08-003114 Eulinda Russ vs. City Of Cottondale, Florida Status: Closed Recommended Order on Friday, December 5, 2008.

Summary: Petitioner failed to establish a prima facie case. She did not show she was qualified for the job, and that better-treated interviewees were similarly-situated as to qualifications. There is no jurisdiction, as city did not have 15 employees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EULINDA RUSS, )

)

Petitioner, )

)

vs. ) Case No. 08-3114

)

CITY OF COTTONDALE, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding

and hearing before P. Michael Ruff, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings in Marianna, Florida, on September 5, 2008. The

appearances were as follows:

APPEARANCES

For Petitioner: Eulinda M. Russ, pro se

Post Office Box 767

Cottondale, Florida 32431

For Respondent: Timothy W. Warner, Esquire

Warner & Wintrode, P.A.

Post Office Box 1820

Panama City, Florida 32402

STATEMENT OF THE ISSUES :

The issues to be resolved in this proceeding concern whether the Division of Administrative Hearings and the Florida Commission on Human Relations (Commission) have subject matter

jurisdiction of this dispute and, aside from the jurisdictional

questions, whether the City of Cottondale has engaged in a

discriminatory employment action against the Petitioner based

upon her race (African-American).

PRELIMINARY STATEMENT

This case arose based upon a charge of discrimination filed

with the Commission by the Petitioner, Eulinda Russ, on or about

December 13, 2007. Ms. Russ alleged that she was a victim of

discrimination in a hiring practice by the City of Cottondale

based upon her race, African-American. The Commission issued a

Determination of No Cause on May 21, 2008, based upon its

investigative memorandum which contained the conclusion that the

Petitioner had failed to establish a prima facie case of racial

discrimination by the City of Cottondale (City). The Petitioner

filed a Petition for Relief on June 24, 2008.

The cause came on for hearing on September 5, 2008, before

the undersigned. At the hearing the City argued its Motion to

Dismiss based upon lack of jurisdiction, alleging that the City

did not have the requisite 15 employees so as to be deemed an

"employer" for purposes of Sections 760.02(7) and 760.10,

Florida Statutes (2007). The Motion was taken under advisement

and evidence was presented on the issues on the merits.

The Petitioner called as witnesses Elmore Bryant, Annie

Blaine, and presented her own testimony as well. The Petitioner

introduced as exhibits her employment application of February 8,

2007, as well as a performance appraisal review of Ms. Russ.

The City presented the testimony of Judy Powell, James Elmore,

and Denise White. In addition to testimony, it introduced 14

exhibits which were admitted into evidence. Upon rebuttal the

Petitioner introduced the testimony of Willie C. Cook.

Upon conclusion of the hearing, a transcript of the

proceedings was ordered, and proposed recommended orders were

agreed to be filed within 10 days after the filing of the

transcript. Thus Proposed Recommended Orders were timely filed

and have been considered in the rendition of this Recommended

Order. Unless otherwise indicated all statutory references are

to the 2007 edition of the relevant statutes.

FINDINGS OF FACT

1. The Petitioner was an unsuccessful applicant for a job

vacancy for a position of secretary with the City. The

Respondent is the City of Cottondale, Florida, an incorporated

municipality under relevant Florida Law.

2. As established by the testimony of Judy Powell, the

City Clerk for the City, the City, at all times pertinent

hereto, had fewer than 15 employees. City counsel members other

than James Elmore, were paid less than $600.00 per year and did

not receive forms 1099 for their compensation from the City.

They do not meet the relevant criteria to be considered

employees. The City's Exhibit One, in evidence, shows that the

City had fewer than 15 employees. The Petitioner offered no

evidence to contradict the evidence from the City, the

Respondent, that it had fewer than 15 employees at all relevant

times.

3. On January 30, 2007, the City placed an advertisement

in the Graceville News, a newspaper, advertising a job vacancy

for the position of secretary. The job description for the

position included duties involving collecting utility bills,

water deposits, issuing receipts for monies, helping to maintain

and record cash journals of all business transactions, preparing

billing for utilities, posting ledgers, assisting with daily

collections, setting-up accounts, performing customer transfers,

maintaining records of water deposits paid and refunded, and

preparing of payroll and all related tax reports. Pursuant to

that job description, general qualifications which applicants

must have included bookkeeping skills and experience.

4. In selecting applicants who would actually be

interviewed, Ms. Powell and Willie Cook, who were doing the

interviews, looked for individuals who had specific job skills

related to the above-referenced duties contained in the job

description for that position. Nineteen individuals submitted

applications for the position, including the Petitioner.

5. Four individuals were selected to be interviewed out of

the 19 individuals who had applied for the position. Those were

Melissa Davis, Linda Krauser, Gail Woodham, and Denise White.

6. There was no requirement in City policy that all

applicants for a job position be interviewed. There is no

evidence to show that race was a factor in determining which

applicants were selected to be interviewed for the secretarial

position and which were not selected. Rather, the interview

selection process involved selecting persons whose application

documents appeared to show evidence of some specific job skills

which related to accounting, accounts receivable, accounts

payable, and the other duties detailed in the job description

for the position in question.

7. A white female, Melissa Davis, was selected to be

interviewed because her application and cover letter indicated

that she was familiar with accounts receivable, accounts

payable, payroll, job costing, personnel, handling line

telephones, customer service, preparing quarterly reports, and

billing purchase orders and had experience in working with

401(k) issues and health and dental insurance. In addition, she

had experience as a bank teller handling cash transactions.

8. Another white female, Linda Krauser, was selected to be

interviewed as well because her application indicated that she

had previously supervised a staff of 40 people and had

experience in customer service, maintaining staff records, and

experience in accounting and billing.

9. Another white female, Gail Woodham, was selected for

interview because her job application and attached documents

showed 20 years of experience in payroll, excel, powerpoint,

computer skills, veritable spread sheets, and spread sheet

tracking.

10. An Hispanic female, Denise White, was also selected to

be interviewed because her job application indicated that she

had experience as a head bank teller with 17 years in a fast-

paced environment and as a supervisor of tellers. She had

worked in a doctor's office and had experience with record

keeping. She had secretarial and billing experience working

with patients for an optometry group, prepared correspondence

for doctors and assisted with patient check-out. In her

employment with Indian River National Bank, she had gained

experience in customer service in handling accounts, and was a

supervisor. Prior to that job, while working for another bank,

she was a lead teller, supervisor, and handled cash flow. She

had also received a prior certification regarding medical

billing.

11. The other 15 individuals who applied for the position,

including Ms. Russ, were not interviewed. This decision was

based upon Ms. Powell and Mr. Cook's review of the applications,

and related to the relevant skills, experience, or education

shown, or not shown, on those applications. There was no

evidence that there was any racially discriminatory animus

involved in the selection of individuals for interviews or the

rejection of the other individuals who were not interviewed.

12. The job application and resume submitted by the

Petitioner indicated that her expertise and experience was

primarily in caring for the elderly. There was no indication

that she had any experience in bookkeeping, handling invoices,

or billing. The decision not to interview the Petitioner was

not based upon racial motivation, but rather, as with the case

with the other applicants who were not interviewed, was based

upon a review of application documents. A decision was made to

select the four whose past experience, education, and job skills

noted in those documents showed them most likely to be

candidates with the appropriate skills and experience for the

job in question.

13. During the interviews of the four selected applicants,

questions were asked them regarding accounting and bookkeeping

issues. Ms. Powell, the City Clerk, finished the interview

process and made the selection of the individual to be offered

the position of secretary. Ultimately, Ms. White, a Hispanic

female, was selected for the secretarial position and accepted

the salary range offered, in the amount of $8.00 to $8.25 per

hour. The applicants who were not interviewed did not have

skills appropriate to the job and did not have skills

substantially similar to those of the four individuals who were

selected for interviews. They were particularly dissimilar in

skills, experience, and education to the person ultimately

hired, Ms. White.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

Subject Matter Jurisdiction

15. Section 760.02(7), Florida Statutes, provides in

pertinent part as follows:

'Employer' means any person employing 15 or

more employees for each working day in each

of 20 or more calendar weeks in the current

or preceding calendar year, and any agent of

such a person.

16. In the case of Housing Authority of the City of

Sanford v. Billingslea , 464 So. 2d 1221 at 1224 (Fla. 5th DCA

1985), the Fifth District Court of Appeal stated that:

. . . the 1977 act specifically includes as

covered employers any 'governmental entity

or agency' which employs '15 or more

employees for each working day in each of

the 20 or more calendar weeks in the current

or preceding calendar year' . . . the 1977

act grants to the Commission on Human

Relations at least concurrent jurisdiction

with the Circuit Court in regard to county

and municipal employers.

See also Mousa v. Lauda Air Luftfahrt, A.G. , 258 F. Supp. 2d

1329 (U.S.D.C. So. Dist. Fla. 2003).

17. The preponderant evidence shows that the City of

Cottondale did not employ 15 or more employees at all times

material to this Petition and case. Thus, the Respondent does

not meet the threshold for being deemed an employer under the

provisions of Chapter 760, Florida Statutes. The City's Exhibit

One, its forms 941, establish that it had fewer than 15

employees at times pertinent to this case. This was confirmed

by the testimony of Ms. Judy Powell, the City Clerk, who also

established that the City had fewer than 15 employees. No

evidence was offered to contradict that showing regarding the

number of city employees.

18. Accordingly, the Petitioner has not demonstrated that

there is subject matter jurisdiction over the claim involved in

this case, involving the charge of discrimination based upon

race, because the City of Cottondale has fewer than 15

employees.

Discrimination Claim

19. Assuming arguendo that there was subject matter

jurisdiction in this case, the race discrimination claim will be

addressed. Based upon the provisions of Chapter 760, Florida

Statutes, specifically Section 760.10, Florida Statutes, and

Title VII, 42 USC Section 2000E-2(a), it is unlawful to

discriminate against an individual with respect to that person's

compensation, terms, conditions or privileges of employment or

to otherwise adversely affect that person's status as an

employee because of that person's race. The Petitioner must

prove an intentional discriminatory motive by presenting either

direct or circumstantial evidence of discriminatory animus. St.

Mary's Honor Center v. Hicks , 509 U.S. 502, 506-507, 113 S. Ct.

2742, 2746-47, 125 L. Ed. 2d 407 (1993).

20. "Direct evidence . . . is evidence that, 'if believed,

proves [the] existence of [a] fact in issue without inference or

presumption.'" Schoenfeld v. Babbit , 168 F.3d 1257, 1266 (11th

Cir. 1999); see also Merritt v. Dillard Paper Company , 120 F.3d

1181, 1189 (11th Cir. 1997) (stating that evidence that only

suggests discrimination or is subject to more than one

interpretation is not direct evidence). Direct evidence

consists of "'only the most blatant remarks, whose intent could

be nothing other than to discriminate.'" See Schoenfeld , supra .

21. In the absence of direct evidence a petitioner may

present circumstantial evidence and invoke the burden-shifting

framework established in McDonnell-Douglas Corporation v. Green ,

411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under

the McDonnell-Douglas framework, the plaintiff or petitioner

bears the initial burden of establishing a prima facie case of

intentional discrimination, which requires: (1) that she be a

member of a protected class; (2) that she be qualified for the

position which she held or sought; (3) that she was discharged

or subject to an adverse employment action (failure to hire);

and (4) that the employer treated similarly-situated employees

and persons outside the protected class more favorably. See St.

Mary's , supra at 506. See also Burke-Fowler v. Orange County ,

447 F.3d 1319, 1323 (11th Cir. 2006).

22. If a prima facie case is established, a presumption of

discrimination is raised and the burden of production of

evidence shifts to the defendant (Respondent) to articulate a

legitimate, non-discriminatory reason for its actions. St.

Mary's , supra at 506-507. The defense must show, through the

introduction of evidence, reasons for its action, which, if

believed by the trier of fact, would support a finding that

unlawful discrimination was not the reason for the employment

action at issue. The burden on the defense is to proffer a non-

discriminatory reason for its action and is a burden of

production. It is satisfied by producing such a reason

regardless of the persuasive effect of that proffered reason.

23. If a respondent or defendant shows evidence of a

legitimate, non-discriminatory reason, the presumption

disappears and the petitioner or plaintiff must then show that

the reasons were not the true reasons for the employment

decision, but rather were a pretext for what really amounted to

discrimination. See Chapman v. AI Transport , 229 F.3d 1012,

1024 (11th Cir. 2000). The ultimate burden of persuasion,

however, remains with the Petitioner to show that intentional

discrimination occurred. The petitioner must establish a prima

facie case and rebut any legitimate, non-discriminatory

explanation or reasons offered by the employer. Texas

Department of Community Affairs v. Burdine , 450 U.S. 248, 253

(1981). St. Mary's , supra at 507.

24. Employees are similarly situated, in the context of an

allegedly discriminatory hiring decision, when they are of the

same or a different class and are possessed of the same or very

similar job qualifications. In order to show a prima facie case

the Petitioner must show that the employees who were interviewed

were similarly situated to her, but were of a different class

from her protected class, and were treated more favorably in the

hiring process. Three of the interviewed employees were white,

one was Hispanic. So they were not in the protected class of

the Petitioner, who is African-American. The evidence, however,

shows clearly and persuasively that all four were not similarly

situated to the Petitioner nor to the other 14 job applicants

who were not interviewed. This is because they had different,

more relevant and appropriate qualifications, in terms of the

required education and work experience for the job at issue.

Thus they were not similarly-situated employees, even if they

were treated more favorably than the Petitioner. Therefore,

that element of a prima facie case has not been established.

See Burke-Fowler , 447 F.3d at 1323. Moreover, the Petitioner

has failed to established that she was qualified for the

secretarial position for which she applied.

25. The position of secretary for the City had a job

description involving collecting utility bills, water deposits,

issuing receipt for monies, helping to maintain cash journals of

all business transactions, preparing billing for utilities,

posting ledgers, assisting with daily collections, setting up

accounts, performing customer transfers, maintaining records of

water deposits paid and refunded, and preparing payroll and all

related tax reports. Under "general qualifications" the

qualifications needed for applicants included bookkeeping skills

and experience.

26. Ms. Powell and Mr. Cook, in selecting applicants to be

interviewed, were looking for individuals who had these specific

job skills, or many of them, including accounting, accounts

receivables, accounts payable, and customer service. Four

individuals were ultimately selected as having sufficient

qualifications to be interviewed. The individuals selected are

those named in the above Findings of Fact. There was no

requirement in City policy that all applicants be interviewed.

There is no persuasive evidence that race was ever a factor in

determining which applicants were selected for interview. Three

of the selectees for interviews were white females. All had

significant qualifications in terms of those criteria contained

in the job description.

27. Denise White is a Hispanic female. She was selected

to be interviewed because her job application reflected the

extensive, relevant experience depicted in the above Findings of

Fact. She had served as lead teller and supervisor and handled

cash flow for one of the banks for which she had previously been

employed. In fact, her qualifications were the best of the 19

applicants, in terms of varied experience and training and

including supervisory experience. She was the best of the four

interviewed applicants and was ultimately hired for the

position.

28. The Petitioner's application and resume on the other

hand, reflected her expertise was essentially in caring for

elderly persons. There was no indication that she had any

experience in bookkeeping, handling invoices, or billing or any

of the other criteria or duties delineated in the job

description and which were possessed to varying degrees by the

four persons who were interviewed for the job.

29. During the interviews, the four selected applicants

were asked questions regarding their accounting and bookkeeping

skills, training, and experience. Ms. Powell, the City Clerk,

finished the interview process and made the selection of the

individual to be offered the position of secretary. Ms. White

ultimately was selected. The Petitioner was not similarly-

situated with the four individuals who were selected to be

interviewed for the position nor as to the one person ultimately

hired for the position. Although they were not of the same

protected class as the Petitioner, they were not similarly-

situated with her because all of them had significantly more

relevant qualifications for the position in question than did

the Petitioner. She had no similar accounting, billing, or

bookkeeping background as those who were selected to be

interviewed. Therefore, in terms of her lack of qualifications,

and in terms of failing to show that those who were treated more

favorably, were similarly-situated, she failed to establish a

prima facie case of racial discrimination in hiring.

30. Even had she established a prima facie case, the City

established a legitimate, non-discriminatory basis for the

decision not to interview Ms. Russ and to hire Ms. White. The

legitimate non-discriminatory basis is that the four individuals

interviewed and the one actually hired, Ms. White, had

substantially more relevant accounting, bookkeeping, cash

handling, customer service, and the other elements of necessary

experience, referenced above, than did the Petitioner.

31. The Petitioner has not established any basis to

determine that the reasons and actions of the City in making the

hire, and in interviewing the four persons, were pretextual for

what really amounted to racial discrimination. The Petitioner

has simply failed to rebut the legitimate, non-discriminatory

business purpose, based upon relative qualifications of the

applicants, set forth by the City in the evidence, upon which

its decision regarding interviewing and hiring was based.

Therefore, since she has not established a pretextual element to

the City's reasons for the interviews and the hiring, and

because, for the reasons referenced above, she has not

established a prima facie case, the Petitioner has failed to

adduce preponderant, persuasive evidence to establish her claim

of racial discrimination as to the hiring decision at issue.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses and pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED that the Motion to Dismiss for Lack of Subject

Matter Jurisdiction is granted. It is further recommended,

aside from the finding of lack of subject matter jurisdiction,

that, alternatively, a final order be entered determining that

the Petitioner has not established her claim of racial

discrimination in the hiring decision at issue, and that the

Petition be dismissed in its entirety for this reason as well.

DONE AND ENTERED this 5th day of December, 2008, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

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 5th day of December, 2008.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Eulinda M. Russ

Post Office Box 767

Cottondale, Florida 32431

Timothy W. Warner, Esquire

Warner & Wintrode, P.A.

Post Office Box 1820

Panama City, Florida 32402

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.