05-003516 Jeffrey A. Sims vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, May 18, 2006.

Summary: All prior failures to accomodate handicap barred by law; current failure to promote was unproven or refuted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY A. SIMS , )

)

Petitioner , )

)

vs. ) Case No. 05 - 3516

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Respondent . )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was held in this

case on March 17, 2006, in Gainesville, Florida, before Ella

Jane P. Davis, a duly - assigned Administrative Law Judge of the

Division of Administrative Hearings .

APPEARANCES

For Petitioner: N. Mar k New, II, Esquire

Hawkin, Malin & Wenzel

Post Office Box 477

Jacksonville, Florida 32201

For Respondent: Dennis M. Flath, Esquire

Department of Children and

Family Services

1200 Northeast 55th Boulevard

Ga inesville, Florida 32641 - 2759

STATEMENT OF THE ISSUE

Whether Respondent is guilty of an unlawful employment

practice by failure to promote Petitioner on February 9, 2005,

due to discrimination against his handicap.

PRELIMINARY STATEMENT

On March 1 1, 2005, Petitioner filed a C harge of

D iscrimination with the Florida Commission on Human Relations

(FCHR).

On Au gust 22, 2005, FCHR issued its D etermination: No

Cause and Notice of Determination: No Cause. On or about

September 16 , 2005, Petitioner file d a Petition for Relief.

The case was referred to the Division of Administrative

Hearings on or about September 22, 2005. The Division's file

reflects all pleading s , Orders , and Notices entered herein.

At the March 17, 2006, disputed - fact hearing, P etitioner

testified on his own behalf and presented the oral testimony of

Madeline Davidson. Respondent presented the oral testimony of

John Almeida, Ronald Chisolm, and Jennifer Granto and had

Respondent's E xhibits 1, 2, 3, 4, 5A and 5B, and 6, admitted in

evidence.

No transcript was filed. The parties' respective Proposed

Recommended Orders have been considered in preparation of this

Recommended Order. 1

FINDINGS OF FACT

1. On March 11 , 2005, Petitioner filed a C harge of

D iscrimination dated March 1 , 2 005, with FCHR. This C harge

alleged only disability discrimination through Respondent's

failure to promote Petitioner on or about February 9, 2005. It

makes no mention of any discriminatory acts or omissions by

Respondent Employer preceding intervie ws on January 26, 2005 .

2. After an August 22, 2005, Determination: No Cause by

FCHR, Petitioner timely filed a Petition for Relief on

September 16, 2005. In addition to alleging discrimination due

to a failure to promote on February 9, 2005, the Petit ion for

Relief alleged for the first time that:

Petitioner requires a 19 - inch monitor to

perform his duties. Despite repeatedly

requesting such a monitor, the Petitioner

did not timely receive a monitor. In fact,

it was not until the Petitioner filed a

p revious Complaint with the FCHR that he

received the appropriate monitor. This was

years after his initial request.

3. The parties orally stipulated that Petitioner is

"legally blind , " and that Petitioner was a qualified candidate

for the p romotion interviewed for on January 26, 2005, which

position was awarded to a non - disabled person on February 9,

2005.

4. Petitioner's condition constitutes a "handicap" as

contemplated by Chapter 760, Florida Statutes.

5. Petitioner has been employed for 21 years by

Respondent, Department of Children and Family Services (DCF).

At all times material, his worksite has been the North Florida

Evaluation and Treatment Center (NFETC) in Gainesville, Florida.

This facility houses accused persons who are incompeten t to

proceed to a criminal trial and those found not guilty in a

court of law by reason of insanity. At the time of his

application for the promotion at issue , Petitioner was a "T.R.

Senior Supervisor I. " He has been at that grade level for 19

years , and by all accounts is rated an excellent, long - term

employee. His position involves supervision of five officers

and twenty inmates.

6. Petitioner's handicap makes it difficult for him to

read and difficult for him to use a computer. To fulfill all

the requirements of his current position and the promotional

position at issue, he requires software for his computer which

is called " Zoom Tech ." Without this accommodation, he cannot

read necessary information on a computer screen.

7 . Petitioner became aware and informed of the Zoom Tech

software, which requires a 19 - inch monitor, through the Division

of Blind Services (DBS) , in December 19 98 .

8 . Petitioner repeatedly requested that Respondent

E mployer provide him with the Zoom Tech software and a 1 9 - inch

monitor.

9 . Respondent never provided the Zoom Tech software as an

accommodation for Petitioner's handicap , so DBS provided Zoom

T ech software to Petitioner both at home and at DCF in late 1998

or January 1999 . However, Respondent Employer refu sed to load

the software onto Petitioner's computer at work.

10. In April of 1999, Madeline Davidson of DBS met with

Petitioner and Respondent's representatives regarding having the

Zoom Tech software loaded onto Petitioner's computer at work.

One of Respondent's technicians informed Petitioner and

Ms. Davidson that the Zoom Tech software could not be loaded

onto Petitioner's work computer until June of 1999.

1 1 . Ms. Davidson offered to have a DBS software technician

install the Zoom Tech softw are on the work computer . Respondent

maintained that only its own technicians were permitted to work

on its computers.

1 2 . Respondent did not install the Zoom Tech software on

Petitioner's computer at work until August 1999 , a delay of

eight months.

1 3. Prior to receiving the Zoom Tech software in August

1999, Petitioner was unable to use his DCF computer, was not

able to complete work on a timely basis, and had to rely on

other supervisors and subordinate staff members to assist him in

keeping up - to - date on issues that needed his attention. With

the Zoom Tech software, he is able to fully perform all aspects

of his job description.

14. Petitioner's request for installation of the Zoom Tech

software provided by DBS was a request for a reasonable

acco mmodation of his visual handicap. Respondent's delay of

eight months in installing it was unreasonable.

1 5 . Petitioner testified that he could not use the Zoom

Tech software on his 17 - inch monitor and that Respondent did not

provide him with a 19 - inch mo nitor at work until 2005, after

Petitioner ha d filed a charge of discrimination prior to the

current charge of discrimination at issue in this cause.

However, because Petitioner has an excellent work history

predating 2005 ; because Petitioner interviewed for the promotion

at issue in the instant cause on January 26, 2005 ; because the

cause at issue herein (promotion) arose when someone else was

promoted in place of Petitioner on February 9, 2005 ; because the

current charge of discrimination underlying the instant cause

was filed March 11 , 2005 ; and because of the chronology related

by Petitioner of promotional interviews in 2003 and 2004 ( see

Finding of Fact 20) ; and because of Petitioner's description of

problems with his 19 - inch monitor ( see Findings of F act 16 - 19),

it appears that Petitioner was probably mistaken about the year

he received the 19 - inch monitor from Respondent , and it further

appears that he first received a 19 - inch monitor from Respondent

sometime prior to 2005 .

1 6 . Also, because Petit ioner testified that after he filed

a prior charge of discrimination, his computer failed completely

and Ron Leslie , NFETC'S new assistant administrator , got him a

new computer and the 19 - inch monitor , it is not clear whether

Respondent provided the 19 - inc h monitor as part of a settlement

of the prior c harge of d iscrimination or for another rea s on .

Therefore, although Petitioner requested the 19 - inch monitor as

a reasonable accommodation of Petitioner's handicap and

Respondent unreasonably delayed providin g the reasonable

accommodation, it appears Petitioner was provided with the

requested accommodation before the current promotion issue

arose , and that DCF’s failure to timely provide the 19 - inch

monitor was at least included within a prior c harge of

d iscri mination .

1 7 . Petitioner also testified that after receiving the 19 -

inch monitor , Respondent periodically got computer upgrades or

other changes which interfered with the Zoom Tech software on

Petitioner's DCF computer. During these periods, Petitioner

experienced delays in having the Zoom Tech software re -

installed. This testimony simultaneously suggests that

Petitioner had a 19 - inch monitor for some period of time before

2005, instead of not getting one until 2005 , and that d uring the

intermittent per iods of time after 1999 when Petitioner did not

have the necessary software, he was intermittently un able to use

his work computer or perform some functions of his job.

18. On one such occasion, Petitioner had to go to a

supervisor above his direct supe rvisor in the normal chain of

command because both his computer and its Zoom Tech software had

been removed from his desk while he had been on vacation. A t

that point, Petitioner's immediate supervisor had not solved

Petitioner's computer problems for 18 days . W ithin one work - day

of his report to the senior supervisor, the senior supervisor ,

D e nny Guest, had Petitioner's software, computer, and monitor

squared - away . Again, there is no clear time line of when this

event occurred, but it surely occurred be fore the promotion

interviews January 26, 2005, and the evidence as a whole shows

that Petitioner had a suitable monitor before 2005. It also

shows that on that particular occasion, which Petitioner felt

was particularly egregious, Petitioner was without reasonable

accommodation for his handicap for only 21 days.

1 9 . During those times when Petitioner did not have access

to the necessary software, he was unable to perform certain

work. In addition, other NFETC employees were able to use their

computers at those times that Petitioner was not able to use

his. Petitioner believed this situation hindered his ability to

be promoted.

20 . In 2003 and 2004, Petitioner interviewed for several

promotions. He was not selected for any of them.

2 1 . There after, Petitioner scheduled a meeting with Ron

Leslie to determine what Petitioner could do to enhance his

chan c es of getting a promotion in the future. Madeline Davidson

attended the meeting at Petitioner's request. During that

meeting, Mr. Leslie sugge sted that Petitioner work more with the

computer and join groups and committees to work out problems as

other staff members did. Mr. Leslie told Petitioner and

Ms. Davidson that if Petitioner were promoted , he would be

required to make presentations, and as a result of Petitioner's

handicap , Mr. Leslie questioned whether Petitioner could do

that. Petitioner and M s. Davidson informed Mr. Leslie that his

perception was in correct and that Petitioner was, in fact,

c apable of making such presentations using bo ards and his new

visual aids .

22. In response to this meeting, Petitioner joined the

EEOC Committee and attended its day - time meetings, even though

he was on the night shift.

2 3 . In January of 2005, Petitioner applied for a

Supervisor II position . Sp ecifically, he applied for the

Building 10 Night Shift Building Manager position, classified as

"Unit T/R Senior Supervisor II – F/C - SES."

2 4 . NFETC management appointed a three - person selection

committee to interview qualified candidates for the promo tional

slot. John Almeida, Ronald Chisolm, and George McClain served

on the selection committee.

2 5 . Petitioner was one of seven qualified candidates

interviewed by the selection committee .

2 6 . The interview included written and oral questions. 2/

2 7 . Prior to the interviews, Ronald Chiso l m was told by

Ron Leslie that Petit i oner's eyesight "might be an issue;" that

Mr. Leslie wanted to be fair; and that Mr. Leslie did not want

any complaints about unfairness.

2 8 . After a lot of discussion of ho w it was to be

accomplished, Petitioner was offered the use of his own computer

and special monitor to read the written part of the interview

and to type his responses. However, Petitioner elected to have

the selection committee read him the questions and transcribe

his answers.

29. Mr. Chisolm had concerns that the oral reading and

transcription of oral answers method, which Petitioner had

selected, might give Petitioner a greater chance of success than

the other candidates, because Mr. Chisolm perceiv ed the

situation as giving Petitioner two "verbal" (oral) tests instead

of one oral and one written test like all the other candidates.

At the suggestion of the Employer’s Human Resources Office,

Mr. Chisolm drafted a statement for Petitioner to sign ,

ack nowledging that the foregoing procedure was Petitioner's

choice.

30 . In fact, the typed statement Petitioner signed, and

which was witnessed by the three interviewers, only acknowledges

that the questions were read to him at the specific date and

t ime named. Petitioner testified that the interview team had

told him that he could not take the written questions out of the

interview room and that Zoom Tech could not be placed on the

computer in the testing area; this may have been a

misunderstanding o n Petitioner's part . Mr. Almeida testified

credibly that he could put any font or the Zoom Tech software on

any computer. Mr. Almeida and Mr. Chisolm both testified

credibly that such an offer had been made to Petitioner and that

Petitioner 's choice of t ranscription had been of Petitioner’s

free choice , sig nified by his signing the described statement.

The undersigned did not get the sense that Petitioner was

coerced or that he involuntarily agreed to have the written

questions read to him or transcribed for him.

3 1 . Respondent entered into evidence the entire selection

package comprised of eight exhibits detailing the scoring of

each individual candidate, as well as the final calculations of

the composite of all the interview scores.

3 2 . The numeric r esults of the interviews were compiled by

the three - member selection committee and forwarded to a three

member management team in NFETC's Operations Department for a

final decision on whom to promote.

3 3 . The highest candidate score was that of Wat son Louidor

at 50.50. Petitioner scored second at 46.10. The other five

candidates scored in a lower range between 44.96 and 29.45.

3 4 . The verbal (oral) part was worth 25 percent of the

score. The written part was 50 percent of the score. Time and

at tendance counted for 15 percent of the score. Prior

disciplinary actions were 10 percent of the score. Petitioner

and the highest scoring candidate had very close scores, but it

was the disparity in the written portion of the interview which

the sighted higher scoring candidate wrote for himself and which

Petitioner had written for him by Mr. Almeida which was most

significant :

PETITIONER LOUIDOR

Verbal (25%) 7.165 6.750

Written (50%) 35.330 40.000

Time and

Attendance (15%) 2.250 2.250

Disciplinary (10%)

Action 1.300 1.500

46.100 50.500

3 5 . However, Petitioner has not claimed that he had too

little time to correctly answer or too little time to complete

the written interview, and Pe titioner has not suggested that his

oral answers on the written questions were not correctly

transcribed for him .

3 6 . The three - member Operations Department management team

selected the top - scoring candidate, Mr. Louidor, for the

p romotion .

3 7 . Mr. Louidor had worked at NFETC less time than

Petitioner . Petitioner felt he , not Mr. Louidor, was the most

qualified candidate , due to Petitioner’s much longer experience

working at NFETC and because of post - interview conversations

Petitioner had with Mr. Almeida and Jennifer Granto. For these

reasons, Petitioner believed he had been discriminated against

because of his handicap.

3 8 . Petitioner testified that after his interview,

Mr. Almeida , the member of the interview team who had

transcribed his oral answers, told Petitioner that he had been

the high est scorer on the interview portion and that Petitioner

would get the promotion . Petit i oner further testified that

Ms. Granto , a member of the three - member management team which

made the final promotion d ecision, had led Petitioner to believe

that although he was not the highest scorer, as the second

highest scorer, Petitioner would get the promotion if the

highest scorer did not accept the promotion, which was likely.

3 9 . Ms. Granto and Mr. Almeida ack nowledged that they had

each had a con versation about the interviews with Petitioner,

but each stated that Petitioner had misunderstood their

encouragement for his good score and good interview, as a

promise of the promotion.

40 . Mr. Almeida testified c redibly that when he discussed

the interview process with Petitioner, it was in general terms

only; he never referred to the scoring process and final scores

of the candidates; and he was certain that he had never told

Petitioner that Petitioner was the to p - scoring candidate.

41 . Ms. Granto testified that Petitioner was considered to

be a good employee and had clearly made progress in his

presentation of himself in interviews for promotions.

Petitioner and Ms. Granto both testified that she had encouraged

Petitioner in the past to show more initiative and that in

response to suggestions by Ms. Granto and others , Petitioner had

elected to join the EEOC C ommittee. ( See Finding s of Fact 21 -

22 ). Ms . Granto also testified that she and the other two

management team members had felt that Petitioner's EEOC

C ommittee membership was a step in the right direction towards a

promotion for him.

4 2 . Ms. Granto further testified that the management

team's final selection for promotion had been based on the

candidates' respective interview scores , plus the management

team's personal knowledge of the top - scoring candidate ,

Mr. Louidor . In some prior situations, management had promoted

a lower - scoring candidate over a higher - scoring candidate, but

in this instance, they v iewed the top - scoring candidate ,

Mr. Louidor, as being energetic, positive, possessing

initiative, and having new ideas that he had been regularly

bringing to the attention of his supervisors for the last year ,

so that selecting him for the promotion was a n easy choice.

4 3 . Regarding Petitioner, Ms. Granto testified that she

and the other management team members felt that Petitioner

performed his job well but he had not presented as positive an

interview as did the top - scoring candidate, and they fe lt that

the top - scoring candidate would bring more energy to the

promotional position. They felt Petitioner's weak spot was his

lack of initiative above and beyond his basic job description.

CONCLUSIONS OF LAW

4 4 . The Division of Administrative Hearin gs has

jurisdiction over the subject matter of , and the parties to ,

this proceeding , in accordance with Section 120.569, Subsection

120.57(1), and Chapter 760, Florida Statutes.

4 5 . Herein, no objection was interposed , so Petitioner

went forward to prese nt evidence of Respondent's failure to

accommodate his handicap : F irst, by Respondent's refusal to

install or permit the installation of Zoom Tech software between

December 1998 and August 1999; and second, by Respondent's

failure or refusal to provide a 19 - inch monitor until some date

which is unclear. Petitioner's request (s) to provide either , or

both , accommodations are concluded to be reasonable. However,

neither failure to accommodate was specifically named in

Petitioner's March 11 , 2005, Charge of Discrimination which is

the subject matter of the instant case.

4 6 . A cts of discrimination in employment are time - barred

unless a Charge of D iscrimination is filed within 365 days. See

Section 760.11(1), Florida Statutes, and Young v. Dept. of

Business and Professional Regulation , DOAH Case No. 03 - 1140,

(RO: July 1, 2003; FO: February 26, 2004) and cases cited in the

Recommended Order; Woods v. American Red Cross Blood Services ,

DOAH Case No. 01 - 1763 (RO: September 17, 2001; FO: July 26,

2002); and Servi ces v. Volusia County Government , DOAH Case No.

00 - 1219 (RO: May 1 , 2001; FO: September 15, 2001).

4 7 . Therefore, Respondent's failure to install the Z oom

T ech software and to provide a 19 - inch monitor to Petitioner

between December 1998 and August 1999, w as discriminatory and

shocking to the public conscience , but it is time - barred and may

not be redressed in this proceeding. No failure of the Employer

to provide hardware (monitor) or software ( Zoom Tech ) prior to

March 11 , 2004 , (365 days prior to the filing of the instant

charge of discrimination) may be redressed in this proceeding.

48. Petitioner did not prove the date he first got a 19 -

inch monitor, and although he claimed it was not until 2005, the

greater weight of the credible evidence suggest s it was much

earlier . The most that can be determined from the evidence

presented is that after August 1999, the longest period

Petitioner was without the combined hard ware and software

necessary to reasonably accommodate his handicap was 21 days at

some point prior to January 26, 2005. Assuming arguendo , that

this problem (of no 19 - inch monitor and frequent downtime due to

computer upgrades, etc.) occurred between March 11 , 200 4 , and

March 11 , 2005, so as to not be time - barred, the evidence herein

still shows that as soon as Petitioner approached the correct

supervisor , the problem was corrected within 24 hours , which at

worst , is a de minimus failure to accommodate .

49. Moreover, putting a light most favorable to the

Petitioner on the facts, it appear s that the accommodation of a

19 - inch computer monitor was resolved either via settlement of a

prior c harge of d iscrimination or by another form of accord and

satisfaction. Certainly, Petitioner’s evidence shows that DCF’s

initial failure to provide a 19 - inch monitor was/is part of a

prior and different charge of discrimination than the one that

forms the basis of the instant case so that, as a result, it

should not be addressed here.

50. It is also noted that Respondent's eight - month delay

in installin g Zoom Tech software to accommodate Petitioner in

1999 , Respondent's delay in providing the 19 - inch monitor ,

whenever that delay occurred, and the 21 days of downtime and

other intermittent periods of downtime were not raised in the

March 11, 2005, charge of d iscrimination which gave rise to this

instant case . Therefore, FCHR never had an opportunity to

investigate or rule on th o se allegations in the instant case ,

and Petitioner arguably was not entitled to add such new charges

via his Petition for Relief after FCHR had entered its

August 22, 2005, Determination: No Cause , in relation to his

March 11 , 2005 , c harge of discrimination , unless the newly -

alleged acts arose between the filing of the instant c harge and

p etition. 3/

51 . All that said , just beca use Petitioner is not entitled

to relief (damages) based on those issues which are time barred ,

which were otherwise previously determined, or which were not

considered in the FCHR's Determination , does not mean that those

earlier failures by the Employer to reasonably accommodate

Petitioner's handicap may not be considered herein for the

purpose of weighing credibility or assessing the allegations

which have been timely and properly named in the March 11 , 2005 ,

C harge and subsequent Petition .

52. It is, t herefore, time to consider the January 26,

2005, interviews and February 9, 2005, promotion which are the

subject s of the March 11 , 2005, C harge and Petition.

53. Petitioner might have done better at the interview

level if he had used Zoom Tech on a 19 - in ch monitor to take the

written portion of the January 26, 2005, interview. Then again,

he might not have done better. Under the circumstances,

Respondent Employer had an obligation to offer him the option to

use Zoom Tech and a 19 - inch monitor to answer the interview

questions, but the greater weight of the evidence is that

Petitioner rejected that methodology.

54. Two credible members of the selection committee

(Almeida and Chisolm) maintained that Petitioner elected to have

someone else ask him the wri tten questions orally and write his

answers for him.

55. Herein, we do not have a situation in which Petitioner

lost interview points because he was slower or less accurate due

to the Employer's failure to provide a computer and software

which accommod ated his handicap.

56. Nor is this a case in which Petitioner has contended

that his oral answers were inaccurately or incompletely

transcribed.

57. It is conceivable that Petitioner might have done

better in the January 26, 2005, interview phase if he had been

able to use the Zoom Tech and a 19 - inch monitor during the

previous periods Respondent stone - walled or dragged its feet in

initially providing them ( see Finding of Fact 13), or during the

periods of intermittent downtime thereafter ( see Fin dings of

Fact 17 - 19), but no clear nexus for such speculation was

demonstrated.

58. Finally, this case hinges not upon discrimination

against a handicapped employee, but upon Petitioner's

misunderstanding of two post - interview conversations.

59. Two cre dible witnesses (Almeida and Granto) denied

Petitioner's claim that they had told him he would get the

promotion on the basis of his interview score. In fact, even

Petitioner testified that Ms. Granto had only told him that he

had come in second on the in terviews and would get the promotion

only if the top - scorer declined the promotion or did not get the

promotion for some other reason.

60 . While a natural suspicion may arise where an elaborate

interview and testing scheme is in place and the ultimate

app ointment committee ignores the top candidate in favor of a

lower - ranking candidate, that also is not the situation here.

Here, the top - scoring interviewee was also the interviewee

chosen by the management team which issued the promoti on .

61. It is conc eivable that at the point that the

management team selected the highest scoring candidate over

Petitioner, they may have misinterpreted , as a lack of

initiative , problems Petitioner had suffered due to intermittent

computer problems after August 1999 ( see Findings of Fact 17 -

19), but if so, it is a nother speculative comparison. Ms.

Granto's comments were not so much a negative critique of

Petitioner's past performance as they were a positive critique

of Mr. Louidor's track record of innovative suggestions

presented to supervisors over the year immediately preceding his

promotion. Moreover, Petitioner had not passed the threshold

level of becoming the highest - scoring candidate. It would have

been an exception to its own procedures if the management team

ha d selected anyone other than the highest scorer at the

interview level.

62 . To establish a prima facie case of discrimination,

Petitioner needed to establish that he is a member of a

protected class or group; that he is qualified for the position

in ques tion; that despite his qualifications , he was not

selected for the position (he was subjected to an adverse

employment decision); that someone was selected who had similar

qualifications and who was not a member of the protected group;

that he was treated less favorably than similarly situated

persons outside the protected group; and that there is some

causal connection between his membership in the protected group

and the adverse decision. McDonnell - Douglas Corporation v.

Green , 411 U.S. 792 (1973) ; C a nin o v. U.S. E.E.O.C. , 707 F.2d

468 (11th Cir. 1983).

63 . Petitioner has established all but the last prong of

the prima facie test. He has not established a causal

connection between his handicap and the adverse employment

decision not to promote him .

64 . Respondent Employer’s prior insensitivity and

discriminatory behavior by delaying r easonable accommodation s of

Petitioner's handicap ( delay in installation and delay in

updating Zoom Tech and the 19 - inch monitor ) although proven , 4/ is

not the type of egregious behavior which equate s with , or

prove s , either a deliberate manipulation of the January 26,

2005, test scores of seven applicants nor handicap

discrimination in the February 9, 2005, appointment of the top

scorer , Mr. Louidor .

65 . Assuming argue ndo , but not ruling, that a prima facie

case has been presented, once an employer articulates a

legitimate non - discriminatory explanation for its actions, the

burden shifts back to the charging party to show that the

explanation given by the employer was a pretext for intentional

discrimination. "The employee must satisfy this burden by

showing directly that a discriminatory reason more likely than

not motivated the decision or indirectly by showing that the

proffered reason for the employment decision is not wort h y of

belief. " Dept. of Corrections v. Chan d ler , 582 So. 2d 1183 at

1186; Alexander v. Fulton County, GA , 207 F.3d 1303 (11th Cir.

2000). Herein, Respondent has offered a legitimate, non -

discriminatory reason for the 2005 failure to promote :

s pec ifically, th at Petitioner scored second of all the

candidates who applied for the promotion and that the promotion

was awarded , not to Petitioner, but to the highest scorer.

Respondent's burden is only that of production, not proof, but

even so, no showin g of pretext has been made.

66 . Petitioner has not carried his burden of proof and

cannot prevail.

RECOMMENDATION

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

is

RECOMMENDED that the Charge of Discrimination and Petition

for Relief be di smissed.

DONE AND ENTERED this 18th day of May , 2006, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 18th day of May , 2006 .

ENDNOTE S

1 / It is noted that there is a paucity of references to the

testimony a nd exhibits within each proposal.

2/ " Verbal” is the term used on the interview sheet. “Oral” is

the correct term for “spoken words,” as opposed to written

words.

3 / New or different types of discrimination that have not been

alleged in an underlyi ng charge of d iscrimination, (such as

“retaliation” or “gender” added to “handicap,” ) clearly may not

be alleged for the first time in the Petition for Relief or at

the disputed - fact hearing , because of Section 120.57(1), Florida

Statutes. In those situat ions, there is a bright line that

cannot be crossed. FCHR must first have an opportunity to

investigate the allegations of the c harge, and only when FCHR

has entered its "proposed final agency action" by way of a

Determination of "Cause" or "No Cause" on the contents of th at

charge of discrimination , may a Petition for Relief which

attacks that proposed final agency action be filed. ( See Young

v. Department of Business and Professional Regulation supra . and

cases cited therein.) In other words, if FCHR h as never been

made aware, by the charge of discrimination, of what types of

discrimination are in dispute, i.e. “retaliation” or “gender,”

FCHR certainly has not acted on those claims in its

"Determination," which constitutes FCHR's proposed final agency

a ction, and therefore, the Division does not acquire

jurisdiction of those issues by the Petition for Relief and

referral.

Where a general allegation of continuing or “pattern

discrimination” over a period of time and the date of the last

act of di scrimination , is included in the initial charge (not

the situation here) , the line barring addition of allegations is

less bright under Section 120.57(1), Florida Statutes , and the

Division, FCHR, and courts have usually relied on the 365 days’

statute of limitations to strike it.

The present situation is an even grayer area under Section

120.57(1), Florida Statutes, but the addition of the st ale

factual allegations herein (failure to provide software and 19 -

inch monitor at various times) is arguabl y barred on the same

legal theory for the reasons previous cited.

4/ Herein, it was not possible to make any specific findings , by

name , of a DCF employee responsible for these prior acts , but

DCF should be cautioned by this Recommended Order that any

s imilar future discrimination could subject State employees to

discharge. See § 760.11(15), Fl a. Stat.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

N. Mark New, II, Esquire

Heekin, Malin & Wenzel

Post Office Box 477

Jacksonville, Florida 32201

Dennis M. Flath, Esquire

Department of Children and

Family Services

1200 Northeast 55th Boulevard

Gainesville, Florida 32641 - 2759

Cecil Howard, General C ounsel

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 Orde r. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.