05-003149 Marino M. Green vs. Department Of Health Status: Closed Recommended Order on Tuesday, March 28, 2006.

Summary: Petitioner failed to prove discrimination based on race in a job placement or in retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARINO M. GREEN, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3149

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was prov ided and on January 2 7 , 200 6 , a formal hearing

was held in this case. Authority for conducting the hearing is set

forth in Sections 120.569 , 1 20.57(1), and 760.11(7), Florida

Statutes (2005 ). The hearing location was the offices of the

Division of Admini strative Hearings , the DeSoto Building, 1230

Apalachee Parkway, T all ahasse e, Florida . The hearing was conducted

by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Marino M. Green, pro se

3023 Golden Pond Boulevard

Orange Park , Florida 32 073

For Respondent: Stephen M. Foxwell, Esquir e

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1703

STATEM ENT OF THE ISSUE

Did Respondent engage in unlawful employment practices against

Petitioner in violation of Section 760.10(1) and (7), Florida

Statutes , in e ffect at the time of the alleged acts, contrary to

the Florida Civil Rights Act of 1992 (the Act)?

PRELIMINARY STATEMENT

On January 31 , 200 5 , the Florida Commission on Human Relations

(FCHR) received an employment complaint of discrimination from

Petitioner . It named Respondent as the alleged employer

responsible for discrimination. The basis of t he claim was race in

relation to the failure to promote and retaliation for complaining

about the choice by R espondent not to promote Petitioner , to the

extent that Petitioner was terminated for complaining.

The race referred to in the employment co mplaint of

discrimination was Black, in the sense that Petitioner claimed to

be within that protected class.

FCHR investigated the complaint finding that Respondent was

indeed an employer within the meaning of the Act. FCHR also found

that the complaint o f discrimination was timely and other

jurisdictional requirements had been met. In view of the

Investigative Memorandum provided by the Office of Employment

Investigations within FCHR, it was determined by FCHR that no cause

existed to believe that an unl awful employment practice occurred.

This decision was made on July 21, 2005 . Petitioner was separately

noticed of the determination finding no cause , advising Petitioner

of his right to petition for relief within 35 days of the date of

the Notice of Det ermination: No Cause. The notice was dated

July 21, 2005 .

Consistent with his opportunity Petitioner filed a Petition

for Relief with FCHR , which was received by that agency on

August 25, 2005 .

The Petition for Relief continued to refer to alleged

di scrimination based upon race, in that Petitioner was alleged to

be a black male. It referred to the position of B iological

A dministrator II (BA II) to which Petitioner was denied promotion.

It also referenced a position referred to as Bio Response Team

( BRTR), a supervisory position that Petitioner was alleged not to

have been hired to fill. That la t ter position was one not referred

to in the earlier employment complaint of discrimination . The

Petition for Relief referred to a white male being hired in the BA

II position and a white non - Hispanic male being hired to fill the

BRTR position. 1/ The Petition for Relief continued to advance the

allegation that Petitioner having filed a complaint within the

Respondent 's grievance process , Respondent allegedly retaliated

against Petitioner by terminating him from employment.

On August 30, 2005 , the Division of Administrative Hearings

(DOAH) received the Petition for Relief and a request that an

a dministrative l aw j udge be assigned to conduct necessary

proceed ings to resolve the dispute between the parties. Stephen F.

Dean, Administrative Law Judge , was assigned to conduct tho s e

proceedings in DOAH Case No. 05 - 3149.

The case was noticed to be heard by video - teleconference

between Jacksonville and Tallahassee , Florida, on November 14,

2005 .

Petitioner moved to continue the hearing scheduled for

November 14, 2005 . Respondent replied to t h e motion. On

November 8, 2005 , an order was entered requiring th e parties to

provide dates for rescheduling. An order was entered rescheduling

the hearing for January 27, 2006 .

Petitioner filed a "Petition for Determination" arguing that

FCHR had failed to conciliate or determine reasonable cause in the

case. Respondent answered that motion and by its answer opposed

the motion. On January 5, 2006 , an order was entered denying

"Petition for Determination" based upon the conclusion that the

relief requested was beyond the jurisdiction of the forum ,

referring to DOAH .

After the January 5, 2006 o rder was entered , the p resent

a dministrative l aw j udge was substituted for Stephen F. Dean,

Administrative Law Judge , in recognition that Administrative Law

Judge Dean would be retired before this case could be concluded at

DOAH.

Petitioner moved to continue the hearing schedu led January 27,

2006 . The motion was opposed in writing. On January 25, 2006 , a

telephone hearing was conducted to consider the motion. On that

same date an order was entered denying the motion to continue.

At hearing Petitioner testified in his own b ehalf.

P etitioner's Exhibits numbered 4 through 9 , 11, 13 through 16, 18,

19, 25 through 29, 31 and 45 were admitted as evidence.

Petitioner's Exhibits numbered 1 through 3, 10, 12, 17, 20 through

24, 30, 32 through 44, 46 through 48, and 50 through 54 w ere denied

admission. Petitioner 's Exhibit numbered 56 was not offered but

remained with exhibits that have been identified.

Respondent presented Dr. Dean Willis, Susanne Crowe, Dr. David

Stuart Beall, Caroll David Fulgher and Dr. Ming S. Ch an as its

wi tnesses. Respondent 's Exhibits numbered 1 through 8, and 10 were

admitted as evidence. Respondent 's Exhibit numbered 9 was denied

admission.

The exhibits by the parties both those admitted, denied

admission, and left with the record , are transmitted wi th this

Recommended Order .

There was an indication that a transcript might be ordered and

filed for consideration by the a dministrative l aw j udge . Later a

decision was made not to order the t ranscript . Petitioner filed a

"Notice of Intent to File a Rec ommended Order ." This pleading w as

responded to in writing by Respondent . Having considered the

Notice of Intent and response , a post - hearing scheduling conference

was held by telephone on February 21, 2006 , and a post - hearing

scheduling order entered fo llowing that conference .

The parties filed p roposed r ecommended o rder s which have been

considered in preparing the Recommended Order .

FINDINGS OF FACT

1. Petitioner a s an "aggrieved person" filed a complaint with

FCHR. § 760.02(10), Fl a . Stat . ( 20 05 ).

2. Given the posture of this case, Respondent is an

"employer" employing 15 or more employees in each of 20 or more

calendar weeks within the period contemplated by Petitioner 's

complaint. It is so inferred. § 760.02(7), Fl a . Stat . ( 2005 )

3. P etitioner 's race as he describes it, and it is found, is

Black.

4 . In October 2003 Petitioner began employment with

Respondent in its Bureau of Laboratory Services, Jacksonville,

Florida , as a Medical Laboratory Scientist III (Scientist III) .

His stat us was as a probationary employee. He remained in that

status throughout his employment with Respondent .

5. Before beginning employment with Respondent , Petitioner

had earned a bachelor of science in micro biology in 1982 from the

University of Alabama. In 1989 he earn ed a m aster ' s of science in

micro biology from that same institution. In 1996 he was awarded a

Ph . D . in microbiology from the University of Alabama.

6 . Upon achieving his m aster ' s degree , Petitioner served as a

research assistant for t he University of Alabama at Birmingham from

September 1, 1989 through December 31, 1992. Part of that

employment overlapped his employment as a graduate researcher from

September 1, 1992 through May 29, 1996 , at the University of

Alabama in Tus caloosa , Al abama. There was overlapping service at

the University of Alabama at Tus caloosa in the period of

September 2, 1992 through April 29, 1996 , when Petitioner had a

position as a teaching assistant.

7 . Between September 5, 1996 and February 25, 2000,

Pet itioner worked as a research fellow for the National Institute

of Health at the University of Florida in Gainesville , Florida ,

where , as he indicated in an employment application , " Petitioner

was responsible for developing new recombinant Interferon Gamma

li gands and receptors for the treatment of viral disease and cancer

(accomplished). Responsible for supervision [sic] (two) graduate

students i n molecular techniques. "

8 . Following the work with the National Institute of Health ,

Petitioner took a posi tion with ELISA Technologies, Inc. , in

Gainesville , Florida , as a laboratory director for the period

March 1, 2000 through February 5, 2003 , in which his application

for a job position indicated that Petitioner was: "R esponsible for

directing laboratory t esting of customer samples and supervising a

five - member staff. Responsible for developing, performing, and

directing new test development for the CDC and WHO (accomplished).

All other research and development projects (accomplished). "

9 . Petitioner n ext worked at Jacksonville University in

Jacksonville , Florida , as a adjunct assistant professor from what

is perceived the date of January 6, 2003 through his employment

with Respondent in its Bureau of Laboratory Services. While

serving as an adjunct a ssistant professor Petitioner in his job

application recounts that he was : " Responsible for teaching

nursing and biology majors microbiology courses. Responsible for

teaching general - clinical laboratory techniques. "

10. In his role as Scientist III w ith Respondent , Petitioner

was expected to meet the following expectations:

1) Will learn DNA fingerprinting methods for

salmonella and tuberculosis as well as 16S

sequencing. Will learn techniques sufficiently

to act as a back - up as needed.

Tim eframe: November - January

2) Will oversee development of universal

procedural manual for all testing in molecular

section. Will produce master copy by end of

February.

Timeframe: November - February

3) Will oversee the development and

docu mentation of quality control, quality

assurance and proficiency testing procedures

in the molecular section. Will incorporate all

into a single document by the end of March.

Timeframe: November - March

4) Will eventually be responsible for the

ordering of all equipment and reagents for the

molecular section. Duties to include monthly

reconciliation reports.

Timeframe: November - April

5) Will represent the molecular section in the

development of BOLIMS. Will become familiar

with repo rting and date management of all

reports generated in the molecular section .

Timeframe: November - Ongoing

6) Will act as back - up for BT testing. Will

learn all procedures once security clearance

has been granted.

Timeframe: January - Ongoing

7) Will assist in implementation of VNTR - MIRU

and PCR testing for malaria.

Timeframe: January - Ongoing

The months reflected in thi s statement of expectations bega n in

November 2003 and extended into 2004 .

1 1 . In his role as a Scie ntist III Petitioner had no

supervisory duties. He was given projects to do. He was provided

an appraisal task form in relation to his responsibilities.

Petitioner also worked on a QA/QC manual (quality assurance and

quality control).

12. Initially Petitioner was supervised by Dennis Nolan.

Mr. Nolan left his employment with Respondent to take another

position. Dr. Dean Willis, who has a doctorate in public health ,

became Petitioner 's supervisor with Mr. Nolan's departure.

1 3 . The interaction be tween Petitioner and other members of

the laboratory at Jacksonville is reflected in the Petitioner 's

Exhibits numbered 4, 5, 6, 11, 19, 25, 26, 27, 28, 29, 31 and 45.

This series of e - mail s are an indication of Petitioner 's

participation in the organizat ion a n d inclusion in the efforts of

that organization in carrying forward its du t ies.

1 4 . Petitioner during his employment in the Scientist III

position worked on a malaria project. In addition h e w orked on a

whooping cough test.

1 5 . Earlier in his e mployment Petitioner under went a

performance appraisal or review of his work.

1 6 . In February 2004 when Mr. Nolan resigned from the

laboratory in Jacksonville , h is position as B A II , an SES -

classified position in the personnel system in Florida govern ment ,

came open. In that month Respondent advertised to fill the

position. In that solicitation Petitioner was the only applicant

to replace Mr. Nolan . As a consequence the position was re -

advertised.

17. The initial advertisement for BA II positio n closed on

February 16, 2004 . The second advertisement for that position

closed on March 15, 2004 . The information concerning the position

was the same in both instances.

1 8 . Dr. Willis as the responsible person at the Jacksonville

laboratory , decide d to re - advertise the position to try and attract

additional applicants. The position was re - advertised and more

candidates expressed an interest by applying for the position.

Petitioner was among the applicants applying du r ing the re -

advertisement. Unl ike the circumstance in the first advertisement,

on t his occasion there was the expectation that someone would be

hired for the BA II position. Ultimately Dr. Ming S. Chan, Chief

of La boratory Services, also referred to as a Bureau Chief for

Respondent at its Jacksonville office , condoned the re -

advertisement. Dr. Chan holds a Ph.D. in chem istry .

1 9 . Among the candidates for the BA II position , four had

their applications considered and were interviewed for the

position. Petitioner was among the candid ates who se applications

were reviewed and who underwent an interview. The applications

were considered and interviews conducted by Dr. Willis and by

Susanne Crowe, another BA II at the Jacksonville laboratory . She

holds a master ' s in health and an underg raduate degree in biology.

20. Ms . Crowe was chosen to interview candidates for the

available BA II position as a person who was in a similar position

within the organization.

21. Th e result of the process for ranking the candidates

whose applicatio ns were considered and who underwent an interview

for the job placement w as that Dr. David Stuart Beall, a non -

Hispanic white male, was selected to fill the BA II position as the

top ranked candidate, with Petitioner placing second among the four

finalist.

22. The other two persons interviewed for the BA II were

interviewed by phone . I t is not perceived that any advantage was

created for those persons interviewed by phone compared to the live

interviews afforded Petitioner and Dr. Beall , given the ranking of

the candidates.

23. When Dr. Beall applied for the BA II position he was

working for the Center for Disease Control and Prevention ( CDC ) and

was housed in the offices of the Bureau of L aboratory Services in

Jacksonville , Florida . Dr. Beall decided to apply for the BA II

position without prompting from anyone employed by Respondent . He

was not given any special training to allow him to gain the BA II

position nor allowed any other form of preference that could be

considered discriminatory when compa red to the opportunities made

available to Petitioner . The office that Dr. Beall was placed in

before he became an employee with Respondent in the BA II position ,

was based upon space available and not in furtherance of a

preference that aided Dr. Beall i n gaining the BA II position.

24 . By comparison to Petitioner in the application process,

the details within the Petitioner 's application , which have already

been described as to education and work history, the following

information was provided by Dr. Beall in his application for the

BA II position. He graduated from the University of Fl orida in

1986 with a bachelor of science in microbiology and cell science.

He received a masters in microbiology and cell science from that

instit ution in 1992. He earned a Ph.D. i n microbiology and cell

science in 1995 from the University of Florida .

25 . Dr. Beall served as a graduate assistant at the

University of Florida from June 1, 1989, through August 1, 1995.

During that time , as he indicated in his app lication he:

E xecuted several lab projects including the

study of ethanol fermentation by recombinant

Escherichia coli expressing Zymomonas mobilis

pdc and ad hb genes for the conversion of x y lose

and other bio mass carbohydrates to fuel

ethanol. Also iso lated and genetically

engineered several novel strengths of Erwinia

for the production of fuel ethanol from waste

plant biomass.

26 . From November 1, 1996 , through March 31, 19 99, Dr. Beall

worked as a post - doctorial research associate with the CDC. During

that time as the application described he :

Designed and executed experiments that resulted

in the identification of several differentially

expressed gene products that are associated

with the induction of latency in Mycobacterium

. Inco rporated design improvements to the

shift - down model for MTB growth. Part of this

with TB lead to the issuance of a U . S . for an

assay to detect antigens associated with latent

tuberculosis infections. Attempted to identify

Mycobacterium tuberculosis viru lence factors

using RNA subtractive hybridizationained

new laboratory technicians how to work safely

inside a BSL - 3 containment facility.

27 . From April 5, 1999, through April 30, 2000, Dr. Beall

worked as a guest researcher for the CDC , during wh ich time he as

the application described:

H elped organize and contributed work to several

lab projects including the development of novel

assays for bacterial meningitis detection in

clinical samples using TaqMan and Light Cycler

technologies and the seq uencing of t he variable

loop regions of the porA gene from several

hundred clinical i solates of Neisseria

meningitidis .

28 . From August 4, 2000, until March 12, 2004 , Dr. Beall

acted as a visiting professor of biology at the University of North

Flori da in Jacksonville , Florida , during which time as his

application relates:

My duties involve instruction of approximately

three to four hundred students in lecture and

laboratory sections per semester along with

organizing and coordinating the presentation of

each courseA, A's materials and tests.

Additionally, I provide recommendations for

students entering professional programs and

mentor students for their senior presentations.

Beyond my teaching responsibilit ies I help

administer and the development of the Masters

degree program as well as participate search

committees to fill vacancies. This past summer

seme ster I developed and instructed the

Pathogenic Bacteriology course.

29. The applications for the BA II position executed by

Petitioner an d Dr. Beall had a section which called upon the

applicants to set forth in their own words the

knowledge/skills/abilities that they believed they would bring to

the position. In that context Petitioner said about himself:

Knowledge and skills needed to isolation [sic]

and identification [sic] (biochemical and

Molecular procedures ) pathogenic and medically

important bacteria and some viruses. Knowledge

and skills need ed to identify Mycobacterium

tuberculosis complex (biochemical and Molecular

procedures) . Experience in supervising testing

staff and directing basic and applied research

projects. Working and written knowledge of

CLIA, CAP, GMP, and ISO 2000 requirements for

QA/QC. Ability to generate, analyze, present

and publish (independently and colla boratively)

data in referred scientific Journals. Ability

to implement, direct, and complete simple and

complex projects.

30. In contrast, Dr. Beall related his knowledge/skills/

abilities as being:

My formal training has afforded me a wide range

of technical skills. My graduate school

projects focused on the genetic engineering and

development of novel, environmental benign

methods of producing fuel ethanol from waste

pla nt material. These studies reli ed heavily

on knowledge of m ole c ula r biology , bacterial

genetics, and cellular physiology. My

postdoctoral training as an ASM/NCID fellow at

the Centers for Disease Control and Prevention

in Atlanta provided me invaluable experience in

fields of Public Health and bacterial

pathogenesis. This wor k in volved the

development of mo del growth systems and nucleic

acid based assays for detecting pathogenic

bacteria such as N. meningitides, H.

influenzae, and M. tuberculosis. There I

adapted traditional assays for use with the

latest generation PCR machines TaqmanA, A and

Light CyclerA, A. I have also trained and

supervised numerous laboratory personnel in the

techniques of molecular biology and advanced

laboratory safety practices. I managed and

supervised the projects of a variety of

associates including visiting researchers, lab

technicians, and student interns.

3 1 . The occupation profile related to the BA II position , for

which the candidates contended, indicated in the way of Ex amples of

W ork:

Plans laboratory serv ices according to

statewide program needs. Consults with county

health officers and staff regarding laboratory

procedures and program planning related to

laboratory testing. Coordinates state and

federal laboratory services in outbreaks or

situations whe n testing by specialized

laboratory units is required. Consult to

physicians and private hospital laborato ries.

Plans and participates in special research

projects. Performs comparative evaluation of

new and existing laboratory procedures.

Prepares rep orts and provides information to

the director, assistant director and program

office.

32 . Further , the occupation profile set out examples of job

characteristics when it stated:

Provide Consultation and Providing consultation and expert

Advice t o Others advice to management or other

g roups on technical, systems -

r elated, or process related

topics.

Communicating With Pro viding informat ion to

Other Workers fellow workers, and subordinates.

This information can be exchanged

face - to - face, in writing, or via

telephone/electroni c transfer.

Documenting/Recording Entering, transcribing, recording,

Information storing, or maintaining information

in either written form or by

electronic/magnetic recording.

Getting Information Needed Observing, receiving, and otherwise

To Do The Job obtaining information from all

relevant sources.

Developing and Encouraging and build ing mutual

Building Teams trust, respect, and cooperation

a mong team members.

Analyzing Data Identifying underlying principles,

or Information reasons, or fac ts by breaking down

information or data into separate

parts.

Updating and Using Keeping up - to - date and knowing

Job - Relevant Knowledge one's own jobs' and related jobs'

and related jobs' functions.

Communicating With Persons Communicating with persons outside

Outside Organization the organization, representing the

organization to customers, the

public, government, and other

external sources. This information

can be exchanged face - to - face, in

writing, or via telephone/electronic

transfer.

Establishing and Developing constructive and

Maintaining Relationships cooperative working relationships

with others.

Developing Objectives Establishing long range objectives

and Strategies and specifying the strategies and

actions to achieve these objectives.

33 . Within BA II position examples of knowledge, skills, and

abilities were to the following e ffect:

Coordination Adjusting actions in relation to

others' actions

Reading Comprehension Understanding written sentences and

paragraphs in work related documents

Critical Thinking Using logic and analysis to identify

the strengths and weaknesses of

different approaches

Speaking Talking to others to effectively

convey information

Judgment and Decision Weighing the relative costs and

Making benefits of a potential action

Time Management Managing one's own time and the time

of others

Implementation Planning Developing approaches for

implementing an idea

Management of Personnel Motivating, developing, and dire cting

Resources people as they work, identifying the

best people for the job

Identification of Identifying the things that must be

Key Causes changed to achieve a goal

Visioning Developing an image of how a system

Should work under ideal conditions

Administration Knowledge of principles and processes

and Manageme nt involved in business and

organizational planning,

coordination, and execution. This

may include strategic planning,

resource allocation, manpower

modeling, leadership techniques, and

production methods.

English Language Knowledge of the structure and

content of th e English language

i ncluding the meaning and spelling

of words, rules of composition, and

grammar

Mathematics Knowledge of numbers, their

operations, and interrelations

including one or more of the

following: arithmetic, algebra,

geometry, calculus, statistics,

and their applications

Chemistry Knowledge of the composition,

structure, and properties of sub -

stances and of the chemical

pro cesses and transformations

that they undergo. This includes

uses of chemical s and their inter -

actions, danger signs, production

techni ques, and disposal methods

Economics and Accounting Knowledge of economic and accounting

principles and practices, the

fi nancial markets, banking, and the

analysis and reporting of financial

data

Law, Government Knowledge of laws, legal codes, court

and Jurisprudence procedures, precedents, government

regulations, executive orders, agency

rules, and the democratic political

process

34 . The job description for BA II stated that the employee

"must be licensed or eligible for a clinical/public health

laboratory license at the supervisor level ." Petitioner held a

clinical laboratory technician's license issued by the State of

Florida , Department of Health, Divisio n of Medical Qualit y

Assurance. He did not, and neither did Dr. Beall , hold a license

as a clinical/public health laboratory licensee at the supervisory

level.

35 . Both Petitioner and Dr. Beall met the education

requirements for BA II that called upon the candidate to have a

masters or equivalent work exper ience. Both candidates had Ph.D. s.

36 . The candidates for the BA II position were scored in

relation to their application s through a matrix. Within th e ma trix

was the consideration of education, experience, to include years of

experience, supervisory experience, and management experience .

There was a potential score for veterans' preference. Neither

candidate , Petitioner nor Dr. Beall was entitled to vete rans '

points. There was a score for licensure in a supervisor s or

directors capacity, as to eligibility as well as licensure . There

was a score for writing ability and a score for public health lab

experience. Th e matrix scores for Dr. Beall and Petitio ner

respectively are found within Respondent 's Exhibits numbered 5 and

6 admitted as evidence. In the last analysis, Dr. Beall received a

68 on his application. Petitioner received a 61. The differences

in the scores pertain to a two point difference fo r ability to

communicate in writing , in which Dr. Beall received a score of 8

out of 10 and Petitioner received a score of 6 out of 10 possible

points. Dr. Beall received 10 points maximum for having worked at

least three years in a public health lab, whe re as Petitioner did

not receive points in that category. Apparently the basis for

assigning the points for p ublic health lab experience was in

relation to Dr. Beall 's experience with the CDC referred to in his

application. Petitioner scored 15 points fo r work experience and

Dr. Beall received 10 points.

37 . Petitioner and Dr. Beall were interviewed by Dr. Willis

and Ms. Crowe, with each interviewer assigning scores for the

interview to the respective candidates. Dr. Willis assigned

Dr. Beall a score of 73.5 and Petitioner a score of 65 for the

interview. Ms. Crowe assigned Dr. Beall a score of 72 and

Petitioner a score of 64 for the interview. The scores in relation

to the interviews were averaged. That average was added to the

score received for the application review , t he result being that

Dr. Beall received an overall score of 138.25 and Petitioner a

score of 125.50 when finally concluded . In fact, the chart

reflecting these scores and averages is such that the actual score

for Dr. Beall by tha t process could have been somewhat higher than

is reflected in the chart. The chart is Respondent 's Exhibit

numbered 7 admitted as evidence .

3 8 . Ms . Crowe in her testimony established that Petitioner

was disorganized during his interview session to ob tain the BA II

job.

3 9 . The ranking of the candidates for the BA II position was

first assigned on April 13, 2004 . Petitioner was not satisfied

with the outcome in which he was not offered the job. He refers to

an April 14, 2004 discussion pertaining to the interview score he

received aside from the assignment of points during the application

evaluation. Petitioner's Exhibit numbered 14 admitted as evidence

is constituted of an e - mail sent from Petitioner to Dr. Willis , the

subject being the April 14, 2004 discussion of the interview score.

It also refers to a meeting on the morning May 4, 2004 , between

Petitioner and Dr. Willis on the decision that had been reached to

hire Dr. Beall . The emphasis in this communication related to

Petitioner 's backgro und and his complaints about the score received

in the interview. At the end of this communication Petitioner

described how he stood on professional principle and was seeking

reciprocation of those principles in what he refers to as "this

grievance proces s and in the future." In the e - mail to Dr. Willis

Petitioner referred to, "elimination of a candidate based on race

is especially frightening when the minority candidate is more

qualified than the individual offered the position." The e - mail

was sent fro m Petitioner to Dr. Willis on May 18, 2004 , as amended

on that same date by a separate E - mail . On May 24, 2004 ,

Dr. Willis acknowledged receipt of the E - mail .

40. The effect of Petitioner 's complaints about the scoring

directed to Dr. Willis led to f urther review by Dr. Willis . The

outcome was that 5 points Dr. Beall received for manageme nt

experience in relation to his application were deducted , while 15

points were added for eligibility for licensure as a director.

This ad jus tment is reflected in the scoring matrix previously

described. Petitioner was not assigned any points for management

experience and received the same 15 points for eligibility to be

licensed as laboratory director that were assigned to Dr. Beall in

his application. This outco me i s also reflected in the scoring

matrix previously described.

41. The decision to hire Dr. Beall for the BA II position was

not based upon race or a decision contrary to Petitioner 's race.

42 . Sometime in the latter part of May 2004 , Dr. Beall

assumed the BA II position and became Petitioner 's superv isor by

virtue of being hired in the position.

43. At about the same time Petitioner made an internal

complaint, a complaint within the Respondent Agency claiming

discrimination on the basis of race , pertaining to the manner in

which Dr. Beall was selected for the BA II position to the

exclusion of Petitioner . The internal complaint which Petitioner

filed was with Respondent 's EEOC Office.

44 . Petitioner was not satisfied with the internal proce ss

for resolving his complaint of discrimination through the

Respondent and decided to file a complaint with FCHR , which forms

the basis for the present case.

45 . After Dr. Beall became Petitioner 's supervisor he

reviewed Petitioner 's work. He observed that Petitioner was aloof,

difficult, recalcitrant, obstructive, and had a questionable

demeanor. He found Petitioner 's work to be unorganized. He met

several times with Petitioner to address the question of

organization. Responses required from Petiti oner to Dr. Beall were

not prompt or clear when made. There was a problem about failure

to contact Dr. Beall as supervisor when Petitioner decided to take

leave. Petitioner claimed to have been at work when he was not at

work, as Dr. Beall perceived the situation.

46 . Dr. Willis , who supervised Dr. Beall at that time , was

aware of Dr. Beall 's concerns about Petitioner 's performance , i n

particular, his lack of cooperation and the inability to find

Petitioner at the office, in t h at Petitioner would leave the

premises without advising Dr. Beall .

4 7 . By comparison, d uring the time that Dr. Willis supervised

Petitioner there was a situation concerning a county health

d epartment and tests for rabies. Petitioner became involved and

gave a response to the i nquiry by the c ounty h ealth agency that

Dr. Willis considered to be inaccurate or misleading. This lead to

a sit ua tion in which the person within the Bureau of Laboratory

Services who properly should have responded to the county agency

inquiry , being addr essed by Petitioner in a manner that Dr. Willis

found troubling , as to Petitioner 's ability to work with other

persons within Respondent agency.

4 8 . Eventually Dr. Beall recommended that Petitioner be

dismissed from his position before completing hi s probationary

period. The reason for this recommendation related to Petitioner 's

demeanor, to include his willingness to cooperate w h i le undergoing

th e review of his work. The re were issues with reports rendered by

Petitioner , considered to be lacking i n professionalism, problems

with attendance and leave and a lack of progress in the list of

expectations that have been referred to earlier. Dr. Willis

concurred with the recommendation that Petitioner be dismissed.

Linda Boutwell, who was personnel offi cer within the Bureau of

L aboratory Services in Jacksonville , was also consulted concerning

the dismissal. Concerning the disposition of Petitioner 's

employment, Caroll David Fulgher was consulted as an employee of

Respondent 's Office of Human Resources i n Tallahassee . It was

explained to Mr. Fulgher that Petitioner tended to ignore his

supervisor Dr. Beall and to do w hat Petitioner preferred , contrary

to the wishes of his supervisor . It was explained to Mr. Fulgher

that the quality of Petitioner 's w ork was not satisfactory and that

difficulties were experienced in relation to Petitioner 's

attendance and leave. Following discussion with Mr. Fulgher , it

was suggested that the matter be considered by the Bureau Chief,

Dr. Chan . Mr. Fulgher prepared a lett er dismissing Petitioner from

his employment. This letter was dated October 13, 2004. It was

signed by Dr. Chan indicating his agreement with the choice to

dismiss Petitioner . Respondent 's Exhibit numbered 10 is a copy of

that letter. It was presented to Petitioner , thus terminating his

employment with Respondent .

4 9 . The supervision of Petitioner , to include supervision by

Dr. Beall , evidenced no discriminatory intent based upon race, n or

was the choice to dismiss Petitioner one motivated by any des ire to

retaliate against Petitioner for his complaint concerning the

decision to hire Dr. Beall in preference to Petitioner for the

BA II position.

CONCLUSIONS OF LAW

50 . The Division of Administrative Hearings has jurisdiction

over the parties and the su bject matter of this proceeding i n

accordance with Sections 120.569, 120.57(1), and 760.11 ( 7 ), Florida

Statutes (200 5 ) .

5 1 . Petitioner is an "aggrieved person" within the meaning of

Section 760.02 (10) , Florida Statutes ( 200 5 ). Respondent is an

"empl oyer" within the meaning of Section 760.02(7), Florida

Statutes ( 200 5 ).

5 2 . As Petitioner 's employer Respondent is accused of an

unlawful employment practice for failing to promote (hire) to the

BA II position as a black male , instead hiring Dr. Beall , a non -

Hi spanic white male to the BA II position. This action is

allegedly in violation of Section 760.10(1)(a), Florida Statutes

( 2003 ), which makes it unlawful for an employer:

To . . . fail or refuse to hire any individual,

or otherwise to discrimina te against any

individual with respect to compensation, terms,

conditions, or privileges of employment,

because of such individual's race. . . . .

5 3 . In addition , Petitioner has accused Respondent of

retaliation for discharging Petitioner from his posit ion as a

Scientist III because Petitioner complained when he was not hired

for the BA II position. By his action Respondent is accused by

Petitioner of violating Section 760.10(7), Florida Statutes ( 2004 ),

which states:

It is an unlawful employment pra ctice for an

employer . . . to discriminate against any

person because that person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified, assisted,

or participated in any m anner in an

investigation, proceeding, or hearing under

this section.

5 4 . The provisions of Chapter 760 , Florida Statutes , related

to this case are comparable to those of Title VII of the Civil

Rights of 1964, 42 U.S.C. §§ 2000e, et seq. Consequently , those

cases which interpret Title VII are applicable to Chapter 760,

Florida Statutes . School Board of Leon County v. Hargis , 400

So. 2d 103 (Fla. 1st DCA 1981); Brand v. Florida Power Corp. , 633

So. 2d 504 (Fla. 1st DCA 1994); and Florida Department of Community

Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

5 5 . In filing his complaint of discrimination with FCHR

Petitioner has complied with a time requirement set out in Section

760.11(1), Florida Statutes ( 2004 ). In turn , Petitioner ha s timely

complied with the time requir ement set forth for filing his

P etition for R elief in association with his request f or an

administrative hearing as called for in Section 760.11(7), Florida

Statutes ( 2005 ).

5 6 . Concerning the failure to hire or pro mote Petitioner to

the BA II position, while choosing Dr. Beall , Petitioner is

alleging d isparat e treatment based upon his race. Petitioner bears

the burden of proof to establish those claims as recognized in

McDonnell Douglass v. Green , 411 U.S. 792 (197 3); Texas Department

of Community Affairs v. Burdine , 450 U.S. 248 (1981) and St. Mary's

Honor Center v. Hicks , 509 U.S. 502 (1993).

5 7 . Petitioner must m e et the initial burden of establishing a

prima facie cas e of discrimination. Should Petitioner mee t that

initial burden, the burden then shifts to Respondent to articulate

a legitimate, non - discriminatory explanation for its decision to

hire Dr. Beall and not Petitioner . Department of Corrections v.

Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991). The nature of

Petitioner 's burden is one of production not persuasion. It need

only be shown that Petitioner 's decision in its hiring choice for

BA II was non - discriminatory. Alexander v. Fulton County, Georgia ,

207 F.3d 1303 (11th Cir. 2000). Where Respond ent meets it burden

of production, then Petitioner must be persuasive in his effort to

demonstrate that Respondent 's proffered reason for choosing

Dr. Beall is a pretext for intentional discrimination against

Petitioner .

5 8 . Going forward , to establish a prima facie case of racial

discrimination based upon the disparate treatment of not hiring

Petitioner for the BA II position, while favoring Dr. Beall for

that job, Petitioner must show : (1) that he is a member of a

protected minority; (2) that he was qu alified an d applied for the

promotion to BA II ; (3) that he was rejected despite those

qualifications; and (4) that someone equally or less qualified to

fill the position and not a member of a protected minority was

promoted. Lee v. GTE Florida, Inc. , 226 F.3d 1249 , 1253, (11th

Cir. 2000), relying upon Taylor v. Rynon 175 F.3d 861, 866 (11th

Cir. 1999).

5 9 . Petitioner as a black male is member of a protected

minority, who applied for and was qualified to fill the BA II

position. He was rejected de sp i t e the qualifications and

Dr. Beall , not a member of the protected minority , was placed in

the BA II position with equal qualifications.

60 . Notwithstanding the prima facie showing concerning the

treatment Petitioner received in relation to the BA II pos ition ,

Respondent 's explanation of its decision to promote to hire

Dr. Beall is not a matter of pretext. There was a legitimate

reason articulated for re - advertising the BA II position due to the

lack of competition in the first advertisement , with the

ex pectation that more applicants would improve the process for

hiring. Concerning the second advertisement Petitioner was not

discriminated against on any basis, race included , when being

considered for the BA II position under the pro cess established for

a ssessing application s and interviewing other candidates.

Respondent 's reasons for ranking Dr. Beall first and Petitioner

second and choosing Dr. Beall for the position based on that

ranking , does not evidence any form of discriminatory intent in the

hirin g process. Respondent having met its burden of production of

proof that the decision it reached to hire Dr. Beall and not

Petitioner was non - discriminatory, it was left t o Petitioner to be

persuasive in proving that the proffered reason was pretext for

in tentional discrimination. Petitioner has failed to offer proof

that establishes the explanation given by Respondent constitutes

pretext for intentional discrimination.

6 1 . Petitioner also alleges retaliation when Respondent

decided to separate him from his employment as a Scientist III , to

terminate the employment, a decision which Petitioner alleges was

motivated by his complaint when Petitioner was not hired/promoted

to the BA II position. To prove a prima facie case of retaliation

Petitioner must sh ow: (1) he engaged in statutorily protected

expression; (2) he suffered an adverse employment action ; and

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

protected activity. See Harper v. Blockbuster Entertainment Corp. ,

139 F.3d 1385, 1 388 (11th Cir. 1998). In the event that Petitioner

established a prima facie case of retaliation, it is incumbent upon

Respondent to present evidence of a legitimate non - discriminatory

reason for terminating Petitioner 's employment with Respondent .

62. Petitioner proved that he engaged in protected activity

when complaining about the failure to promote or to hire him for

the BA II position. Beyond that time he was separated from his

employment in the Scientist III position, terminated , a n employment

ac tion adverse to his interest. There was no connection between

the complaint and the termination. There was n o prima facie

showing of retaliation . Moreover , Respondent had a legitimate

reason for the separation that terminated Petitioner 's employment.

R espondent engaged in the process of evaluating Petitioner 's

performance as a probationary employee without discriminatory

intent directed to Petitioner based upon race ; rather, the basis

for deciding the issue was in relation to his performance as a

probat ionary employee. This process was as recognized in Chapter

110, Florida Statutes ( 2004 ) , in particular in view of the

discussion of probation as reflected in Section 110.227, Florida

Statutes ( 2004 ).

RECOMMENDATION

Upon consideration of the facts foun d and the conclusions of

law reached, it is

RECOMMENDED:

That a final order be entered dismissing Petitioner 's claims

of discrimination and retaliation based upon race.

DONE AND ENTERED this 28th day of Ma rch , 200 6 , in Tallahassee,

Leon Co unty, Florida.

S

___________________________________

CHARLES C. ADAMS

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 (85 0) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of March, 2006 .

ENDNOTE

1 / Petitioner did not advance his request for relief in relation

to the B RTR position calling for a disposition of that subject.

COPIES FURNISHED :

Marino M. Green

3023 Golden Pond Boulevard

Orange Park , Florida 32 073

Stephen M. Foxwell, Esquire

Department of Health

4 052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Re lations

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

issue the final order in this case.