05-002972 Gabe Kaimowitz vs. Three Rivers Legal Services Status: Closed Recommended Order on Thursday, June 1, 2006.

Summary: Petitioner alleged age and race discrimination, and retaliation, as the reasons Respondent refused to hire him. Held: Petitioner was unsuitable for employment with Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GABE KAIMOWITZ , )

)

Petitioner , )

)

vs. ) Case Nos. 05 - 2170

) 05 - 2972

THREE RIVERS LEGAL SERVICES , )

)

Respondent . )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on March 21 through 23, April 19 , and

21 , 2006, in Gainesville , Florida.

APPEARANCES

For Petitioner: Gabe H. Kaimowitz, Esquire, pro se

Post Office Box 140119

Gainesville, Florida 32614 - 0119

For Respondent: Carla D. Franklin, Esquire

4809 Southwest 91st Terrace

Gainesville, Florida 32608

STATEMENT OF THE ISSUE

The issue is whether Respondent T hree Rivers Legal Services

engaged in unlawful employment practices with regard to

Petitioner.

PRELIMINARY STATEMENT

Petitioner Gabe Kaimowitz ( Attorney Kaimowitz) filed an

Amended Complaint of Employment Discrimination with the Florida

Commission on Hum an Relations (the Commission) on November 17,

2004, which alleged that Respondent Three Rivers Legal Services

(TRLS) discriminat ed against him because of his race (white) and

age. It further alleged that TRLS had retaliated against him.

This was designat ed FCHR Case No. 2004 - 23165 by the Commission.

This Complaint addressed Americorps positions in

Jacksonville and Lake City , that became available in August

2004.

Subsequent to being advised that more than 180 days had

passed without action by the Commiss ion, Attorney Kaimowitz

filed a Petition for Relief on June 13, 2005 . The Petition

requested a hearing before the Division of Administrative

Hearings.

This Petition alleged that he was discriminated against

because of his race, white, and asserted that he represented a

"class of qualified white male applicants for attorney and

paralegal positions who were rejected in favor of less

experienced people of color and white women in the Gainesville

office of Three Rivers Legal Services, since Respondent's

Exe cutive Director was hired in 1997." The executive d irector

of TRLS during times pertinent was Allison Thompson , and she

continues to serve in that capacity .

The Complaint also alleged retaliation. The reason for the

retaliation, he claimed, was his ear lier complaint about age and

race discrimination in not being hired as a fair housing testing

coordinator or fair housing attorney. The retaliation alleged

was that, "(2) TRLS attorneys who had no known personal

knowledge of Petitioner tortuously interfer ed with his

relationship with poor African - American single heads of

households he briefly represented in 2003." He further noted

that Ms. Thompson said she would not consider him for vacancies,

". . . because of criticisms he made in the course of the so -

called FCHR investigation, before this Petition was amended."

He alleged this information was provided to him by Ms. Thompson

on August 2, 2004.

This Petition was transmitted to the Division of

Administrative Hearings and filed on June 16, 2005. This a ction

became DOAH C ase No. 05 - 2170.

On July 27, 2005 , Attorney Kaimowitz filed a n Amended

Petition for Relief subsequent to an "Amended Determination: No

Cause," filed by the Commission on June 29, 2005. This was the

Commission's FCHR Case No. 2004 - 200 32 , and it ultimately became

DOAH C ase No. 05 - 2972.

Attorney Kaimowitz claimed that he was a victim of age and

race discrimination and of retaliation. Specifically, Kaimowitz

claims that TRLS discriminated against him when he was rejected

for two vacanc ies advertised by TRLS for which he applied on

May 10, 2003. One vacancy was for a fair housing attorney and

the other was for a fair housing testing coordinator.

This Amended Petition also asserted that he represented two

subclasses. One , he claimed, c onsisted of a class of qualified

white male applicants for attorney and paralegal positions who

were rejected in favor of less experienced people of color and

white women in the Gainesville Office since the current

e xecutive d irector of TRLS has been in th at position. The

second subclass , he claimed, consisted of qualified applicants

of either gender who are more than 40 years of age.

Attorney Kaimowitz also assert ed that TRLS discriminated

against him because of an alleged hearing deficit. Attorney

Kaimo witz claimed that the cause of the retaliatory conduct was

Ms. Thompson's knowledge of his lawsuits based on age

discrimination against other legal services programs and

specifically her knowledge of a financial settlement he obtained

from Central Florida Legal Services.

This case was filed at the Division of Administrative

Hearings on August 18, 2005.

DOAH Case Nos. 05 - 2170 and 05 - 2972 were consolidated by an

Order of Consolidation , entered by Administrative Law Judge

Michael P. Ruff, on September 15, 2005 . Subsequent to

Petitioner's Application for Disqualification of Judge

P. M. Ruff, with accompanying Affidavit for Disqualification of

Judge P. M. Ruff, Judge Ruff recused himself on September 21,

2005. The case was thereafter assigned to Administrative Law

Judge Harry L. Hooper.

Attorney Kaimowitz filed four motions during the course of

the proceedings demanding that this Administrative Law Judge

disqualify himself. Each was denied because of his failure to

allege any valid reason for disqualification. Each denial was

followed with a motion for reconsideration of the denials , which

were, in turn, denied .

At the hearing, Kaimowitz called Ms. Thompson as a witness

and testified in his own behalf. He had 65 exhibits admitted ,

which are listed as Append ix 1. At his request, a host of

exhibits which were not admitted , are listed as Appendix 2.

TRLS called Ms. Thompson, Mary O'Rourke, and Alan Charles

Hill , and had nine exhibits admitted which are listed as

Appendix 3.

No t ranscript was ordered . At the c ompletion of the

hearing the parties were instructed that proposed recommended

orders were due in ten days without regard to weekends or

h olidays. That period ended May 1, 2006. No proposed

recommended orders were filed.

References to statutes are to Flo rida Statutes (200 3 )

unless otherwise noted.

FINDINGS OF FACT

The Petitioner

1. Attorney Kaimowitz was born on May 5, 1935. He

attended the University of Wisconsin, served in the U. S. Army,

and was a journalist early in his career. He worked to obtai n

voting rights for African - Americans in the Deep South as a

volunteer for the Congress of Racial Equality in the s ummer of

1964.

2. He attended law school at New York University and while

attending law school worked for the New York Civil Liberties

Unio n as an investigator.

3. Upon graduating from law school in 1967, he applied for

membership in the New York State Bar Association and was

eventually admitted .

4. He was employed as a staff attorney with the Center on

Social Welfare Policy and Law in N ew York City. He was

suspended from that position.

5. In 1970 he was awarded a Reginald Heber Smith

Fellowship which took him to Michigan Legal Services in Detroit,

Michigan. He remained there until he took a sabbatical so that

he could complete a Legal Services Corporation Research

Fellowship in 1979 and 1980 , which was located at the University

of North Carolina at Chapel Hill. He could have returned to his

employment at Michigan Legal Services but instead sued that

entity . He also sued Pennsylvania Legal Services , Legal

Services of North Carolina, and the Mental Health Law Project of

the District of Columbia for alleged age discrimination in

hiring .

6 . From December 1980 until 1984 he was employed as

associate counsel for the Puerto Rican Legal Defe nse and

Education Fund in New York and Connecticut. He left there

because of a " labor dispute. "

7 . In March of 1985 he was hired as director of the

Greater Orlando Area Legal Services (GOALS). He was fired in

1986. He sued GOALS, and obtained a financi al settlement.

Subsequently he applied for jobs with Broward County Legal

Services and Central Florida Legal Services. When he was turned

down for those jobs , he sued both entities based on age

discrimination.

8. The action against Central Florida Leg al Services ended

in 1999 or 2000 with a confidential settlement involving the

payment of money to Attorney Kaimowitz . At some point he also

entered into a confidential settlement with Broward Count y Legal

Services.

9. Attorney Kaimowitz claims that the suits he filed

against various legal services programs were based on his

personal m ission to reform the hiring practices of legal

services programs , and he avers that he has been on that mission

since 1980 . Although he claims to have instituted these sui ts

for altruistic motives , many of them resulted in monetary

settlement s that benefited him personally. N one of these suits

were tried to the point that a verdict resulted .

10 . After being fired by GOALS he obtained a master ' s in

communications from the University of Central Florida in 1988.

While attending school he worked as a journalist for the

"Orlando Weekly," a publication targeted to African - Americans in

the Orlando area.

11 . Subsequently Attorney Kaimowitz represented African -

Americans in civil rights actions , including employment

discrimination in the Orlando area . He was in private practice

of law at that time although he had no office. In 1989 or 1990

a court assessed fees against him for engaging in frivolous

litigation.

12 . Attorney Kaimo witz moved to Gainesville because his

domestic partner was seeking a Ph.D. at the University of

Florida. From May 14, 1999, until February 7, 2002, he worked

for Alachua County as an investigator into citizen complaints of

discrimination in housing and pu blic accommodation. He was

terminated from that job because of accusations of " serious

misconduct. " He claimed his discharge from this job was in

retaliation for whistle blowing . He s ued, and received a

monetary settlement.

1 3 . He subsequently and unsu ccessfully sought employment

with the City of Gainesville, the University of Florida, and

with the State of Florida. He had a dispute with the University

of Florida based on the University's failure to publish written

material that he submitted. He filed suits pro se based on age

discrimination against Gainesville for failing to hire him and

against the University of Florida and the Florida Board of

Regents because of the publication dispute and because they

refused to hire him. The suit against the Boar d of Regents was

settled by a monetary payment to him of a confidential sum ,

according to Attorney Kaimowitz .

1 4 . In 1997, Judge Maurice Paul, a U. S. District Judge ,

entered an order forbidding Attorney Kaimowitz from filing pro

se lawsuits in his cour t .

15. Prior to 2003, Attorney Kaimowitz was disciplined by

the Florida Supreme Court on two occasions. A Florida Bar

report dated January 29, 2002, reported a finding on January 3,

2002, of professional misconduct. He was reprimanded for making

a sta tement he knew to be false or with reckless disregard as to

its truth or falsity concerning the integrity of a judge. He

had been previously reprimanded by the Florida Supreme Court in

1998.

1 6 . Attorney Kaimowitz is proud that he has filed

countless mo tions to disqualify judges. He claims he has

succeeded in disqualifying , at one time or another, every judge

in the Middle District of Florida , and several in the Eighth

Judicial Circuit, which includes the Gainesville area.

1 7 . Attorney Kaimowitz agrees with the notion that he is ,

" the most well - known offensive personality in the Eighth

Judicial Circuit ," but asserts that this reputation was not

fully achieved until 2004. This self - characterization is

accepted based on the evidence adduced in this case.

1 8 . Attorney Kaimowitz suffered a hearing loss and began

using hearing aids in 1992. It is found as a fact that he hears

well enough to try a case , which was demonstrated in this case.

At his request, counsel table was moved close to the bench. He

s ubsequently announced that this accommodated his hearing

deficiency .

1 9 . Attorney Kaimowitz was arrested for causing a

disturbance in a Gainesville City Commission meeting in 2002.

He i s very proud of being arrested.

20 . On November 16, 2004, Eighth J udicial Circuit Judge

Larry Gibbs Turner entered an order entitled Sentence on

Judgment of Guilty of Direct and In - Direct Criminal Contempt,

following a Judgment of Guilty of eight separate allegations of

direct and indirect criminal contempt on October 13 , 2004. This

Order recited the following language:

A review of the fifteen (15) volumes of the

record in this cause clearly demonstrates

that throughout these proceedings Mr.

Kaimowitz carefully, willfully, and with

calculation and premeditation abused hi s

status as a lawyer/ pro se litigant in filing

repetitious and frivolous pleadings

including, but not limited to, his repeated

motions to recuse every judge associated

with this case. Mr. Kaimowitz's most recent

effort to recuse this undersigned judge was

framed by his GABE KAIMOWITZ'S APPLICATION

TO DISQUALIFY JUDGE LARRY G. TURNER, FROM

TAKING ANY FURTHER ACTION IN THIS MATTER -

LAWFUL OR UNLAWFUL - BECAUSE THE JURIST HAS

BEEN AND CURRENTLY APPARENTLY IS AN EMPLOYEE

OF THE FLORIDA BOARD OF REGENTS, AND/O R ITS

SUCCESSOR RESPONSIBLE FOR THE UNIVERSITY OF

FLORIDA AND AFFIDAVIT/CERTIFICATE WITH GABE

KAIMOWITZ'S APPLICATION TO DISQUALIFY JUDGE

LARRY G. TURNER, FROM TAKING ANY FURTHER

ACTION IN THIS MATTER - LAWFUL OR UNLAWFUL -

BECAUSE THE JURIST HAS BEEN AND CURRENTLY

APPARENTLY IS AN EMPLOYEE OF THE FLORIDA

BOARD OF REGENTS, AN/OR ITS SUCCESSOR

RESPONSIBLE FOR THE UNIVERSITY OF FLORIDA.

The motions/applications seeking recusal of

each of the judges in this cause provide

ample evidence of Mr. Kaimowitz's "sty le" of

litigation in which he intentionally

confuses, obfuscates, insults, defames, and

makes scurrilous and unsubstantiated claims

against parties, judges, witnesses, and

others related and unrelated to the

litigation. Further evidence is found in

his VE RIFIED MOTION FOR ARREST OF JUDGMENT

BASED ON FRAUD COMMITTED UPON THIS COURT.

Beginning at page 10 of that motion

Mr. Kaimowitz claims that he ". . . has

learned that repeated motions for recusal as

evidence pours in eventually tends to work

in his favo r. For instance, after Judge

Jopling finally recused himself, Kaimowitz

had little difficulty resolving at mediation

the underlying cases. They were assigned to

Judge Turner at the time, but all he did was

agree to the parties' stipulated willingness

to proceed to mediation." Over the

following several pages, Mr. Kaimowitz

recites his history of recusal litigation in

other state and federal cases.

2 1 . Judge Turner permanently enjoined Attorney Kaimowitz

from filing further pro se litigation in the coun ty and circuit

courts of the Eighth Judicial Circuit. Although Judge Turner

based his finding on Kaimowitz v. The Florida Board of Regent s ,

Eighth Circuit Case N o. 01 - 1996 - CA - 3260, he noted a number of

cases involving Attorney Kaimowitz going back to 1996 , including

Eighth Judicial Circuit Case N o. 01 - 2003 - CA - 2400 - A, Gabe

Kaimowitz v. Gainesville, Florida, and the Gainesville Sun , in

which Judge Toby S. Monaco outlined abuses as a basis for his

dismissal of Attorney Kaimowitz's Complaint with prejudice .

T he Respondent and I ts Executive Director, Allison Thompson

2 2 . TRLS exists pursuant to Title 42 U. S. Code, § 2996 et

seq . It is governed, inter alia , by Title 45, Code of Federal

Regulations, § 1600.1, et seq . Its mission is to provide equal

access to the system of justice so that those who are otherwise

unable to afford adequate counsel may have high quality legal

assistance to see k redress of grievances. It receives funding

from the Legal Services Corporation in Washington, D.C. , the

Florida Bar Foun dation, United Way, and other local and national

government sources.

2 3 . TRLS is headquartered in Gainesville, Florida, and

serves eleven mostly rural counties surrounding Alachua County,

as well as Alachua County. It works with other volunteer

agencies and with pro bono attorneys. It is essential to the

success of TRLS that it maintain cordial relations with the

community and the bar.

2 4 . Ms. Thompson hires all of the TRLS management team.

TRLS does not use an application form when seeking applicants

for jobs. Advertisements for positions solicit resumes. TRLS

does not maintain a "pool" of applicants for any particular job.

2 5 . The number of employees at TRLS fluctuates depending

on funding. The racial, age, and gender composition of TRLS

personnel from May 2003 to May 2004, was as follows:

Whites 20

Blacks 19

Asian 2

Hispanic 2

Male 11

Female 32

2 6 . O f the above , the oldest was born in 1947. T hree of

the above were born in that year.

2 7 . Since 2003, new attorney hires , (including law sc hool

graduate s not admitted ) were as follows:

Whites 10

Blacks 6

Asian 0

Hispanic 1

Male 4

Female 13

2 8 . Of these, the oldest was born in 1958. TRLS has

hired, since Ms. Thompson has been Executive Director, at least

one person who was over the a ge of 70.

2 9 . TRLS does not have quotas or a diversity plan that

requires certain races, genders, or ages to be given preference

in hiring. TRLS is guided in this regard by Title 45, Code of

Federal Regulations, § 1616.1, et seq . Specifically, Title 45,

Code of Federal Regulations, § 1616.6 requires that TRLS adopt ,

" employment qualifications, procedures, and policies that meet

the requirements of applicable laws prohibiting discrimination

in employment, and shall take affirmative action to insure equal

employment opportunity. " The hiring record of TRLS, taken as a

whole , demonstrates compliance with this requirement and does

not indicate any pattern of discrimination.

30 . Ms. Thompson has been the executive director of TRLS

since 1996. She is an Afric an - American . She graduated from the

University of Florida Law School and was admitted to the Florida

Bar in 1974. She has extensive experience in the delivery of

legal services to the poor . She worked for Tampa Legal Services

beginning in 1973. It beca me a Legal Services Corporation

program while she was employed there. She began working for

Rhode Island Legal Services in 1976 , practicing primarily family

law.

3 1 . Ms. Thompson worked for Philadelphia Legal Services

for five years and then, beginning i n 1982, worked for a number

of years in the U. S. Virgin Islands where she was litigation

director . She was appointed E xecutive D irector of TRLS in

December of 1996.

Job applications with TRLS in 2003 and earlier

3 2 . Attorney Kaimowitz applied for a mana ging attorney

position with TRLS in 1997. Ms. Thompson interviewed him and

determined that he was an " interesting person " but was not the

type of person who would work well with others. She concluded

he would be difficult to manage. She noted that if sh e had a

job which did not require working well with others, s he might

wish to hire him in the future.

3 3 . Attorney Kaimowitz applied for a job as a staff

attorney in 2001. He received a letter dated May 13, 2001, from

Ms. Thompson, advising him that he w as not selected and that she

would keep his resume on file. Attorney Kaimowitz responded to

this letter with a letter dated August 15, 2001, that pointed

out two settlements he had received from legal service s programs

in Florida based on their alleged di scrimination against him

because of his age .

3 4 . H e also discussed his whistle blowing with regard to

GOALS and stated, "I include this information to indicate that

when there really is a will, there is a way." Ms. Thompson took

this as a threat.

3 5 . Attorney Kaimowitz applied for a job as a managing

attorney in the TRLS Lake City office in 2002. He was not

interviewed for that position.

3 6 . TRLS advertised for a fair housing attorney and a fair

housing testing coordinator in various publications dur ing April

2003. Attorney Kaimowitz applied for both of these jobs.

3 7 . He interviewed with Ms. Thompson and Mary O'Rourke , a

staff attorney with TRLS , on May 30 , 2003 . Ms. Thompson asked

Ms. O'Rourke to sit in as a witness to the interview because she

w as concerned that Attorney Kaimowitz would sue TRLS if she did

not hire him .

3 8 . Initially, Attorney Kaimowitz expressed an interest in

both the fair housing attorney job and the fair housing testing

coordinator job. However, d uring the interview Attor ney

Kaimowitz stated that he did not wish to apply for the fair

housing attorney position , but wished to be considered only as

an applicant for the fair housing testing coordinator position.

The occupant of this position was expected to supervise

individu als who would determine if discrimination in housing was

occurring.

3 9 . Attorney Kaimowitz claimed during his testimony that

he told Ms. Thompson and Ms. O'Rourke that his ability to hear

was impaired. He claimed he told them he required an

accommodati on for his hearing loss. He stated that he had a

discussion with Ms. O'Rourke during the interview about an

electronic system where a court reporter would record words

spoken , and the words would be displayed on a monitor so that he

could read what was be ing said.

40 . Attorney Kaimowitz appeared at the interview wearing

one hearing aid . Ms. Thompson said th at Attorney Kaimowitz said

that one of his hearing aids was "in the shop . " Ms. Thompson

testified that he announced during the interview that his

hea ring loss was corrected by his hearing aid s . Ms. Thompson

said it was clear that he had no difficulty in understanding her

with only one hearing aid. In no event did she perceive him as

being hearing impaired.

4 1 . Ms. O'Rourke stated that the conversati on claimed by

Attorney Kaimowitz regarding an electronic monitor system to aid

hearing never occurred. Based on Ms. O'Rourke's testimony,

Ms. Thompson's testimony, and Attorney Kaimowitz's credibility,

which is addressed in detail below, it is found that at the time

of this interview Attorney Kaimowitz did not claim the need for

an accommodation based on an alleged hearing impairment and he

was not perceived as being hearing impaired.

4 2 . Ms. Thompson wanted employees at TRLS who would

maintain a good relationship with the local bar. Even though

the housing testing coordinator position was not a job requiring

the incumbent to be a licensed attorney, it is not helpful for

TRLS to have employees who are at odds with the local bar or

community . She was l ooking for an employee who was a team

player, who could get along with the other employees at T RLS ,

the local bar , and with persons in the community. She also

wanted someone with good references.

4 3 . The fair housing testing coordinator required traini ng

in Jacksonville. Ms. Thompson believed Attorney Kaimowitz could

not be trained because, "He already knew everything." She

believed he couldn't take orders. She was troubled because he

had no references from people who had supervised him. Although

at torneys who have their own practice cannot give references of

supervisors, they usually can g ive a judge or judges as a

reference , but Attorney Kaimowitz did not provide any judges as

references.

4 4 . Attorney Kaimowitz provided a co - plaintiff in a

lawsuit and a professor named Joe Little as references .

Ms. Thompson called Professor Little but did not feel it would

be worthwhile calling his co - plaintiff , who was embroiled in a

lawsuit at the time . She was concerned because Attorney

Kaimowitz told her , wi th regard to references, "everyone in

Gainesville was suspect." Moreover, he did not provide any

references from his time as director of GOALS , which was a job

where he had a supervisor who could comment on his work .

4 5 . Ms. Thompson was aware of Attorne y Kaimowitz's arrest

during a Gainesville City Commission meeting, and was aware of

at least one of his Florida Supreme Court reprimands at the time

she decided not to hire him. She was also aware that he would

occasionally write in "black English , " and s he found that

offensive. She believed him to be a disruptive force. She

stated she would not hire him if he was "the last man on earth."

She state d that an equally obnoxious black man would often apply

for positions at TRLS , and she would not hire him f or the same

general reasons that she would not hire Attorney Kaimowitz.

4 6 . Ms. Thompson thought Attorney Kaimowitz would be a

liability to her organization. She noted that , " He m akes

comments without any basis. He makes sweeping comments when he

knows nothing. He doesn't even check."

4 7 . Brenda Scafadi was eventually hired for the housing

testing coordinator. She was, at the time, a 50 - year - old white

woman who had a disability in the form of fibromyalgia. She was

not an attorney. She was hired be cause she was perceived to be

a team player and she had good references. Ms. Scafadi resigned

after about eight months and was replaced by Steve Malu, a

50 - year - old Nigerian , who also was not an attorney.

4 8 . Attorney Kaimowitz was a person Ms. Thompson had

personally known for about six years at the time of the

interview. She also knew about him from his letters to the

"Gainesville Sun" and numerous e - mails he sent to her and to

others. She was aware of his reputation in the community. She

refused to hire him because she did not believe he would be a

good employee. Neither h is age, nor his race , nor his claimed

hearing loss was a factor in her decision.

4 9 . Attorney Kaimowitz received a letter from Ms. Thompson

dated July 22, 2003, advising him that she had , "decided to

offer the position to different applicants who I thought would

be more appropriate for our needs. "

The Americorps positions

50 . On August 1, 2004 , Americorps positions in Gainesville

and Jacksonville were advertised . These jobs were targeted at

inexperienced attorneys and paid "living expenses" and a promise

of scholarship help rather than a salary.

5 1 . During the evening of August 2, 2004, Ms. Thompson

offered testimony before the Gainesville City Commission. After

her testimony s he depart ed , although the meeting continued .

After exiting the building , she heard footsteps behind her and

turned to see Attorney Kaimowitz following her. There were no

other people in the area. He stated that he wanted to "mediate

our situation" but was informed by Ms. Thompson that there was

nothing to mediate because she did not discriminate. She told

him she was tired of him making disparaging comments about her

program and her staff.

5 2 . Attorney Kaimowitz expressed an interest in the

Americorp s positions in an e - mail to Ms. Thompson dated

August 5, 2004, which was in the nature of a resume. In this

letter he said, "I certainly will refrain from any action I

suggested I might take through this month of August, so that we

can see if we can reac h an accommodation in that time."

Ms. Thompson regarded this as a threat.

5 3 . Ms. Thompson did not interview him for the Americorps

positions because the "resume" e - mail of August 5, 2004, did not

match the requirements of the job. Three of the positio ns were

designed for attorneys TRLS could train so that they could

recruit students from the law school to assist in the delivery

of services. The other two positions required no litigation

skills and were designed to provide limited legal services over

t he telephone to a large volume of clients.

5 4 . Another reason Ms. Thompson found Attorney Kaimowitz

to be unsuitable for this job were statements he made to her ,

such as claiming she hired an "incompetent black male . " She had

seen, and was familiar with, another widely circulated writing

in which he stated, "The real ' piece of work ' is Three Rivers

Legal Services, and their foolish young attorney of color

Glorimil Walker, everyone's favorite minority attorney since she

speaks her mind -- even if it is again st the adults and children

at University Centre."

5 5 . The Americorps attorneys hired during this period,

instead of Attorney Kaimowitz, included Shelly E. Beach, who was

a 26 - year - old white female, Melissa B. Long, a 29 - year - old black

female, and Julie A. Santioni, a 26 - year - old white female.

5 6 . Ms. Thompson, and TRLS did not discriminate or

retaliate against Mr. Kaimowitz in refusing him an Americorps

position. He was not hired because the job was unsuitable for

him and because he was unsuitable for em ployment at TRLS.

Retaliation

5 7 . Attorney Kaimowitz's original claim of retaliation was

based on his view that TRLS would not hire him because he had

sued Central Florida Legal Services and that Ms. Thompson knew

and would not hire him because of that la wsuit.

Ms. Thompson denied this .

5 8 . Attorney Kaimowitz's second claim of retaliation was

based on the complaint to the Commission concerning the refusal

of TRLS to hire him for the fair housing testing coordinator

position. For reasons that are abunda ntly clear herein, there

were numerous reasons for not hiring him other than retaliation.

Attorney Kaimowitz's Credibility

5 9 . Attorney Kaimowitz claim s that he applied for the fair

h ousing a ttorney position as well as the fair h ousing t esting

c oordinat or. Both Ms. Thompson and Ms. O'Rourke stated that at

his interview he said he wished to apply only for the fair

h ousing t esting c oordinator. Attorney Kaimowitz also claims

that he informed Ms. Thompson and Ms. O'Rourke at his interview

that he was hard of hearing and required an accommodation.

Ms. Thompson and Ms. O'Rourke both said that during the

interview he asserted that any hearing problems he had were

resolved by hearing aids.

60 . Attorney Kaimowitz has demonstrated through his

pleadings and act ions in court, and before this Administrative

Law Judge , that he has a low regard for the truth. As an

example, h e claims to believe in the equality of mankind , but

during his examination of Ms. Thompson , he threw a document at

her and stated that, " And t hen you could never find

discrimination unless I don't want a nigger in here ."

6 1 . A s a consequence all issues involving credibility are

resolve d against Attorney Kaimowitz. That being the case , it is

found by a preponderance of the evidence that he did not seek

the f air h ousing a ttorney position in 2003 and that he did not

assert during the interview that he was hard of hearing and thus

required an accommodation.

CONCLUSIONS OF LAW

6 2 . The Division of Administrative Hearings has

jurisdiction over the s ubject matter of and the parties to this

proceeding. §§ 120.569, 120.57(1), and 760.01, et seq.

6 3 . Title 45, Code of Federal Regulations, § 1616.1, when

addressing attorney hiring, states, "This part is designed to

promote a mutually beneficial relatio nship between a recipient

and the local Bar and community, and to insure that a recipient

will choose highly qualified attorneys for its staff."

" Recipient " refers to a legal services program, which, in this

case , means TRLS.

6 4 . Attorney Kaimowitz has t he ultimate burden of proving

by the preponderance of the evidence that Respondent committed

an unlawful employment practice. Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981) .

6 5 . Petitioner is an “aggrieved person” and Respondent is

an "employer" within the meanin g of Section 760.02(10) and (7),

Florida Statutes, respectively. Section 760.10(1)(a) , Florida

Statutes, makes it unlawful for Respondent to refuse to hire any

individual based on that individual's race , handicap, or age.

6 6 . Section 760.10(7) , Florida S tatutes, provides that it

is an unlawful employm ent practice for an employer to

discriminate against a person because that person has opposed an

unlawful employment practice or because that person has made a

charge under Chapter 760.

6 7 . The Florida Civil Rights Act (the Act) , Section

760.01, et seq . , is patterned after Title VII of the Federal

Civil Rights Act, 42 U.S.C . Section 2000 e , et seq. Federal case

law interpreting Title VII and similar federal legislation is

applicable to cases arising under the Florida Act. See Florida

De partment of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991 ) and School Board of Leon County v. Weaver , 556 So.

2d 443 (Fla. 1st DCA 1990). Specifically, the Act is

illuminated by the provisions of the Age Discrimination in

Employment Act, Title 29 U.S . C., § 621, et seq.

A lleged D iscrimination B ased on A ge

6 8 . In Florida, the Commission has held that in a " failure

to hi re " age discrimination case, one element in a prima facie

case is a showing that "the potential employer hired someone of

a different age." Thus, in proving a prima facie case , it is

not necessary to prove that a younger person was hired instead

of Attorn ey Kaimowitz . It is only necessary to prove that a

person of a different age was hired. To this extent, the Act

differs from federal law , which seeks to protect older citizens.

See Faye Musgrove v. Gator Human Services , Case No. 98 - 0173

(DOAH July 23, 1998), and Faye Musgrove v. Hamilton House/Career

Systems Development, Corp. , Case No. 98 - 0173 (DOAH July 23,

1998 ), Final Orders, Case No. 99 - 003 (FCHR April 12, 1999) .

6 9 . No direct or statistical evidence of age

discrimination exists in this case. The refore a finding of

discrimination , if any, must be based on circumstantial

evidence.

70 . The burden and order of proof in discrimination cases

involving circumstantial evidence is set forth in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 03 (1973 ).

7 1 . To demonstrate age discrimination under McDonnell

Douglas Corp. v. Green , Attorney Kaimowitz must first establish

a prima facie case of age discrimination . Thereafter, the

employer may offer legitimate, nondiscriminatory reason s for its

failure to hire him . If the employer does that, in order to

prevail, Attorney Kaimowitz must establish that the employer's

articulated legitimate, nondiscriminatory reason s w ere a pretext

to mask unlawful discrimination. Smith v . J. Smith Lanier &

Co. , 352 F.3d 1342 (11th Cir. 2000) .

7 2 . To establish a prima facie case of age discrim ination,

Attorney Kaimowitz must show that (1) he was a member of a

protected class ; that (2) he was subjected to an adverse

employment action ; that (3) he was qualified to do the job ; and

that (4) he lost the position to a n individual of another age .

Wi lliams v. Vitro Services Corp. , 144 F.3d 1438, 1441 (11th C ir.

1998 ).

7 3 . Attorney Kaimowitz was 68 years of age when he applied

for the position of fair housing testing coordinator and was 69

when he sought the Americorps positions. He was in a protecte d

class. He suffered an adverse employment decision because he

was not hired.

7 4 . He was not , however, qualified for these positions

because TRLS was search ing for a person who could work well and

get along well with others and who would enhance TRLS's ability

to work in the community. As noted above, Title 45, Code of

Federal Regulations, § 1616.1 contemplates a working

relationship between TRLS and the community and the B ar.

Attorney Kaimowitz had a record of fomenting discontent over the

years , and in the Gainesville area in recent years. He is a

difficult person who is self - described as "the most well - known

offensive personality in the Eighth Judicial Circuit." As such

he was not qualified to work at TRLS.

7 5 . The jobs for which he applied were awarded to persons

of a different age . In fact, they were offered to persons much

younger than Attorney Kaimowitz. Nevertheless, b ecause he was

not qualified for these positions, Attorney Kaimowitz did not

establish a prima facie case of age discriminat ion under the

Act.

7 6 . If one assumes , arguendo , that Attorney Kaimowitz did

prove a prima facie case of age discrimination , TRLS provided

nondiscriminatory reasons for not hiring him. TRLS proved that

Attorney Kaimowitz was not hired for the positions f or which he

applied because of his proven inability to work well with

others, his poor reputation with the B ar, his poor reputation in

the community, his antagonism toward certain African - Americans,

his "know it all" attitude, and Ms. Thompson's belief tha t he

would be a liability to TRLS should he be employed there.

7 7 . Attorney Kaimowitz produced no evidence demonstrating

that this was a pretext for age discrimination. Accordingly, he

was not discriminated against based on his age.

The A lleged D iscrimin ation B ased on R ace

7 8 . A prima facie case involving the failure to hire due

to racial discrimination requires Attorney Kaimowitz to prove

that (1) he was a member of a protected group; that (2) he

applied and was qualified for a job for which an employer was

seeking applicants; that (3) despite his qualifications, he was

rejected; and that (4) , after his rejection, TRLS hired someone

of Attorney Kaimowitz's qualifications or continued to seek

applicants from persons of Petitioner's qualifications.

7 9 . Al though discrimination against a person of the white

race is sometimes referred to as "reverse discrimination," the

Act protects persons of all races from discrimination based on

race. Consequently, Attorney Kaimowitz, a white person, can be,

and was in th is case, a member of a protected group. For the

reasons set forth above, however, he was not qualified for the

position s sought.

80 . A white woman was hired, rather than Attorney

Kaimowitz for the fair housing testing coordinator, and two

white women and one black woman w ere hired in the Americorps

positions. This does not bolster Attorney Kaimowitz's assertion

that TRLS discriminated against white people.

8 1 . If one assumes, arguendo , that Attorney Kaimowitz did

prove a prima facie case of racial discr imination, TRLS provided

abundant, nondiscriminatory reasons for refusing to hire him.

Attorney Kaimowitz did not prove these reasons were pretextual.

Accordingly, there is no proof that TRLS discriminated against

Attorney Kaimowitz based on race.

Retali ation

8 2 . The analysis required to demonstrate retaliation is

the familiar McDonnell Douglas Corp. v. Green , procedure.

Attorney Kaimowitz must first establish a prima facie case of

retaliation. Thereafter, the employer may offer legitimate,

non - retalia tory reasons for its failure to hire him. If the

employer succeeds , Attorney Kaimowitz must establish that the

employer's articulated legitimate, reasons were a pretext to

mask unlawful retaliation in order to prevail . Harper v.

Blockbuster Entertainment Corp. , 139 F.3d 1385, 1388 (11th Cir.

1998).

8 3 . To prove a prima facie case of retaliation, Attorney

Kaimowitz must show the following: that ( 1 ) he engaged in

statutorily protected expression; that ( 2 ) he suffered an

adverse employment action , such as not being hired; and that

(3 ) the adverse employment action was causally related to the

protected activity. See Harper v. Blockbuster Entertainment

Corp. , 139 F.3d 1385, 1388 (11th Cir. 1998) and EEOC v. Navy

Federal Credit Union , 424 F.3d 397 (4th Cir. 2005) .

8 4 . Attorney Kaimowitz's original claim of retaliation

stated that TRLS would not hire him because he had sued Central

Florida Legal Services based on age discrimination, and that

Ms. Thompson was aware of that lawsuit , and therefore, would not

hi re him.

8 5 . Section 760.10(7) , Florida Statutes, provides that,

"It is an unlawful employment practice for an employer to

discriminate against any person because that person has opposed

any practice which is an unlawful employment practice under this

se ction. . . ." No cases have been provided by the parties , nor

have any been found, where the alleged statutorily protected

expression occurred at an entity other than the entity refusing

to hire. Section 760.10(7) , Florida Statutes, does not rule out

tha t possibility , so for purposes of this case it is found that

the first element of the prima facie case is satisfied.

8 6 . Attorney Kaimowitz suffered an adverse employment

action because he was not hired, so the second element of proof

is satisfied . Howe ver, there was no causal connection between

the statutorily protected action and the failure to employ

Attorney Kaimowitz. Accordingly, a prima facie case of

retaliation as alleged in DOAH Case N o. 05 - 2972 is not proved.

8 7 . Even assuming, arguendo , that Attorney Kaimowitz had

established a prima facie case of retaliation, he has failed to

show that TRLS's non - discriminatory explanations for their

refusal to hire him were a pretext for retaliation in DOAH Case

N o . 05 - 2972 .

8 8 . Attorney Kaimowitz also al leged retaliation in DOAH

Case N o. 05 - 2170. He claimed in this regard that the

statutorily protected action was his complaint in DOAH Case

N o. 05 - 2972, that he was not hired for the fair housing attorney

position and fair housing coordinator position bec ause of age

and race discrimination. The retaliation he claimed occurred

was the refusal to hire and also the tortuous interference with

his relationship with poor African - American single heads of

households he briefly represented in 2003.

8 9 . No proof of this latter allegation was permitted

because the activities alleged, even if they occurred, are

outside of the scope of the Act. With regard to the former, the

analysis regarding DOAH Case N o. 05 - 2972, above, applies equally

to this case, and with the same result.

The Alleged Class Action

90 . Attorney Kaimowitz claimed to represent certain

classes of persons who had been discriminated against by TRLS.

Class actions are not permitted in administrative proceedings

pursuant to Chapter 120 , as noted in M edley Investors, Ltd. v.

Lewis , 465 So. 2d 1305 (Fla. 1s t DCA 1985). As stated in

Medley , the legislature has not applied Fla. R. Civ. P. 1.220 to

administrative hearings, and class standing in an administrative

proceeding should not be inferred in the ab sence of a statute

that provided that right.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the petitions be dismissed.

DONE AND ENTERED this 1st day of June , 2006, in

Tallahassee, Leon County, Florid a.

S

HARRY L. HOOPER

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 June , 2006 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Carla D. Franklin, Esquire

4809 Southwest 91st Terrace

Gainesville, Florida 32608

Gabe H. Kaimowitz , Esquire

Post Office Box 140119

Gainesville, Florida 32614 - 0119

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 issu e the Final Order in this case.