07-004769 Albert J. Beddy vs. Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Tuesday, April 8, 2008.

Summary: The evidence did not show that Petitioner was discriminated against (race and age) when Respondent hired a same race, but younger applicant for a position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT J. BEDDY, )

)

Petitioner, )

)

vs. ) Case No. 07-4769

)

FLORIDA FISH AND WILDLIFE )

CONSERVATION COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

held in this matter before Diane Cleavinger, Administrative Law

Judge, Division of Administrative Hearings on February 5, 2008,

in Tallahassee, Florida.

APPEARANCES

For Petitioner: Albert H. Beddy, pro se

7281 Sycamore Road

Quincy, Florida 32351

For Respondent: Stan M. Warden, Esquire

Emily J. Norton, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

STATEMENT OF THE ISSUE

Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.

PRELIMINARY STATEMENT

On June 2, 2007, Petitioner, Albert J. Beddy, filed a

Charge of Employment Discrimination with the Florida Commission

on Human Relations (FCHR) claiming age and race discrimination

by Respondent, Florida Fish and Wildlife Conservation

Commission. FCHR investigated the charge and, on September 13,

2007, issued a determination of no cause. On October 13, 2007,

Petitioner filed a Petition for Relief with FCHR alleging age,

race and sex discrimination against Respondent. The Petition

was forwarded to the Division of Administrative Hearings.

On January 30, 2008, Respondent filed a Motion to Strike

the allegations related to gender discrimination because such

alleged discrimination was not asserted in Petitioner’s original

Charge of Employment Discrimination and not investigated by

FCHR. The motion was granted and the allegations regarding

discrimination based on gender were dismissed. Petitioner was

permitted to proceed on his allegations of age and race

discrimination.

At the final hearing, Petitioner testified in his own

behalf and called one witness to testify. Respondent presented

the testimony of two witnesses and offered two exhibits into

evidence. Additionally, the parties also stipulated to the

admission of seven joint exhibits into evidence.

After the hearing, Petitioner submitted a Proposed

Recommended Order on February 29, 2008. Respondent submitted a

Proposed Recommended Order on March 3, 2008.

FINDINGS OF FACT

1. In July of 2006, Respondent advertised an opening for

an Accountant II, position #70557, in its revenue and contracts

division. The primary responsibility in the position was

accounting for and paying or reimbursing expenses in state

programs that were funded through federal money by drawing down

the accounts in which the federal funds were maintained.

Therefore, among other things, the position required accounting

experience and a working knowledge of FLAIR. FLAIR is the

computerized accounting and records system used by all state

agencies in the State of Florida. The vacant position required

significant knowledge and experience in both the accounting

codes utilized in FLAIR and the computer screens associated with

those codes.

2. Additionally, there was a critical need to immediately

fill the position with an experienced person because of the

involvement with federal funds and due to the fact that another

employee, Deborah Schimmel, was performing the work required in

her position, as well as, the work required in the vacant

position.

3. In 2006, Petitioner, who is Caucasian and 67 years old,

applied for the Accountant II position with Respondent. As part

of the application process, Petitioner answered a series of

q ualifying questions relevant to the vacant position. The

questions were used by Respondent to help with preliminary

screening of the applicants. Some of the questions involved the

applicants’ experience with FLAIR, grants and revenue.

4. Petitioner answered the qualifying questions and

indicated he had one year of experience with FLAIR, a college

degree in accounting and experience with grants.

5. There were four other applicants for the position.

Petitioner did not know the race of any of the other applicants

for the position and did not offer any evidence regarding the

race of these individuals.

6. Salwa Soliman, the Commission’s Revenue and Contracts

Manager, was advised that the Accountant II position was vacant

and had been advertised. She was also aware that the position

needed to be filled as soon as possible with a person who could

perform the accounting and billing duties of that position with

little or no training. Ms. Soliman reviewed the applications

for the vacant position.

7. Based on a review of his application and qualifying

questions, Petitioner was granted an interview because he was a

veteran, held a bachelor's degree in accounting, had revenue

experience and had experience with FLAIR.

8. On October 13, 2006, Petitioner was interviewed for the

position by Ms. Soliman and Ms. Schimmel.

9. During Petitioner's interview, it was clear that

Petitioner's experience with revenue related to tax returns and

not grants. Likewise, Petitioner's experience with grants was

only in writing or applying for grants. He had not billed or

disbursed federal money from such grants. More importantly,

Petitioner's experience with FLAIR was “view only” experience.

only able to view or look at certain screens but not input data

or change the screens in FLAIR. Thus, Petitioner did not have

experience with data input to FLAIR and/or the pull-down menus

associated with such input.

10. In short, Petitioner’s experience and skills did not

relate to the work required in the position at issue. Neither

tax experience nor grant writing experience was the type of

revenue experience required for the vacant position.

Additionally, Petitioner did not have sufficient experience or

working knowledge of FLAIR to enable him to fill the position

with little or no training.

11. Petitioner was not hired for the position. In all

likelihood, Petitioner could have been trained for the position.

However, due to the nature of the position, Respondent reasonably

wanted to hire a person who could immediately fill it. Indeed,

none of the applicants for the position were hired because no

person had the necessary working knowledge of FLAIR and grant

billing to fill the Accountant II position immediately with

little or no training required. There was no evidence that

Respondent’s reasons for not hiring Petitioner were unreasonable

or a pretext for discriminating against Petitioner.

12. When a batch of applicants does not meet Respondent’s

needs for a vacant position, Respondent’s policy was to review

any applications for other employment opportunities with

Respondent submitted within six months of the closing date of the

job announcement for the current vacancy.

13. Because of the critical need to fill the Accounting II

position, Ms. Soliman asked that other previously submitted

applications be forwarded to her by Respondent’s personnel

department.

14. In order to transfer an application from one job

posting to another job posting, People’s First, the State’s

contractor for some personnel matters, must transfer the

previously filed application in its database to the file for the

current vacancy. Other than requesting the transfer of the

application, Respondent is not involved in the actions necessary

to transfer an application to another file for a vacant position.

15. In this case, Respondent’s personnel department

requested People’s First to transfer applications from an

earlier-filled Accountant II position with Respondent. One of

the transferred applications was from Debra Shriver who was 23

years old and Caucasian. For unknown reasons, in the computer

process of transferring the application, the date on Ms.

Shriver’s application was changed. The evidence was clear that

Respondent did not ask for or cause the date on Ms. Shriver’s

application to change. In fact, the change in the application’s

date was immaterial to Respondent’s criteria or requirements in

filling the position at issue here and does not demonstrate any

fraud, falsification or misrepresentation on the part of

Respondent in filling the position.

16. Based on her application, Ms. Soliman interviewed

Ms. Shriver for the vacant position. The evidence was clear that

Ms. Shriver had the experience and knowledge being sought and

required for the position at issue. She was currently working in

the grant billing division in another state agency and had

significant experience and working knowledge of FLAIR as it

relates to grants and billing. Ms. Soliman had worked with the

successful candidate before but they were not personal friends.

Ms. Soliman knew that Ms. Shriver was a competent employee.

Based on these facts, Ms. Shriver was hired for the vacant

position and did not require significant training once she began

working in that position.

17. There was no evidence that Ms. Shriver’s selection was

based on her race or her age. She was selected based on her

qualifications to immediately perform in the position for which

she was hired. Likewise, there was no evidence that Petitioner

was not hired based on his race, which was the same as

Ms. Shriver’s, or his age. Petitioner was not hired because he

did not have the experience necessary to enable him to

immediately begin performing the duties of the position for which

he applied. Finally, there was no evidence that Petitioner’s

requirements for selecting a person to fill the vacant position

or for selecting Ms. Shriver were unreasonable or a pretext for

discrimination against Petitioner. Therefore, the Petition for

Relief should be dismissed.

CONCLUSION OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

19. It is an unlawful employment practice for an employer

to discharge or otherwise to discriminate against any individual

with respect to compensation, terms, conditions, or privileges of

employment, because of such individual’s age, race or gender. §

760.10(1)(a), Fla. Stat.

20. In cases of discrimination, Petitioner has the burden

of proving by a preponderance of the evidence that Respondent

committed an unlawful employment practice. Fla. Dep’t of

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

1991).

21. The provisions of Chapter 760, Florida Statutes, are

analogous to those of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seq . Cases interpreting Title VII are,

therefore, applicable to Chapter 760, Florida Statutes. See

School Bd. v. Hargis , 400 So. 2d 103, 108 and n.2 (Fla. 1st DCA

1981); Harper v. Blockbuster Entertainment Corp. , 139 F.3d 1285,

1387 (11th Cir. 1998) (“No Florida court has interpreted the

Florida Statue to impose substantive liability where Title VII

does not.”) cert. denied , 525 U.S. 1000, 119 S. Ct. 509, 142 L.

Ed.2d 422 (1998); Bryant 586 So. 2d at 1209; see also Scelta v.

Delicatessen Support Servs. , 146 F. Supp. 2d 1255, 1261 and n.5

(M.D. Fla. 2001). McDonnell Douglas-Burdine-Hicks (burden-

shifting framework for indirect proof cases). See Reeves v.

Sanderson Plumbing Prod., Inc. , 530 U.S. 143 (2000); Chapman v.

Al Transp., 229 F.3d 1012, 1024-25 (11th Cir. 2000) (en banc) .

22. In Texas Department of Community Affairs v. Burdine ,

450 U.S. 248 (1981), and McDonnell Douglas Corp. v. Green , 411

U.S. 792 (1973), the United States Supreme Court set for the

requirements for proving a prima facie case of discrimination,

which can vary depending on the type of discrimination case.

McDonnell Douglas Corp. v. Green , 411 U.S. at 802 n. 13; Schwartz

v. State of Florida , 494 F. Supp. 574, 583 (N.D. Fla. 1980).

McDonnell Douglas Corp. v. Green provides:

That a Title VII plaintiff carries the

initial burden of showing actions taken by

the employer from which one can infer, if

such actions remain unexplained, that it is

more likely than not that such actions were

“based on a discriminatory criterion illegal

under the (Civil Rights) Act (of 1964.”

Teamsters v. United States , 431 U.S. 324, 358

(1977).

Furnco Construction Corp. v. Waters , 438 U.S. 567, 576

(1977).

23. If the plaintiff proves a prima facie case of

discrimination, the burden shifts to the employer “to articulate

some legitimate nondiscriminatory reason” for the adverse

employment action. McDonnell Douglas Corp. v. Green , 411 U.S. at

802.

24. In St. Mary’s Honor Center v. Hicks , 509 U.S. 502, 113

S. Ct. 2742, 2747 (1993), the Court held that once the employer

succeeds in carrying his burden of producing a nondiscriminatory

reason for the challenged action, the employee must show that the

employer’s reason is pretextual. The final and ultimate burden

of persuading the trier of fact, by a preponderance of the

evidence, remains at all times with the employee. St. Mary’s

Honor Center v. Hicks , 113 S. Ct. at 2747.

25. The employee’s ultimate burden of persuasion may be

satisfied by direct evidence showing that a discriminatory

reason, more likely than not, motivated the decision involved, or

by indirect evidence showing that the proffered reasons of the

employer are not worthy of belief. Department of Corrections v.

Chandler , 528 So. 2d 1183, 1186 (Fla. 1st DCA 1991). In Reeves

v. Sanderson Plumbing Products, Inc. , 530 U.S. 133 (2000), the

U.S. Supreme Court resolved a conflict among the circuits about

the standard for establishing pretext fueled by the Court’s

earlier decision in St. Mary’s Honor Center v. Hicks , 509 U.S.

133 (1993), and made it clear that “pre-text plus” was not the

standard to be used. Reeves established the pretextual standard

as a permissive, case-by-case approach in “a plaintiff’s prima

facie case, combined with sufficient evidence to find that the

employer’s asserted justification is false and . . . permit the

trier of fact to conclude that the employer unlawfully

discriminated.” Id. at 148. Justice O’Connor’s opinion for a

unanimous court carefully explained why evidence of pretext with

the prima facie case may be sufficient to find discrimination:

In appropriate circumstances, the trier of

fact can reasonably infer from the falsity of

the explanation that the employer is

dissembling to cover up a discriminatory

purpose. . . Moreover, once the employer’s

justification has been eliminated,

discrimination may well be the most likely

explanation, especially since the employer is

in the best position to put forth the actual

reasons for the decision . . .

Reeves , 530 U.S. at 147. See also , Dep’t of Corrections v.

Chandler , 582 So. 2d 1186 (Fla. Dist. Ct. App. 1st Dist. 1991)

and Chapman , 229 F.3d at 1024.

26. On the other hand, “[a] plaintiff is not allowed to

recast an employer’s proffered nondiscriminatory reason or

substitute [his] business judgment for that of the employer.”

Chapman , 229 F.3d at 1030. Rather, “an employee must meet that

reason head on and rebut it, and the employee cannot succeed by

simply quarreling with the wisdom of that reason.” Id.

27. To establish a prima facie case of discrimination based

on disparate treatment, a complainant must show the following:

(a) Complainant belongs to a protected class; (b) Complainant

was not hired; (c) Complainant was qualified for the position;

and (d) the employer treated similarly situated applicants

outside the protected class more favorably. Holifield v. Reno ,

115 F.3d 1555, 1562 (11th Cir. 1997); Jones v. Gerwens , 874 F.2d

1534, 1539-42 (11th Cir. 1989).

28. In this case, Petitioner demonstrated that he was a

member of a protected class both as to age and race. He also

demonstrated he was not hired for the vacant position. However,

he did not demonstrate that he was a similarly situated

applicant.

29. It is established law under Title VII that “to make a

comparison of the plaintiff’s treatment to that of non-minority

employees, the plaintiff must show that he and the employees are

similarly situated in all relevant respects.” Holifield , 115

F.3d at 1562.

30. In this case, Petitioner has not identified any non-

minority or younger applicant who is similarly situated in

relationship to the applicant’s knowledge of or experience with

FLAIR, grants and/or grant billing. Petitioner’s and

Ms. Shriver’s qualifications were significantly different in each

person’s knowledge and experience with FLAIR and in the area of

grant billing. They were both of the same race. Given these

differences and Respondent’s need to fill the vacant position

with a person who could immediately perform the duties of the

position, Petitioner has failed to prove a prima facie case of

either race or age discrimination.

31. Even assuming, arguendo , Petitioner established a prima

facie case of discrimination, Respondent has articulated a

legitimate, non-pretextual reason for not hiring Petitioner.

Respondent reasonably believed it needed someone to fill the

vacancy who could immediately fulfill the duties of the position.

Additionally, Ms. Shriver was substantially more experienced with

FLAIR and grant billing. Both reasons for hiring Ms. Shriver

were legitimate and not pretextual rationales for Respondent’s

employment decision. Forrester v. Rawland-Bog Corp. , 453 F.3d

416, 418 (7th Cir. 2006) (“the question is never whether the

employer was mistaken, cruel, unethical, out of his head, or

downright irrational in taking the action for the stated reason,

but simply whether the stated reason was his reason: not a good

reason, but the true reason”); Jones , 874 F.2d 1534, 1540 (11th

Cir. 1989) (“[t]he law is clear that, even, if a Title VII

claimant did not commit the violation with which he is charged,

an employer successfully rebuts any prima facie case of disparate

treatment by showing that it honestly believed the employee

committed the violation); Damon v. Fleming Supermarkets, Inc. ,

196 F.3d 1354, 1363 n.3 (11th Cir. 1999) (“[a]n employer who

fires an employee under the mistaken but honest impression that

the employee violated a work rule is not liable for

discriminatory conduct”) (citation and quotation omitted), cert.

denied , 529 U.S. 1109, 120 S. Ct. 1962, 146 L. Ed. 2d 793 (2000);

Herron v. Daimler Chrysler Corp., 388 F.3d 293, 299 (7th Cir.

2004) (the pretext inquiry focuses on whether employer’s

explanation was a “a lie rather than an oddity or an error”).

Petitioner provided no evidence that Respondent's articulated

reasons for the selection of the successful candidate were

unreasonable or were a pretext for discrimination. The

application process used by Respondent followed Agency policy in

reviewing the applications of unsuccessful applicants for a

previously advertised accounting position. Therefore, absent

such evidence, the Petition for Relief should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is therefore

RECOMMENDED that a final Order be entered by the Florida

Commission on Human Relations dismissing the Petition for Relief

in its entirety.

DONE AND ENTERED this 8th day of April, 2008, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of April, 2008.

COPIES FURNISHED :

Albert H. Beddy

7281 Sycamore Road

Quincy, Florida 32351

Stan M. Warden, Esquire

Emily J. Norton, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

Ken D. Haddad, Executive Director

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399-1600

James V. Antista, General Counsel

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399-1600

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.