07-003263 Steven L. Boles vs. Santa Rosa County Sheriff`s Office Status: Closed Recommended Order on Wednesday, December 5, 2007.

Summary: Petitioner failed to prove he was passed over for promotion to sergeant for a discriminatory reason. Respondent demonstrated a legitimate, non-discriminatory reason for the promotion of other candidates.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN L. BOLES , )

)

Petitioner , )

)

vs. ) Case No. 07 - 3263

)

SANTA ROSA COUNTY SHERIFF ' S )

OFFICE , )

)

Respondent . )

)

RECOMMENDED ORDER

This caus e came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on September 27 , 200 7 , in Milton ,

Florida.

APPEARANCES

For Petitioner: Steven L. Boles , pro se

262 County Road 617

Hanceville, Alabama 35077

For Respondent: Robert W. Evans, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street , Suite 100

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue is whether Respondent committed an act or acts of

age discrimination against Petitioner by not selecting him for

promotion to s ergeant with the Santa Rosa County Sheriff ' s

Office .

PRELIMINARY STATEMENT

Petitioner filed an Employment Comp laint of Discrimination

with the Florida Commission on Human Relations ( " FCHR " ) on

September 13, 2006. FCHR issued a Notice of Determination: No

Cause on June 15, 2007. Petitioner filed a Petition for Relief

with FCHR on July 13, 2007. That Petition wa s referred to the

Division of Administrative Hearings (Division) on July 18, 2007.

An Initial Order was issued by the Division on that date

followed by a Notice of Hearing and Order of Pre - hearing

Instructions on August 20, 2007, setting the matter for he aring

on September 27, 2007. The hearing was conducted that day

before the undersigned in Milton, Florida.

At the hearing, Petitioner testi fied on his own behalf and

offered E xhibits numbered 1 through 29 into evidence , all of

which were admitted except E xhibits numbered 10, 15, 24, 26,

and 29 . Respondent presented the testimony of Major Randy Steve

Collier and Detective Earl Gene Griffin , III, and offered

E xhibits numbered 1 through 5 into evidence.

A Transcript was filed on October 15, 2007 . After t he

hearing, Petitioner and Respondent filed their Proposed

Recommended Orders on October 25, 2007 .

References to statutes are to Florida Statutes (200 6 )

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, Steven L. Boles, was employed at the San ta

Rosa County Sheriff ' s Office in April 2001 as a deputy sheriff.

2. Petitioner ' s date of birth is June 15, 1958, making him

approximately 47 - 48 years old at all times related to the

promotion issues , which are the subject of this proceeding.

3. Petit ioner completed 34 college classes while a deputy

sheriff and attained a Bachelor ' s Degree from Troy State

University . He was continuing his education towards a Master ' s

Degree during the promotion period at issue.

4. Petitioner had over 20 years ' exper ience in the United

States Air Force, during which his duties included managing a

24 - person flight, supervising, planning, administering, and

executed law enforcement and security training for a 270 - person

unit.

5. The Florida Department of Law Enforce ment recognized

Petitioner ' s qualifications as being equivalent to those

required by the State of Florida for certified law enforcement

officers.

6. During Petitioner ' s time as a deputy sheriff, he worked

one position besides his road patrol duties. In 2003, he

transferred to a property detective position where he served for

almost a year . When he did not receive training that he deemed

necessary to better perform his job, he transferr ed back to his

road patrol position.

7. Petitioner was certified as an all - terrain vehicle

( " ATV " ) instructor in April 2006.

8. Petitioner did not serve in a supervisory capacity

while employed by Respondent.

9. Under Sheriff Wendell Hall ' s administration, the

promotional process for sergeant and lieutenant was establ ished

in G eneral Order D - 017. Applicants were ranked on an

eligibility list based upon their scoring for specific criteria:

advanced training courses, formal education, seniority,

supervisory experience, written examinations, and an oral review

board. Sh eriff Hall promoted from the top of the list in order

of ranking.

10. The Fraternal Order of Police ( " FOP " ) is the

bargaining agent for deputy sheriffs. During collective

bargaining negotiations in 2005, the FOP asked Sheriff Hall to

change the promotio nal process to provide greater flexibility in

promotions. The FOP believe s that the top - ranked applicant is

not necessarily the best candidate for an available position.

11. The s heriff and the FOP executed a collective

bargaining agreement ( " CBA " ) in 2 005 to implement changes in the

promotional process that would afford more flexibility.

Pursuant to Article 9 of the CBA, the parties agreed that

General Order D - 017 would be utilized in promotions.

12. To effect the changes requested by the FOP, Genera l

Order D - 017 was revised in December 2005. The new policy

continued to provide that applicants would be ranked based upon

scoring for specific criteria, but added field training officer

experience ("FTO") as a new category to be scored.

Additionally, th e policy provided that the division captains and

department major would review the promotion roster and provide a

written recommendation to the s heriff for promotion of

candidates. The s heriff would be provided with the top five

names for one vacancy and one additional name for each

additional vacancy.

13. The new policy for promotion was provided to the FOP

for review prior to its enactment. Pursuant to the CBA , the FOP

could request impact bargaining within ten days of receipt of

the policy. Because the FOP did not object to the policy, it

became effective on December 26, 2005.

14. The revised policy, General Order D - 017, was provided

to all members of Respondent, including Petitioner. Petitioner

was aware that the process had been changed to permi t the

division captains and the department major to make written

recommendations for promotion.

1 5 . Petitioner received a memorandum from Sheriff Hall on

February 17, 2006, informing him of his eligibility to sit for

the written promotion examination on March 22 , 2006 . Petitioner

learned in that memorandum that credit for training courses and

formal education would not be given for anything that had not

occurred and was not present in the training office on or before

March 10, 2006.

16 . When vacancies for sergeant and lieutenant became

available in 2006, the promotional process followed the revised

policy. Points were allocated to the applicants under the

revised criteria, and the top 20 candidates were ranked.

17. Major Steve Collier and Captains Ja ck Onkka and Jim

Spencer met on May 26, 2006, pursuant to the newly - adopted

policy, to review the applicants and make promotion

recommendations to the s heriff. Because there were six

vacancies for sergeant, the top 10 names on the roster were

reviewed.

1 8. Petitioner was ranked number five on the roster.

19. Major Collier and Captains Onkka and Spencer concluded

that the primary consideration for the recommendations for

sergeant and lieutenant would be the motivation and initiative

displayed by the app licants while employed at the Sheriff ' s

Office. Believing that these qualities demonstrate the

foundation of leadership, Collier, Onkka, and Spencer discussed

each of the applicants to determine who best exemplified these

characteristics.

20. Collier, O nkka, and Spencer recommended six applicants

who were ranked in the top 10 of the promotional roster: George

Hawkins, Joseph Dunne, William Dunsford, Wayne Enterkin, Jerry

Salter, and Todd Reaves. Prior to the review by Collier, Onkka,

and Spencer, three of these deputies were ranked higher in the

roster than Petitioner and three of them were ranked lower.

21. The reviewers selected these six deputies for

promotion to sergeant because each had undertaken an assignment

outside his normal duties or otherw ise had distinguished himself

in a manner that set him apart from the other candidates.

22. George Hawkins, ranked number one on the roster, was

recommended as a result of his field officer training

experience. Further, he performed as an acting supervi sor when

the shift sergeant was absent, which the reviewers deemed

significant. Field officer training was particularly valued by

the reviewers because it required the deputy to serve as a front

line supervisor for trainees as well as an instructor and

me ntor.

23. Joseph Dunne also had performed field officer training

and consistently volunteered for special operations projects

that were after hours.

24. William Dunsford, although not a FTO , was a member of

the hostage negotiation team and, pursuant t o this assignment,

was on - call 24 hours a day, seven days a week. Similar to

Dunne, Dunsford volunteered for special operations after hours.

He particularly impressed Major Collier with noteworthy arrests

and for his high level of professionalism and mot ivation.

25. Wayne Enterkin was recommended as a result of his

field officer training experience and his initiation of the drug

court officers program , which involved juvenile offenders. He

particularly distinguished himself in the drug court program.

26. Jerry Salter was recommended as a result of field

officer training experience and his assignment to the special

weapons and tactics ( " SWAT " ) team. As in the case of hostage

negotiators, SWAT team members must undergo additional tactical

training and are on - call 24 hours a day, seven days a week.

They must also maintain a high level of physical fitness to

participate in this unit.

27. Todd Reaves was recommended because of his field

officer training experience and his participation on the hostage

ne gotiation team. Reeves also made noteworthy arrests in the

northern part of the county, which was not a particularly busy

area. Reeves had also received a lifesaver award for his

extraordinary actions in providing care to a canine officer who

was shot by a suspect.

28. Petitioner was not recommended because the reviewers

were not aware of any activities and assignments that set him

apart from the other candidates. They were unaware of the fact

that Petitioner had become certified as an ATV instructor , since

that occurred on April 21, 2006, after the March 10, 2006,

information deadline.

29. The reviewing panel would not have given as much

credit for Petitioner being an ATV instructor, even if his

certification had occurred before March 10, 2006, sin ce this

activity did not require as much of a time commitment as a field

training officer, hostage negotiation team member, or SWAT team

member.

30. The panel also passed over William Bass (ranked number

two on the roster) and Christian Turcic (ranked nu mber seven).

Deputy Bass was deemed not particularly motivated and refused a

transfer to a busier district when it was offered.

31. Deputy Turcic was passed so he could complete his new

assignment as a trainer of a new dog. Once he completed his

assign ment, he received a promotion to sergeant in

September 2006.

32. The age of the candidates for promotion was not a

topic discussed by the reviewing panel.

33. Sheriff Hall promoted Deputies Dunne, Dunsford,

Enterkin, Hawkins, Reeves, and Salter in Jun e 2006. He based

his decision to promote these deputies upon the recommendations

of his staff without regard to their age.

34. When Petitioner became aware of the identities of the

promoted deputies, he tendered a brief letter of resignation,

dated June 15, 2006, in which he stated that his total loss of

faith in the administration caused the need for him to leave

immediately.

35. Petitioner followed the brief letter with an email to

Sheriff Hall on June 16, 2006, in which he elaborated on his

qualific ations and justifications of why he should have received

a promotion to sergeant. Petitioner informed Sheriff Hall that

he believed a " good - ol - boy system " was in place in the Santa

Rosa County Sheriff ' s Office.

3 6 . In his letter and email resigning from Respondent,

Petitioner made no mention of his age as a factor in his failure

to be promoted to sergeant.

3 7 . Petitioner never inquired as to why he was not

promoted. He met with Sheriff H all , who informed him that he

could be considered for promotion at a later date and encouraged

him to contact Major Collier.

3 8 . Petitioner never spoke with Major Collier regarding

his failure to be promoted to sergeant.

CONCLUSIONS OF LAW

3 9 . The Division of Administrative Hearings has

jurisdiction over the subj ect matter of and the parties to this

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

Stat.

40 . The Florida Civil Rights Act of 1992 (the " Act " ) is

codified in Sections 760.01 through 760.11 and 509.092, Florida

Statutes. " Because th[e] [A ]ct is patterned after Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e - 2, federal case

law dealing with Title VII is applicable. " Florida Department

of Community Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st

DCA 1991).

4 1 . Petitioner is an " aggrieved person ," and Respondent an

" employer " within the meaning of Subsections 760.02(10) and (7),

Florida Statutes, respectively. Section 760.10, Florida

Statutes, makes it unlawful for Respondent to discharge or

otherwise discriminate against Pet itioner based on an employee ' s

disability.

4 2 . Among other things, the Act makes certain acts

" unlawful employment practices " and gives FCHR the authority ,

following an administrative hearing conducted pursuant to

Sections 120.569 and 120.57, Florida Stat utes, to issue an order

" prohibiting the practice and providing affirmative relief from

the effects of the practice, including back pay ," if it finds

that such an "unlawful employment practice" has occurred.

§§ 760.10 and 760.11(6), Fla . Stat.

4 3 . The " unlawful employment practices " prohibited by the

Act include those described in S ubs ection 760.10(1)(a), Florida

Statutes, which provides as follows:

It is an unlawful employment practice for an

employer:

(1)(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual ' s race, color, religion, sex,

national origin, age, handicap, or marital

status.

4 4 . In the instant case, Petitioner has alleged that the

Santa Rosa County Sheriff ' s Office committed such an " unlawful

employment practice " when it acted with discriminatory intent

based on his age by not promoting him to the rank of sergeant

when, based upon the examination and scoring system, he was

ranked fifth. Six deputies out of the 20 ranked , were promoted

to sergeant, three of whom were ranked higher than Petitioner,

and three of whom were ranked lower.

4 5 . At the administrative hearing held in this case,

Petitioner had the burden of proving that he was the victim of a

discriminatorily motivated action. See Department of Banking

and Finance Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 934 (Fla. 199 6)

( "' The general rule is that a party asserting the affirmative of

an issue has the burden of presenting evidence as to that

issue. '" ); Florida Department of Health and Rehabilitative

Services v. Career Service Commission , 289 So. 2d 412, 414 (Fla.

4th DC A 1974) ( " [T]he burden of proof is ' on the party asserting

the affirmative of an issue before an administrative

tribunal. '" ); and Mack v. County of Cook , 827 F. Supp. 1381,

1385 (N.D. Ill. 1993) ( " To prevail on a racially - based

discriminatory discharge cla im under Title VII, Mack must prove

that she was a victim of intentional discrimination. " ).

4 6 . " Discriminatory intent may be established through

direct or indirect circumstantial evidence. " Johnson v.

Hamrick , 155 F. Supp. 2d 1355, 1377 ( N.D. Ga. 2001).

4 7 . " [D]irect evidence is composed of ' only the most

blatant remarks, whose intent could be nothing other than to

discriminate ' on the basis of some impermissible factor. . . .

If an alleged statement at best merely suggests a discriminatory

motive, the n it is by definition only circumstantial evidence. "

Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir. 1999).

Likewise, a statement " that is subject to more than one

interpretation . . . does not constitute direct evidence. "

Merritt v. Dillard Paper Co. , 120 F.3d 1181, 1189 (11th Cir.

1997).

4 8 . " [D]irect evidence of intent is often unavailable. "

Shealy v. City of Albany, Ga. , 89 F.3d 804, 806 (11th Cir.

1996). For this reason, those who claim to be victims of

discrimination " are permitted to esta blish their cases through

inferential and circumstantial proof. " Kline v. Tennessee

Valley Authority , 128 F.3d 337, 348 (6th Cir. 1997).

4 9 . No direct evidence of discrimination exists in this

case. A finding, if any, must be based on circumstantial

ev idence.

50 . The burden of proof in discrimination cases involving

circumstantial evidence is set forth in McDonnell Douglas Corp.

v. Green , 411 U.S. 792, 802 - 03 (1973). Federal discrimination

law may be used for guidance in evaluating the merits of claim s

arising under Chapter 760 , Florida Statutes . Tourville v.

Securex, Inc. , 769 So. 2d 491 (Fla. 4th DCA 2000); Greene v.

Seminole Electric Co - op., Inc. , 701 So. 2d 646 (Fla. 5th DCA

1997); Brand v. Florida Power Corp. , 633 So. 2d 504 (Fla. 1st

DCA 1994).

51 . Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the " shifting

burden framework established by the [United States] Supreme

Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.

Ct. 1817, 36 L.E d.2d 668 (1973) and Texas Dep ' t of Community

Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d

207 (1981) " is applied. " Under this framework, the

[complainant] has the initial burden of establishing a prima

facie case of discrimination. If [t he complainant] meets that

burden, then an inference arises that the challenged action was

motivated by a discriminatory intent. The burden then shifts to

the employer to ' articulate ' a legitimate, non - discriminatory

reason for its action. If the employe r successfully articulates

such a reason, then the burden shifts back to the [complainant]

to show that the proffered reason is really pretext for unlawful

discrimination. " Schoenfeld v. Babbitt , 168 F.3d at 1267

(citations omitted).

5 2 . In the instant c ase, Petitioner produced no direct

evidence to support his claim that he had been the victim of

intentional discrimination on the part of the Sheriff ' s Office .

Petitioner, therefore, relied on circumstantial evidence to

prove his claim.

5 3 . To make out a prima facie case of age discrimination

[based on circumstantial evidence] in a case of failure to

promote , a complainant must show : 1) that he belongs to the

protected class ; 2) that he was qualified and applied for the

promotion; 3) that despite his qua lifications he was rejected ;

and 4) that the employer either ultimately filled the position

with someone sufficiently younger to permit an inference of age

discrimination or sought to promote less qualified employees who

are not members of the protected cl ass. Once the complainant

has established a prima facie case of discrimination, the burden

then shifts to the employer to articulate some legitimate, non -

discriminatory reason for the employee ' s rejection. If the

employer meets this burden of persuasion, the complainant must

then establish that the employer ' s proffered reasons for the

employee ' s rejection were pretextual. Taylor v. Runyon , 175

F.3d 861, 866 (11th Cir. 1999).

5 4 . Petitioner has failed to establish a prima facie case

of age discrimination . While Petitioner established that he is

greater than 40 years of age , that he was qualified for and

applied for the promotion , and that he was rejected despite his

qualifications; he failed to demonstrate that other, less

qualified members of his protec ted class were promoted.

Petitioner did not establish the age of the other deputies who

were promoted. Therefore, the record lacks evidence that other

equally or less qualified employees under the age of 40 were

promoted rather than Petitioner.

5 5 . Even if Petitioner had established a prima facie case

of discrimination, Petitioner did not prove age discrimination.

The evidence supports Respondent ' s position that more qualified

candidates, based upon their special duties and voluntary

assignments, were p romoted over him. Clearly, Respondent

presented legitimate, non - discriminatory reasons for its

promotion of the other deputies over Petitioner. Petitioner

failed to show that the stated reasons were pretextual and that

the real reason for the denial of h is promotion was his age.

5 6 . In his letter and email resigning from Respondent,

Petitioner states that his reasons for leaving is that he has

lost faith in the Sheriff ' s Office and that he felt himself to

be the victim of a " good - ol - boy " network. In spi te of this,

Petitioner resigned of his own volition, even after being told

by Sheriff Hall that he would be eligible to apply for promotion

again when positions became available. Sheriff Hall gave

Petitioner no reason to believe that he would not be promo ted in

the future. The evidence showed that another, lower - ranked

deputy was promoted only a few months after the round of

promotions that gave rise to this proceeding. Had Petitioner

taken the advice of Sheriff Hall , he might have achieved his

promotion by the time this matter went to hearing. Petitioner's

resignation from the Santa Rosa County Sheriff ' s Office ensured

that his promotion would not occur.

5 7 . Based upon the evidence and testimony offered at

hearing, the Santa Rosa County Sheriff ' s Offic e cannot be found

to have committed the " unlawful employment practice " alleged in

the employment discrimination charge , which is the subject of

this proceeding . Therefore, the employment discrimination

charge should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that FCHR issue a final order finding

Respondent not guilty of the " unlawful employment practice "

alleged by Petitioner and dismissing Petitioner's employment

discrimination charge.

DONE AND ENTER ED this 5 th day of Decem ber , 2007 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 5 th day of Decem ber , 2007 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florid a Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Steven L. Boles

262 County Road 617

Hanceville, Alabama 35077

Robert W. Evans, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street , Suite 100

Tallahasse e, Florida 32308

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 d ays 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.