09-001968 Laura A. Westbrooks vs. City Of North Miami Status: Closed Recommended Order on Tuesday, September 1, 2009.

Summary: Petitioner failed to demonstrate that she was discriminated against on the basis of race and the failure to afford an equal employment opportunity. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAURA A. WESTBROOKS, )

)

Petitioner, )

)

vs. ) Case No. 09-1968

)

CITY OF NORTH MIAMI, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on June 18, 2009, by video teleconference with connecting sites

in Miami and Tallahassee, Florida, before Errol H. Powell, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Laura A. Westbrooks, pro se

890 Northeast 138th Street

North Miami, Florida 33161

For Respondent: V. Lynn Whitfield, Esquire

City of North Miami

776 Northeast 125th Street

North Miami, Florida 33161

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

an unlawful employment act by discriminating against Petitioner

on the basis of race in violation of the Florida Civil Rights

Act of 1992, as amended.

PRELIMINARY STATEMENT

Laura A. Westbrooks filed an employment discrimination

complaint against the City of North Miami (City) on the basis of

race with the Miami-Dade County Equal Opportunity Board. The

discrimination complaint was referred to and dual filed with the

federal Equal Employment Opportunity Commission (EEOC) and the

Florida Commission on Human Relations (FCHR) and was

investigated by the EEOC. The EEOC determined that it was

“unable to conclude that the information obtained during its

investigation established violations of the statutes” and, as a

result, issued a Right to Sue. Being prohibited from

reinvestigating the discrimination complaint and unable to grant

substantial weight to the EEOC’s decision due to the EEOC being

unable to conclude that a violation occurred, the FCHR

determined that it too would issue a Right to Sue.

Ms. Westbrooks decided to file a Petition for Relief for an

unlawful employment practice, which was timely filed. On

April 15, 2009, FCHR referred this matter to the Division of

Administrative Hearings.

At hearing, Ms. Westbrooks testified on her own behalf and

entered 12 exhibits (Petitioner's Exhibits numbered 1, 2, 3, 5-

12, 14 (pages 1 and 4), and 15) into evidence. 1 The City

presented the testimony of two witnesses and entered ten

exhibits (Respondent's Exhibit numbered 1 through 10) into

evidence.

A transcript of the hearing was not ordered. At the

request of the parties, the time for filing post-hearing

submissions was set for more than ten days following the

conclusion of the hearing. The parties timely filed their post

hearing submissions, which were considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Ms. Westbrooks is an African-American female.

2. In 2000, Ms. Westbrooks began her employment with the

City in a billing position in Customer Service as an Account

Clerk. She performed very well in that position and received an

above satisfactory rating.

3. In 2002, a Junior Accountant position became available,

and Ms. Westbrooks applied for the position. The position

description for a Junior Accountant indicates that the

position’s duties included “Professional accounting work

covering all fixed assets accounting and reporting.” Further,

the position description indicates that the minimum

qualifications consisted of the following:

Associate’s degree in Accounting or related

field, with some work experience in an

accounting environment

OR

An equivalent combination of training and

experience which provides the required

knowledge, skills and abilities.

4. Carlos Perez, the City’s Finance Director and a

Certified Public Accountant (CPA), performed the hiring for the

Junior Accountant position. He hired Ms. Westbrooks for the

Junior Accountant position.

5. Mr. Perez considered Ms. Westbrooks’ performance in the

Junior Accountant position as excellent. She consistently

received performance ratings of above satisfactory and merit

increases.

6. In 2006, an Accountant position became available. The

City advertised the position. The announcement for the position

indicated that the position’s duties included “complex technical

work performing professional accounting work covering all phases

of account maintenance, classification, analysis, and

expenditure control of all phases of City wide fiscal

transactions.” Further, the announcement indicated that the

minimum requirements for the position were:

Bachelors degree in Accounting, Finance or a

closely related field with major coursework

in accounting . . . plus one to two years

experience in accounting.

OR

An equivalent combination of training and

experience which provides the required

knowledge, skills, and abilities.

Moreover, the announcement provided that “ Only those

applicants who most closely meet the specific requirements for

the position will be contacted for an interview. ”

7. Ms. Westbrooks applied for the Accountant position.

8. No dispute exists that Ms. Westbrooks does not possess

a bachelor’s degree in accounting. She has an Associates in

Arts (AA) degree in Business Administration, which she obtained

in 1993.

9. At all times material hereto, the City had a tuition

reimbursement program, wherein an employee of the City could

obtain a degree and receive tuition reimbursement for obtaining

the degree. Ms. Westbrooks was aware of the reimbursement

program but chose not to avail herself of it in order to obtain

a bachelor’s degree in accounting. However, she did avail

herself of the program to obtain certifications associated with

her position as a Junior Accountant.

10. No dispute exists that Ms. Westbrooks met the minimum

requirements for the Accountant position, satisfying the

alternative requirement of equivalent combination of training

and experience.

11. Ms. Westbrooks was provided an interview.

12. An interview panel conducted the interviews and rated

the applicants, who were interviewed, on a scale of 0 through 5.

The interview panel consisted of the City’s Chief Accountant,

Budget Administrator, and Pension Administrator. Only the

applicants who had an overall rating of 3.0 or higher on the

interview were submitted by the City’s Personnel Administration

Director, Rebecca Jones, to Mr. Perez. Ms. Jones is an African

American and is female.

13. Mr. Perez makes the final decision as to who is hired

for accounting positions. He was the final decision-maker for

this Accounting position. Mr. Perez is not African American.

14. Only three persons received an overall interview

rating of 3.0 or higher. Ms. Westbrooks was one of the three

persons, and she received the highest interview score. On

December 6, 2006, Ms. Jones submitted to Mr. Perez the names of

the three persons, with their interview scores:

Laura Westbrooks 4.0

Ronald Castrillo 3.4

Bayard Louis 3.3

15. Mr. Perez had never hired an accountant who did not

have a four-year college degree, i.e., a bachelor’s degree,

regardless of race. His position was that the person hired for

the Accountant position, and all of his accountants, needed a

four-year college degree because that person, as all of his

accountants, would be fourth in line to head the Finance

Department, as Acting Finance Director, behind himself, the

Assistant Finance Director, and the Chief Accountant—at least

once a year he (Mr. Perez), the Assistant Finance Director, and

the Chief Accountant all attend a conference together; and that

a person with a four-year college degree has the technical

ability needed to perform in the position, whereas, a person

without a four-year degree would not have the technical ability

needed. Further, as to the accounting focus of a junior

accountant position versus an accountant position, a junior

accountant’s focus is fixed assets, whereas, accountants are

involved with all aspects of accounting, which includes and goes

beyond fixed assets.

16. Mr. Perez had made Ms. Westbrooks aware of his

position, regarding accountants, during her tenure in the Junior

Accountant position.

17. Ms. Jones did not consider Mr. Perez’s position and

action, regarding the hiring of accountants, as being

discriminatory.

18. Mr. Perez’s final requirement of a four-year college

degree in order to be hired by him as an accountant became the

City’s requirement.

18. Mr. Perez offered the Accountant position to

Mr. Castrillo who had an AA degree in Business Administration, a

Bachelor’s degree in Accounting and who was scheduled to

graduate the following semester with a Master’s degree in

Accounting. However, Mr. Castrillo did not accept the position

due to the failure to agree on a salary.

19. The Accountant position was re-advertised.

20. Ms. Westbrooks remained eligible for the Accountant

position and was, therefore, in the pool of applicants to be

considered; but was not re-interviewed because the interview

questions did not change

21. On March 8, 2007, Ms. Jones submitted to Mr. Perez the

names of the applicants who had an overall rating of 3.0 or

higher on the interview, together with their interview scores:

Tricia Beerom 4.0

Sampson Okeke 3.4

Mirtha Servat 3.3

22. Mr. Perez hired Ms. Beerom for the Accountant

position. Ms. Beerom had a Bachelor of Science degree in

Accounting and Management and was an African-American female.

23. Ms. Westbrooks believed that she was not afforded an

opportunity to advance because of Mr. Perez’s position regarding

accountants possessing a four-year degree and that, therefore,

she was discriminated against. However, even though the City

had a policy against discrimination and a procedure to file

discrimination complaints, she chose not to proceed through the

City’s discrimination process because she had no faith in the

City.

24. Ms. Westbrooks believed that she was not going to be

treated fairly by the City in any attempt by her to achieve

upward mobility, which caused her to continuously experience

stress, which negatively impacted her health. She eventually

resigned from the City. Ms. Westbrooks’ resignation was

effective May 4, 2007.

25. At the time of her resignation, Ms. Westbrooks’ salary

was $40,000. After her resignation, she received her

contributions to the City’s retirement system in the amount of

approximately $13,000.

26. In September 2008, over a year after her resignation

from the City, Ms. Westbrooks obtained employment with the

University of Miami, School of Medicine, as a Grant and

Contracts Specialist, with a salary of $41,500.

27. Ms. Westbrooks did not identify any employees who were

in classified positions as herself, who were or were not African

American and who had upward mobility in positions, and who did

not have four-year college degrees. Classified positions are

protected by the City’s Civil Service rules and must be

advertised.

28. Ms. Westbrooks did identify City employees who were in

unclassified positions, not a classified position like herself,

i.e., directors and city manager, who did not have four-year

college degrees, and who were and were not African American.

Unclassified positions are not protected by the City’s Civil

Service rules and need not be advertised. The city manager

hires all department directors.

29. No dispute exists that, at all times material hereto,

a former Director of Purchasing was a white female and a long

term employee, who had an AA, not a four-year degree, and who

was promoted through the ranks; a Director of Public Works was a

white male and a long-term employee, who had an AA, not a four-

year degree, and who was promoted through the ranks.

30. No dispute exists that the City’s City Manager is an

African-American male who does not have a four-year college

degree.

31. No dispute exists that, at all times material hereto,

all of the City’s Department Directors, who are African

American, have four-year college degrees.

32. The EEOC instituted an “E-RACE Initiative (Eradicating

Racism and Colorism from Employment)” and developed a “set of

detailed E-RACE goals and objectives to be achieved within a

five-year timeframe from FY [fiscal year] 2008 to FY [fiscal

year] 2013.” Included in the E-RACE Initiative, were “Best

Practices for Employers and Human Resources/EEO Professionals,”

which included best practices for recruitment, hiring and

promotion. The E-RACE Initiative was implemented by the EEOC

subsequent to the action complained of by Ms. Westbrooks and was

not demonstrated to be federal law, rule, or regulation; and

was, therefore, not shown to have the force or impact of law.

The E-RACE Initiative is not applicable to the instant case.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Sections 760.11 and 120.569,

Florida Statutes (2009), and Subsection 120.57(1), Florida

Statutes (2009).

34. The standard of proof is preponderance of the

evidence. § 120.57(1)(j), Fla. Stat. (2009).

35. These proceedings are de novo . § 120.57(1)(k), Fla.

Stat. (2009).

36. Section 760.10, Florida Statutes, provides in

pertinent part:

(1) It is an unlawful employment practice

for an employer:

(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.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's race, color, religion,

sex, national origin, age, handicap, or

marital status.

37. The issue of whether the City discriminated against

Ms. Westbrooks in violation of the Florida Civil Rights Act of

1992, as amended, is the only issue before the undersigned. The

issue as to whether the City failed to hire her for the

Accountant position for non-discriminatory reasons in that the

City failed to follow its own rules and policies in the hiring

process is not before the undersigned unless such failure was

done discriminatorily. The evidence fails to demonstrate that

the City failed to follow its rules and policies for

discriminatory purposes in not hiring Ms. Westbrooks for the

Accountant position.

38. In the instant case, Ms. Westbrooks must rely upon

circumstantial evidence to prove discriminatory intent by the

City. For such cases, a three-step burden and order of

presentation of proof have been established for unlawful

employment practices. McDonnell Douglas Corporation v. Green ,

411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 688 (1973); Aramburu

v. The Boeing Company , 112 F.3d 1398, 1403 (10th Cir. 1997);

Combs v. Plantation Patterns , 106 F.3d 1519, 1527-1528 (11th

Cir. 1997).

39. The initial burden is upon Ms. Westbrooks to establish

a prima facie case of discrimination. McDonnell Douglas , at

802; Aramburu , at 1403; Combs , at 1527-1528. Ms. Westbrooks

establishes a prima facie case of discrimination by showing four

factors: (1) that she belongs to a protected group; (2) that

she was subjected to an adverse employment action; (3) that her

employer treated similarly situated employees outside the

protected group differently or more favorably; and (4) that she

was qualified to do the job. McDonnell Douglas , supra ;

Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997);

Aramburu , supra ; Combs , supra . See Kendrick v. Penske

Transportation Services , 220 F.3d 1220 (10th Cir. 2000)

(similarly situated employees need not be outside the protected

group).

40. Once Ms. Westbrooks establishes a prima facie case, a

presumption of unlawful discrimination is created. McDonnell

Douglas , at 802; Aramburu , at 1403; Combs , at 1528. The burden

shifts then to the City to show a legitimate, nondiscriminatory

reason for its action. McDonnell Douglas , at 802; Aramburu , at

1403; Combs , at 1528.

41. If the City carries its burden, Ms. Westbrooks must

then prove, by a preponderance of the evidence, that the reason

offered by the City is not its true reason, but only a pretext

for discrimination. McDonnell Douglas , at 804; Aramburu , at

1403; Combs , at 1528.

42. However, at all times, the ultimate burden of

persuasion that the City intentionally discriminated against her

remains with Ms. Westbrooks. Texas Department of

Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67

L. Ed. 2d 207 (1981).

43. Applying the prima facie standards, the evidence

demonstrates that Ms. Westbrooks satisfied the first two factors

and the fourth factor. Ms. Westbrooks demonstrated that she

belongs to a protected class (race, color, sex, religion,

national origin, age, and marital status); that she was

subjected to an adverse employment action (not being hired for

the Accountant position); and that she was qualified for the

Accountant position.

44. However, Ms. Westbrooks failed to demonstrate that the

City treated similarly situated employees, whether inside or

outside the protected group, differently or more favorably.

Anderson v. WBMG-42 , 253 F.3d 561, 565 (11th Cir. 2001);

McGuinness v. Lincoln Hall , 263 F.3d 49, 53, 54 (2d Cir. 2001);

Kendrick , supra ; Holifield , supra at 1562; Shumway v. United

Parcel Service, Inc. , 118 F.3d 60, 64 (2d Cir. 1997). She must

show that she and the other employees that she identified (the

comparator employees) are “similarly situated in all relevant

respects.” Holifield , supra at 1562. Ms. Westbrooks must show

that she “shared sufficient employment characteristics with

[the] comparator[s] so that they could be considered similarly

situated. . . . [they] ‘must be similarly situated in all

material respects’—not in all respects.” McGuinness v. Lincoln

Hall , 263 F.3d 49, 53 (2d Cir. 2001); Shumway v. United Parcel

Service, Inc. , 118 F.3d 60, 64 (2d Cir. 1997). “In other words

. . . those employees must have a situation sufficiently similar

. . . to support at least a minimal inference that the

difference of treatment may be attributable to discrimination.”

McGuinness , supra at 54.

45. The evidence fails to demonstrate that the City’s

employees outside of the protected group—the former Director of

Purchasing and the Director of Public Works—and the City’s

employees inside the protected group—Department Directors and

the City Manager—were similarly situated in all material

respects to Ms. Westbrooks in order to establish, at least, a

minimal inference that the difference of treatment may be

attributable to discrimination. Consequently, Ms. Westbrooks

and the identified employees were not comparator employees.

46. Furthermore, the evidence demonstrates that all

accountants hired by Mr. Perez, both African American and white,

had four-year accounting degrees (four-year college degrees).

47. Hence, Ms. Westbrooks failed to establish a prima

facie case of discrimination.

48. Assuming Ms. Westbrook had established a prima facie

case, the City demonstrated a legitimate, nondiscriminatory

reason for its employment action of not hiring her for the

Accountant position. The City demonstrated that, even though

Ms. Westbrooks was qualified for the position by meeting the

minimum qualifications for the position and obtaining the

highest overall interview rating at the first advertisement of

the position, the more qualified person for the City was a

person who possessed a four-year college degree.

49. Hence, Ms. Westbrooks failed to demonstrate that the

City’s reason for not hiring her for the Accountant position was

not the true reason, but a pretext for discrimination.

50. Further, Ms. Westbrooks presents an argument, in

essence, that she was the victim of unequal employment

opportunity in that white employees of the City, who did not

have a four-year degree, were afforded an opportunity for upward

mobility, whereas African-American employees of the City, who

did not have a four-year degree, were not afforded an

opportunity for upward mobility; and that such disparate

treatment is pervasive and systemic throughout the City and is

discriminatory. She cites, as support for this argument, Griggs

v. Duke Power Company , 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d

158 (1971).

51. In Griggs , supra , the power company began to require a

high school diploma and the passage of two tests for initial

employment and transfer to certain positions for all employee,

“whites and Negroes alike.” Griggs at 428. The requirement had

the effect of excluding “Negroes” from certain positions. The

evidence before the Court showed that “neither [test] was

directed or intended to measure the ability to learn to perform

a particular job or category of jobs”; that “neither the high

school completion requirement nor the general intelligence test

is shown to bear a demonstrable relationship to successful

performance of the jobs for which it was used”; and that

“employees who have not completed high school or taken the tests

have continued to perform satisfactorily and make progress in

departments for which the high school and test criteria are now

used.” Griggs at 428, 431-432. The Court stated that “Congress

has not commanded that the less qualified be preferred over the

better qualified simply because of minority origins.” Griggs at

436. The Court held that, unless the testing or measuring

procedures are demonstrably a reasonable measure of job

performance, they are forbidden. Id.

52. In the instant case, Ms. Westbrooks challenges the

Mr. Perez’s determining factor of a four-year college degree in

order to be hired as an accountant by him. No other factor,

regarding the requirements of job performance, is being

challenged by her. Unlike Griggs , supra , the instant case is

devoid of any evidence that demonstrates whether an accountant,

without a four-year college degree, has or is performing

satisfactorily in an accountant position because no person

without a four-year college degree has been hired by Mr. Perez.

However, Ms. Westbrooks, as having the ultimate burden of

persuasion, has failed to demonstrate that Mr. Perez’s action

falls within the prohibition of Griggs , supra . Mr. Perez

presented a legitimate business reason for hiring a person with

a four-year college degree in accounting for the accounting

position; the final determinative factor bears a demonstrable

reasonable relationship to the performance of the person in the

accounting position. The evidence fails to demonstrate that the

determinative four-year college degree in accounting fails to

bear a reasonable relationship to successful performance of the

job of accounting. Hence, Ms. Westbrooks has failed to

demonstrate that the City discriminated against her.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order finding that the City of North Miami did not

commit a discriminating employment practice against Laura A.

Westbrooks in violation of the Florida Civil Rights Act of 1992,

as amended, by failing to hire her for an accounting position.

DONE AND ENTERED this 1st day of September, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

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 1st day of September, 2009.

ENDNOTE

1/ Petitioner’s Exhibits numbered 4 and 14 were rejected.

Petitioner’s Exhibit number 11 was admitted only as to Mark

Collins.

COPIES FURNISHED :

Laura A. Westbrooks

890 Northeast 138th Street

North Miami, Florida 33161

V. Lynn Whitfield, Esquire

City of North Miami

776 Northeast 125th Street

N o r t h M i a m i , F l o r i d a 3 3 1 6 1

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.