHED :

Robert H. Grizzard, II, Esquire

Robert H. Grizzard, II, P.A.

Post Office Box 992

Lakeland, Florida 33802 - 0992

Carol A. Field, Esquire

Valerie J. Martin, Esquire

Office of the Attorney General

110 Southea st 6th Street, 10th Floor

Fort Lauderdale, Florida 33301

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 Relation s

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 Orde r should be filed with the agency that

will issue the final order in this case.