12-001124 Luther E. Council, Jr. vs. City Of Tallahassee Status: Closed Recommended Order on Wednesday, August 29, 2012.

Summary: Petitioner failed to prove an unlawful employment practice of discrimination on the basis of race or age under section 760.10, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUTHER E. COUNCIL, JR. , )

)

Petitioner, )

)

vs. ) Case No. 1 2 - 1124

)

CITY OF TALLAHASSEE , )

)

Respondent. )

)

RECOMMENDED ORDER

On July 17 and 18, 201 2 , a duly - noticed hearing was held in

Tallahassee, Florida, before F. Scott Boyd, an Administrative

Law Judge assigned by the Division of Administrative Hearings.

APPEARAN CES

For Petitioner: Luther E. Council , Jr., pro se

1242 Wakulla Arran Road

Crawfordville , Florida 32 327

For Respondent: Hetal H. Desai , Esquire

Linda R. Hudson, Esquire

City of Tallahassee

300 South Adams Street, Box A - 5

Talla hassee , Florida 32 301

STATEMENT OF THE ISSUE

The issue is w hether the Respondent committed an unla wful

employment practice under s ection 760.10, Florida Statutes

(201 1 ) , by discriminating against Petitioner on the basis of

race o r age , and if so, what remedy should be ordered .

PRELIMINARY STATEMENT

On S e ptember 6, 2011 , Petitioner filed a complaint with the

Florida Commission on Human Relations (Commission) , alleging

that the City of Tallahassee (City) had discriminated against

him based upon his race and age in failing to hire him for the

position of Building Official or interview him for the position

of Facilities Manager. On February 27, 2012 , the Commission

issued a Notice of Determination of No Cause, and on March 27,

2012 , Petitioner filed a Petition for Relief. On March 28,

2012 , the matter was referred to the Division of Administrative

Hearings for assignment of an administrative law judge.

Pursuant to several pre - hearing motions, discovery of

certain correspondence from the City Attorney was denied, and

issues at hearing were narrowed to exclude i nformation relating

to : alleged violation of veterans ' preference requirements ; the

truth or falsity of events relating to Petitioner ' s termination

from employment at Wakulla C ounty; uncorroborated hearsay as to

Petitioner ' s performance at the job interview; inappropriate

behavior of City of Tallahassee officials in unrelated matters;

and the truth or falsity of events involving Petitioner at the

City of Tallahassee occurring pr ior to the date the position of

Building Official was first advertised.

The case was noticed for hearing on July 17 and 18, 2012 ,

in Tallahassee . Pursuant to agreement of the parties, and based

upon stipulation s between the parties as to facts necessary to

support a prima facie case, Respondent presented its case first,

offering 30 exhibits, admitted without objection, and the

testimony of 10 witnesses . Respondent ' s Exhibit 55 , a composite

exhibit related to the grounds for Petitioner ' s termination from

Wakulla County , was admitted for impeachment purposes only.

Petitioner testified himself and offered two exhibits , which

were admitted without objection.

The three - volume T ranscript of proceedings was filed with

the Division on July 31, 2012. Petit ioner timely filed a

Proposed Recommended Order, which was considered. RespondentÓs

Proposed Recommended Order was filed late, and was not

considered.

FINDINGS OF FACT

1. The City of Tallahassee is a Florida municipality that

employs over 15 persons .

2 . Mr. Luther E. Council, Jr., " grew up " in a construction

company. His father and two uncles had started Council Brothers

Construction in the backyard of his home, doing plumbing, fire

protection, and heating and air conditioning contracting.

Council Brot hers grew into a large corporation and expanded into

general contracting . Luther E. Council, Jr. , had " a shovel in

his hand " from age ten and has been in construction all of his

life, except for time spent in the military. In the U.S. Navy ,

he worked in avionics . He was injured in the military and is

now partially disabled from that service - connected injury.

3 . Mr. Council subsequently worked in numerous jobs

in volving various aspects of construction, with such well known

employers as Ingalls Shipbuil ding, Brown and Root, Union

Carbide, and Hays Mechanical Contractors, as well as the State

of Florida , before accepting a job with the City of Tallahassee

in 1996. He worked for the City for over ten years , departing

as C hief M echanical I nspector in the D ivision of Building

Inspections in 2007 . Mr. Council then took a position as the

Director of the Division of Building Inspections (Building

Official) for Wakulla County. He was terminated from that

position in November of 2009.

4 . Mr. Ronnie Spoon er, the Building Official for the City

of Tallahassee , had nearly 26 years of service with the City and

was going to retire at the end of 2010. He was a person who had

the respect of contractors, paid great attention to customer

service, and had strong le adership skills. He could represent

the City both with builders and in more formal or sophisticated

settings , such as presentations before the Chamber of Commerce.

T he City hoped to replace Mr. Spooner with someone of similar

abilities.

5 . On or about D ecember 2, 2010, Ms. Karen Jumonville,

Director of the Growth Management Department for the City,

submitted a Position Information Questionnaire (PIQ) that had

been completed by Mr. Spooner to the Human Resources Department.

This document described essent ial job responsibilities of the

Building Official position, outlined required education,

experience, and certifications needed to perform the job, and

listed specialized skills, knowledge, or abilities that were

required or desirable. The PIQ indicated th at a b achelor ' s

d egree and seven to eight years of work experience were

preferred. It indicated that a Class E driver ' s license and

Standard Building Code Administrator certification were

required.

6 . On or about December 8, 2010, the Job S pecification s

for the B uilding Official were revised. The " Minimum Training

and Experience " requirements were described as follows:

" Possession of a bachelor ' s degree in engineering, a r chitecture

or a construction related field and five years of experience in

buildin g inspection, construction or design in compliance with

Florida Building Code; or an equivalent combination of training

and experience. Two years of the required experience must have

been in a supervisory or administrative capacity. " The

" Necessary Speci al Requirements " section required a valid

license as a Florida Building Code Administrator and further

provided that, " At the time of appointment, must possess one of

the following: a bachelor ' s degree in engineering, architecture

or a construction relate d field; a current active or inactive

general or building contractors license, preferably issued by

the State of Florida Department of Business and Professional

Regulation; or designation as a Certified Public M anager by an

accredited college or university . "

7 . The City ' s Building Official is responsible for

overseeing the pulling of permits, inspections, land use

reviews, site plans, and Code enforcement, supervising about 30

employees.

8 . Mr. Jay Townsend is the Assistant City Manager for

De velopment and Transportation Services. He oversees the

Departments of Planning, Growth Management, Public Works,

StarMetro, and Aviation , and also has oversight of two sub -

departments, the Capital Regional Planning Agency and Blueprint

2000.

9. Mr. Townsend testi fied that t he Building Official

position as initially advertised in December had a closing date,

but that he subsequently directed that the position vacancy

listing be re - posted to indicate an " open until filled "

deadline. He testified that he had not loo ked at the pool of

applicants who had applied when he directed the re - posting, and

that he just generally preferred to leave postings open longer.

10 . When applications for an open position are received,

the City ' s Human Resources Department conducts scr eening to

ensure that applicants meet the minimum requirements for the

position.

11 . The H uman Resources Department prepared a list of

eligible applicants that was sent to Ms. Jumonville . The

Eligibility Report , as revised on or about March 22, 2011 ,

in cluded the names of Mr. Council and Mr. Sherman Dale Baker ,

the person ultimately chosen for the position , among others .

12. Mr. Council did not have a college degree, but had

equivalent training and experience. He possessed a valid

license as a Florida Building Code Administrator , a Florida

Class " E " driver ' s license, and a Building Contractor ' s license.

His many years of experience and licensure in plumbing,

mechanical, underground utilities, fire protection, gas, and

electrical qualified him for the position of Building Official

with the City.

1 3 . An initial applicant screening team consisting of

Ms. Jumonville, Mr. Spooner, Mr. Jerry McFarland, Mr. Kenny

Locke, Ms. Anne Randolph, Mr. Steve Schafer, and Mr. Mike

Garangy was created .

1 4 . In March, t he screening committee ranked 37 eligible

applicants, with each member of the committee giving each

applicant an " A " , " B " , or " C " ranking, sometimes with a " " or

" - " . The scores were then averaged using a weighted scale,

giving each " A " a value of 3, ea ch " B " a value of 2, and each

" C " a value of 1, with a plus or minus adding or subtracting a

quarter point, respectively. These were purely subjective

rankings. These rankings were annotated in a report dated

March 30, 2011.

1 5 . In the final rankings of the screening committee,

Mr. Freeland received the highest score of 18.75. Mr. Dodson

had a score of 18.25. Mr. Baker scored at 16.5, and Mr. Council

scored at 16 .

1 6 . Ms. Jumonville chose candidates from the list for

interviews , with Mr. Townsend ' s concurrence. Three applicants

who had ranked higher than Mr. Council had withdrawn their

applications. Six applicants were selected as candidates to be

interviewed: Mr. Freeland; Mr. Dodson; Mr. Baker; Mr. Council;

Mr. Menendez; and Mr. Fadiora. Mr. Co uncil was selected for an

interview based upon his point score, his qualifications , and

his status as a veteran. Mr. Menendez, who had received only

ten points, and Mr. Fadiora, who had received only n i ne , were

also selected for interviews , although other individuals had

received higher point totals. Mr. Townsend testified that the

City always tries to maintain a good demographic mix.

Mr. Council was chosen for an interview, and does not allege

that the choice of those to be interviewed constituted

discr imination against him.

1 7 . The City established two committees to interview the

candidates and provide recommendations . Ms. Jumonville selected

the members of each committee . The candidates were to appear

before each committee, which would independently interview them

and rank them in order of preference.

1 8 . The Employee Committee consisted of six City employees

who would be expected to have some contact with the new Building

Official: Ms. Laura Williams, Assistant to the Building

Official; Mr. Dani el Mann, Supervisor in Inspection Services;

Ms. Carol Horsey, Permit Technician; Mr. Dwight Arnold, Manager

of Land Use and Development Services; Mr. Doug Berman, Land Use

Administrator; and Mr. Doug Moore, Supervisor of the Records

Management/Technician T eam.

1 9 . The Executive Committee consisted of senior City

officials and Department Directors, as well as a couple of

" customers " : Mr. Jay Townsend ; Ms. Jumonville; Mr. Gabe

Menendez, Director of Public Works; Ms. Sabrina Holloman,

Director of Information Systems Services; Mr. Laurie Dozier,

President of Mad Dog Construction; and Mr. Mark Llewellyn, CEO

of Genesis Group , an engineering firm .

20 . Interview questions were solicited from each committee

member, narrowed down, and compiled into a document for each

group. Members of the interview committees were given

information from the employment applications of the six

candidates prior to the interviews.

2 1 . While the age of the candidates was not provided to

the committee members , it would have been pos sible for them to

roughly calculate the likely age of the candidate s from high

school education information or in some cases from Florida

Driver ' s License numbers . Mr. Council ' s records showed receipt

of a GED from Rickards High School in 1969; Mr. Baker ' s records

showed receipt of a diploma from Clinton High School in 1978 .

The race of each candidate was indicated. Mr. Council ' s

application showed his r ace as " AMIND " and Mr. Baker ' s showed

his race a s " WHITE. "

2 2 . Prior to the interviews, on the morni ng of April 14,

2011, Mr. Council e - mailed Ms. Jumonville and asked for a copy

of the questions that would be asked during the interview if

they were being made available prior to the interviews . He also

asked how many people were being interviewed, and a sked about

the purpose of having two different committees interview all

applicants. Ms. Jumonville forwarded the e - mail to Mravis

Parsons in the Human Resources Department, who responded by e -

mail to Mr. Council. In his e - mail, Mr. Parsons explained that

it was not past practice of the City to release the questions

beforehand ; that there were six individuals being interviewed,

but that Mr. Council should use the public records request

process to receive their names ; and that the use of multiple

interv iew teams was becoming more prevalent in recent years ,

with the purpose of obtain ing different perspectives.

2 3 . Mr. Council e - mailed a re ply to Mr. Parsons, asking if

all applicants would be asked the same questions, and explaining

that his concern was i n being judged fairly by each committee

member. He wrote, " There are a few people, in Growth

Management, I could not be judged fairly even with a hand full

of $100.00 bills in both hands for them. If any of these people

are on either committee, I would h ave a problem. " He went on to

explain that he had earlier had an interview for a different job

in which he was the last candidate to be interviewed, and that

when he went in for his interview the candidate who had

interviewed before him was being congratu lated on his selection

f or the job. Mr. Council said this individual had the interview

questions two days prior to that interview, and that this

individual was also an applicant for the Building Official

position. Mr. Council stated he only wanted to be treated

fairly, not knowing if this individual was being interviewed or

not. He concluded by stating that " At this time, I will reserve

all of my rights for a ' public records request ' for all

information/materials/emails/recordings/scratch pads/etc. until

after the selection ha s been made. "

2 4 . The interviews were held on April 14 and 15, 2011.

Mr. C ouncil wore a dress shirt and tie, but no business jacket .

Shortly before his interview, Mr. C ouncil cut his hand on a

paper towel dispenser. His hand bled for about 15 minutes due

to the effects of blood thinning medication. Mr. Council

wrapped his hand with bandages and went on to the interview s .

2 5 . At the interviews, Mr. Council greeted everyone and

was not disrespectful. In telling about himself, Mr . Council

brought up the fact that he had been terminated from employment

as the Building Official for Wakulla County, s t a ting that he had

been wrongly dismissed. He generally answered the questions he

was asked, but was not succinct in his responses . He did not

often give specific examples to support his answers.

2 6 . One member of the Employee Committee testified that h e

knew Mr. Council was a Native - American, while another testified

he was unaware of that fact. There was no discussion among the

commi ttee members of the age or race of any candidate. The

Employee Co mmittee ranked Mr. Baker as its first choice,

followed by Mr. Dodson and then Mr. Freeland. Mr. Council was

ranked at or near the bottom of the six candidates .

2 7 . Similar interviews were conducted by the Executive

Committee. Mr. Townsend testified that Mr. Baker did well in

the interview. The committee was excited about his presentation

and Mr. Townsend had the impression that Mr. Baker would have

the ability to relate well to contractor s in the field on one

day and then turn around and represent the City well at the

executive level at a meeting of the Chamber of Commerce or

similar place the next. On the other hand, Mr. Townsend said

that Mr. Council did not do very well. He thought th at

Mr. Council was not dressed appropriately for an interview and

did not present the " executive level " appearance that he was

hoping for. He believed Mr. Council ' s responses to questions

were vague and long - winded. Mr. Townsend testified that he was

" ca ught off guard " by Mr. Council ' s statement that he was " not

afraid to fire " employees. Mr. Townsend was concerned about

this statement because he believed terminations are sensitive

and because it did not reflect the type of cooperative manager

he was loo king for. His overall impression was that if

Mr. Council became the Building Official, Mr. Townsend would

need to constantly monitor how Mr. Council was conducting

himself with employees and with members of the public.

2 8 . Ms. Jumonville testified that M r. Baker was " stellar "

in his interview. He was personable, had a professional

demeanor, and gave many specific examples from his work in

Escambia County to illustrate the points he was making in

response to questions he was asked. Ms. Jumonville testifi ed

that Mr. Council presented poorly at the interview. She stated

that he took so long responding to the initial " tell us a bit

about y ourself " question that the committee was unable to get

through all of the questions. She stated that she did not like

t he fact that Mr. Council had stains on his shirt and that he

brought up his employment in Wakulla County, defending his

actions there. She stated that Mr. Council was " name dropping "

in the interview, but she could not remember the names of any

people to whom he had referred. Ms. Jumonville knew that

Mr. Council was Native - American from his application. She

testified that she was concerned that Mr. Council lacked the

communication skills and customer service skills that she felt

were needed for the posit ion.

2 9 . Ms. Holloman testified that Mr. Baker gave an

excellent interview. She said that he used illustrative

examples in responding to questions and she had the impression

that he had very good supervisory skills. Ms. Holloman stated

that Mr. Counci l did not always answer the questions that were

asked. He did no t use examples and was not as " professional " in

his presentation. She was looking for excellent communication

skills because of the role of the Building Official in customer

service and buil ding code enforcement. At hearing , Ms. Holloman

testified she could not remember which questions she asked and

thought she remembered a question about certificates of

o ccupancy , but was not certain . She stated that all candidates

were asked the same ques tions.

30 . Mr. Gabriel Menendez testified that he believed

Mr. Baker was energetic and displayed a strong positive

attitude. Mr. Menendez testified that Mr. Baker was the first

person they interviewed and that he " set a very high bar . " In

contrast, h e b elieved that while Mr. Council answered all

questions he was asked , he was a bit long - winded. Mr. Menendez

concluded that Mr. C ouncil was " not a good fit " for the C ity.

He vaguely remembered a question asked of Mr. Council regarding

c ertificate s of o ccup ancy and could not recall which questions

he had asked.

3 1 . After d iscussions within the Executive Committee, the

committee ranked Mr. Baker as its first choice, followed by

Mr. Freeland and then Mr. Dodson . Mr. Council was ranked at or

near the bottom o f the six candidates. There was no discussion

of any candidate ' s race or age among the members of the

Executive Committee .

3 2 . After considering input from the two Committees,

Ms. Jumonville came up with her choices, which were, in order of

preference: Mr. Baker, Mr. Freeland, and Mr. Dodson, and

presented them to Mr. Townsend. All three of these candidates

were Caucasian men.

3 3 . Ms. Jumonville and Mr. Townsend next reported to the

City Manager, Ms. Anita Favors Thompson, because she had

indicated tha t she wanted to be kept informed about the progress

in hiring a new Building Official. They only discussed the se

top three candidates, and there were no discussions about

Mr. Council. The City Manager asked that they do additional

background searches on the top candidate , Mr. Baker, and expand

to a national search .

3 4 . In early May, a more detailed background search was

conducted on Mr. Baker by the Human Resources Department ,

verifying his resume information and contacting employers

further back in hi s employment history. Th is background

research and all inquiries were positive , and a summary was sent

to Ms. Jumonville.

3 5 . Mr. Townsend had heard from City employees that

Mr. Council was upset and concerned because he had not heard

from the City after the interview. In J une, Mr. Townsend

received a telephone call from Mr. Council. Mr. Townsend

returned his call, with Mravis Parsons, then Director of

Human Resources, sitting in the room and listening to the

conversation. Mr. Council raised three concerns: he had heard

he had not been hired because he was supposedly unqualified;

that the City only wanted to hire a black candidate; and that he

had not been given his veterans ' preference. Mr. Townsend

advised Mr. Council that he was fully qualified or would not

even have been interviewed, that the three top candidates were

all white, and that as a veteran himself, he would be the first

person to assure Mr. Council would receive veteran s ' preference.

Mr. Townsend told Mr. Council that he had not eve n been among

the top three candidates from the interviews. Mr. Townsend

explained that no final selection had been made and that they

were going to broaden the search. Mr. Townsend asked

Mr. Council if he was still interested in remaining a candidate

thr ough the second iteration of interviews, and Mr. Council said

that he was.

3 6 . The national search was conducted in a manner quite

similar to the initial process, but sometimes using telephonic

interviews. The candidates who had been interviewed in the

first round of interviews in April were supposed to be sent

letters explaining this, but letters were not received by

Mr. Menendez or Mr. Council.

3 7 . The Human Resources Department prepared a revised

Eligibility Report on or about October 6, 2011, wh ich was sent

to Ms. Jumonville . It contained the name of Mr. Council, but

did not contain the name of Mr. Baker. Testimony indicated that

w hen a position is re - advertised, applicants who have been

considered previously are advised that they need not reap ply to

be considered, so while only those previous applicants who

affirmatively re - apply or tell the City they wish to be

considered further have their names on the later Eligibility

List, all previous applicants are considered. The Human

Resources D epart ment also sent a form containing a summary of

some statistics regarding those applicants. The form showed

that the 85 appli cants included 50 White males, eight Black

males, one American - In dian male, no Hispanic males, two White

females, one Asian female, 22 " other " applicant s, and one

applicant as requesting Veterans Preference. Since the Veterans

Preference is not indicative of race or gender, the numbers on

the summary sheet appear to contain a slight discrepancy.

3 8 . At the conclusion of the second r ound of interviews,

both the Employee Committee and the Executive Committee

recommendations still placed Mr. Baker first . Mr. Tim Monea, a

gentleman from Ohio , was the second choice . No evidence was

introduced as to the race or age of Mr. Monea. The Cit y Manager

met with these top two candidates, and said that she was

comfortable with either of them, but she did not make the hiring

decision.

3 9 . Mr. Townsend and Ms. Jumonville selected Mr. Baker to

fill the position of City Manager sometime in October or

November of 2011. It was not clear from the evidence who had

authority to make the final decision . Mr. Townsend indicat ed

that Ms. Jumonville made the final decision, while

Ms. Jumonville testified that she " recommended " Mr. Baker to

Mr. Townsend and that he made the final decision . The two were

in agreement that Mr. Baker should be hired, however.

Mr. Townsend did not know how old Mr. Council was, but was aware

that he was a Native - American. Ms. Jumonville stated t hat she

also knew that Mr. Council was a Native American but did not

know his age. Mr. Townsend and Ms. Jumonville did not discuss

either the race or age of any candidate in making the hiring

decision.

40 . Sometime before Mr. Baker began working , M s. Favors

Thompson r eceived an inquiry f rom City Commissioner Nancy Miller

asking them to review Mr. Baker ' s qualifications , suggesting

that h is college degree may have been from a " diploma mill " and

that he may not have the required licenses from the Department

of Business and Professional regu lation. This inquiry had been

raised with Commissioner Miller by Mr. Council. In response,

Mr. Townsend asked the Human Resources department to verify

Mr. Baker ' s qualifications. In an e - mail dated November 18,

2011, Mr. Townsend reported to Ms. Favors Thompson that

Mr. Baker had not submitted any information about his honorary

degree as part of his application for the Building Official

position, that Human Resources D epartment had determined that

h is 12 years of experience was s ufficient to be considere d

equivalent to the degree , and that his professional licenses had

been verified through the Department of B usiness and

Professional R egulation.

4 1 . Mr. Baker was qualified for the position of Building

Official with the City.

4 2 . Mr. Baker assumed the po sition of Building Official at

the City of Tallahassee on December 5, 2011.

43. Meanwhile, i n early 2011, the City began the hiring

process to fill the position of Facilities Manager . The

Facilities Manager was required to supervis e about 15 employees

and was responsible for developing and implementi ng policies

relating to the management, construction, and maintenance of the

City ' s 300 structures, including about 80 occupied structures.

Mr. Council submitted his application for th is position.

44 . Ms. Cynthia Barber, the Director of the Environmental

Policy and Energy Resources Department of the City, testified

that she was looking for someone with facilities management

experience and for someone with a strong demonstrated record of

management experien ce .

45 . Ms. Barber could not recall the exact number of

eligible applicants there were, but believed she looked through

more than 30 applications. Ms. Barber established an interview

committee, and interviews of five applicants whom she selected

were c onducted in March of 2011.

46 . Mr. Council was not interviewed for the position of

Facilities Manager at the City. Ms. Barber testified that she

did not select Mr. Council for an interview because he did not

have facilities management experience and bec ause she believed

he had been terminated from previous employment for failure to

properly manage personnel , and that the termination had been

upheld .

47 . No evidence was introduced as to the race or age of

the applicants who were interviewed for the pos ition of

Facilities Manager .

C ONCLUSIONS OF LAW

48 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1),

Florida Statutes (2012) .

4 9 . The Florida Civil Rights Act, sections 760.01 Î 760.11

and 509.092 , Florida Statutes (2011) , 1/ is patterned after

federal law contained in Title VII of the Civil Rights Acts of

1964, and Florida courts have determined that federal

discrimination law should be us ed as guidance when construing

its provisions. See Fla. State Univ. v. Sondel , 685 So. 2d 923

(Fla. 1st DCA 1996); Fla. Dep ' t of Cmty. Aff. v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

50 . Section 760.11(1) provides that an aggrieved person

may fil e a complaint with the C ommission within 365 days of the

alleged violation . Section 760.11(7) further provides that

within 35 days of the date of determination of no reasonable

cause , a person may petition for an administrative hearing .

Petitioner timely filed his complaint, and following the

Commission ' s initial determination, timely filed his Petition

for Relief requesting this hearing.

51 . Respondent is an employer as that term is defined in

section 760.02(7). In taking personnel actions, Mr. Townse nd ,

Ms. Jumonville , and Ms. Barber acted as agents of Respondent .

52 . Petitioner has the burden of proving by a

preponderance of the evidence that the Respondent committed an

unlawful employment practice. Fla. Dep ' t of Transp. v . J.W.C.

Co. , 396 So. 2d 7 78 (Fla. 1st DCA 1981).

53 . Section 760.10(1)(a) provides that it is an unlawful

employment practice for an employer to " fail or refuse to hire

any individual, or otherwise to discriminate against any

individual with respect to compensation, terms, cond itions, or

privileges of employment, because of such individual ' s race,

color, religion, sex, national origin, ag e, handicap, or marital

status. "

Race Discrimination Clai ms

54 . I n McDonnell - Douglas Corp. v. Green , 411 U.S. 792

(1973 ), the Supreme Court of the United States established the

analysis to be used in cases alleging claims under Title VII

that rely on circumstantial evidence to establish

discrimination. This analysis was later refined in St. Mary ' s

Honor Center v. Hicks , 509 U.S. 502 (1993).

55 . Under McDonnell - Douglas , Petitioner has the burden of

establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate, non -

discriminatory reason for the action taken against Petitioner.

It is a burden of production, not persuasion. If a non -

discriminatory reason is offered by Respondent, the burden then

shifts back to Petitioner to demonstrate that the offered reason

is merely a pretext fo r discrimination. As the Supreme Court

stated, before finding discrimination " [t]he factfinder must

believe the plaintiff ' s explanation of intentional

discrimination. " Hicks , 509 U.S. at 519.

56 . In order to establish a prima facie case, Petitioner

mu st prove: (1) he is a member of a protected class; (2) he was

subject to an adverse employment action; (3) the employer

treated similarly situated persons who were not members of the

protected class more favorably; and (4) he was qualified for the

job or job benefit at issue. Gillis v. Ga. Dep ' t of Corr. , 400

F.3d 883, 887 (11th Cir. 2005).

57 . Petitioner demonstrated a prima facie case of race

discrimination with respect to the Building Official position .

Petitioner is Native American, a protected cl ass. He suffered

an adverse employment action, in that he was not hired for the

Building Official position. He was treated less favorably than

a white male who was hired to fill the position. Finally,

Petitioner established that he was well qualified fo r the

position of Building Official .

58 . Respondent articulate d a legitimate, non -

discriminatory reason for not hiring Petitioner . Respondent met

that burden of produ ction with testimony from witnesses on the

interview committees and the hiring offic ials that Petitioner

did not do well in his interviews for the position and that

there were concerns about Petitioner ' s ability to represent

Respondent adequately in various settings due to his

communication skills .

5 9 . Petitioner had the ultimate bu rden to show that the

" poor interview " and concerns about his ability to represent

Respondent were pretextual, and nothing bu t an excuse for

discrimination. However, a reason is not pretext for

discrimination " unless it is shown both that the reason was

f alse, and that discrimination was the real reason. " Hicks , 509

U.S. at 515. Petitioner failed to meet this burden.

60 . Petitioner assert ed that Respondent ' s job description

for Building Official requires only five years of experience in

building inspe ction, construction, or design, with two years of

that experience in a supervisory position ; while section

468.609(3)(c), Florida Statutes, requires 10 years of similar

experience, with five years in supervisory positions , in order

to take the examination for certification as a B uilding C ode

A dministrator. This is correct , but Respondent ' s job

description also provided that the person filling the position

must possess a Florida Building Code Administrator ' s license at

the time of appointment. More importa ntly, it is undisputed

that both Mr. Baker and Petitioner did in fact have over ten

years of experience and that each possessed the Building Code

Administrator ' s license, so any discrepancy in the job

description provides no evidence of discriminatory inte nt with

respect to Petitioner .

61 . Petitioner assert ed that Mr. Baker was not qualified

for the Building Official position because the job description

required possession of one of the following : a bachelor ' s

degree; a building contractor ' s license; or designation as a

Certified Public Manager 2 / and that Mr. Baker possesse d none of

the three. However, the " Minimum Training and Experience "

requirements expressly provided that " an equivalent combination

of training and experience " could be substituted for the

required bachelor ' s degree. Respondent ' s Human R esources

Department determined that Mr. Baker ' s 12 years of experience

was equivalent to a degree. Ms. Angela Griffin , a Human

Resources Consultant, testified that this substitution of

experience for d egree requirements should also carry through to

the " Necessary Special Requirements " portion of the job

description , although that portion of the qualifications was

actually handled by the hiring department rather than Human

R esources .

62 . Petitioner f urther assert ed that the October 6, 2011 ,

Eligibility Report provided by Respondent did not include

Mr. Baker ' s name because he was deemed not eligible , and that he

should therefore never have been interviewed. However, there

was no evidence that this was the reason his name was missing.

To the contrary, Ms . Shannon Roberts , a Human Resources Program

Coordinator, testified that Mr. Baker ' s name was on the earlier

Eligibility Report prepared prior to the initial interviews, as

was corroborated through docu mentary evidence, and that

Mr. Baker remained eligible when the position was re - advertised.

His name did not appear on the later list because he did not re -

apply or affirmatively indicate that he wished to be

reconsidered. Any irregularity in the Eligibi lity Reports was

not evidence of discriminat ion against Petitioner .

63 . Finally, m uch of Petitioner ' s argument center ed around

his contention that Respondent relied upon newspaper accounts or

outright rumors , which he maintained were erroneous, indi cating

that he had been guilty of misconduct or improper management as

the Building Official for Wakulla County, the position from

which he had been terminated .

64 . Petitioner himself brought up the subject of his

termination from Wakulla County in the interview committees,

defending his actions , so it is clear that the members of the

committees, including Ms. Jumonville and Mr. Townsend , had at

least some awareness of that termination .

65 . However, a ssuming that Petitioner ' s termination from

Wakulla C ounty was completely unjustified, and further that

members of the interview committee s and hiring officials

wrongfully assumed the accusations against him were true, and

still further that they based their decision in whole or in part

upon that erroneous b elief, this would still not constitute any

evidence of illegal discrimination. In fact, conclusive proof

that Respondent ' s decision not to hire Petitioner was based on

a n erroneous belief that he was guilty of improper conduct or

poor management w ould not have provide d any proof of racial

discrimination, but to the contrary, would have provided a n on -

discriminatory basis for Respondent ' s decision.

66 . Petitioner did demonstrate that he was well qualified

for the position of Building Official, and a diffe rent decision -

maker might well have come to a different conclusion in filling

the position. Respondent ' s assertions that a poor interview and

concern with Petitioner ' s communication skills were the actual

reasons that he was not selected w ere plausible, h owever, and

there was no evidence that the true motive in the hiring

decision was actually discrimination. The decision not to hire

Petitioner might have been wrong, or unfair, the product of

petty politics, or based upon mistaken facts about Petitioner ' s

prior employment in Wakulla County, but there was no evidence

that Respondent ' s decision had anything to do with Petitioner ' s

race.

67 . The same conclusion mu st be reached with regard to the

charge that Respondent discriminated against Petitioner on the

basis of race by failing to interview him for the Facilities

Manager position. As to that complaint, Petitioner failed to

prove a prima facie case of discrimination . Assuming that a

failure to interview constitutes an adverse employment action,

and that Petitioner was qualified for the job, no evidence as to

the race of those who were interviewed was introduced.

68 . Even assuming that Petitioner had proved a prima facie

case of discrimination on the basis of race with respect to the

Facilities Manager position, Respondent provided evidence of a

legitimate , non - discriminatory reason for not interviewing

Petitioner through the testimony of Ms. Barber. She testi fied

that she declined to interview him due to his lack of direct

experience in facility manag ement as well as the fact that she

believed at the time that he had been terminated from his

employment in Wakulla County for failure to properly manage

personnel. Petitioner offered no evidence to suggest that these

reasons were simply a pretext for unla wful discrimination.

6 9 . The Florida Civil Rights Act is not concerned with

whether an employment decision is fair or reas onable, but only

with whether it was motivated by unlawful animus. As stated in

Nix v. WLCY Radio/Rahall Comm unications , 738 F.2d 1181, 1187

(11th Cir. 1984), " [t] he employer may fire an employee for a

good reason, a bad reason, a reason based on erroneous facts, or

for no reason at all, as long as its action is not for a

discriminatory reason. "

A ge Discrimination Clai ms

70 . The Flo rida Civil Rights Act of 1992 also prohibits

age discrimination. Federal law prohibits age discrimination

through the Age Discrimination in Employment Act ( ADEA ) .

29 U.S.C. § 623 . Federal case law interpreting the ADEA is

cited in age discrimination cases arising under the F lorida law.

Brown Dist . Co. of W. Palm Beach v. Marcell , 890 So. 2d 1227

(Fla. 4th DCA 2005).

71 . The " shifting burden " descri bed in McDonnell - Douglas

Corp. v. Green , supra , has also been applied in circumstantial

age discrimination cases . See Reeves v. Sanderson Plumbing

Prods., Inc. , 530 U.S. 133 (2000) ; City of Hollyw oo d v. Hogan ,

986 So. 2d 634 (Fla. 4th DCA 2008) . Petition er mus t first make

a prima facie showing of discriminatory treatment. He must

prove : 1) Petitioner is a member of a protected class;

2) Pet i tio n er is otherwise qualified for the position sought;

3) Petitioner was rejected for the position; and 4 ) the position

was filled by a worker who was of a different age than

Petitioner .

72 . Assuming Petitioner demonstrated a prima facie case of

age discrimination in Respondent ' s selection of the new Building

Official , 3/ Respondent articulated a legitimate, non -

discriminatory reason for not offering the position to

Petitioner.

73 . Respondent presented credible evidence that Petitioner

did not do well in his interviews for the position and that

there were concerns about his ability to represent Responden t in

various settings because of his communication skills.

Petitioner offered no evidence to suggest that these reasons

were simply a pretext for unlawful age discrimination.

74 . Again, the same conclusion mu st be reached with regard

to the charge tha t Respondent ' s decision not to interview

Petitioner for the Facilities Manager position constituted age

discrimination. As to that charge, Petitioner failed to prove a

prima facie case, offering no evidence as to the age of those

who were interviewed .

7 5 . Even assuming that Petitioner had proved a prima facie

case of age discrimination with respect to the Facilities

Manager position, Respondent ' s evidence that he was not

interviewed because of his lack of facility management

experience and because of Re spondent ' s belief that he had been

terminated from his employment in Wakulla County for failure to

properly manage personnel constituted a legitimate non -

discriminatory reason . There was no evidence that these reasons

were simply a pretext for unlawful ag e discrimination.

76 . Respondent ' s actions in each situation may have been

poor business decisions , or may have been based on a complete

misunderstanding of the facts, but th at would not constitute

race or age discrimination.

77 . The quality of Respond ent ' s decision - making is not at

issue. As noted in Chapman v. AI Transport , 229 F.3d 1012, 1030

(11th Cir. 2000), the legal system does " not sit as a super -

personnel department that reexamines an entity ' s business

decisions. No matter how medieval a firm ' s practices, no matter

how high - handed its decisional process, no matter how mistaken

the firm ' s managers, the ADEA does not interfere. Rather our

inquiry is limited to whether the employer gave an honest

explanation of its behavior. " (Citations omitted .)

78 . As the Supreme Court noted in Hazen Paper Co. v.

Biggins , 507 U.S. 604, 610 (1993), when a Petitioner alleges

disparate treatment, " liability depends on whether the protected

trait (under the ADEA , age) actually motivated the employer ' s

decision . " That is, Petitioner ' s race or age must have actually

played a role in Respondent ' s decision - making process and had a

determinative influence on the outcome. Id . While there is

evidence that beliefs about Petitioner ' s termination in Wakulla

County inf luenced Respondent ' s determinations , t here is simply

no evidence that race or age discrimination played any role in

Respondent ' s decision s not to hire or interview Petitioner.

RECOMMENDAT ION

Upon consideration of the above findings of fact and

conclusions of law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order d ismissing Petitioner ' s complaint.

DONE AND ENTERED this 2 9 th day of A u gust , 2012 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 9 th day of A u gust , 2012.

ENDNOTE S

1/ All citations to statutes and rules are to those in effect at

the time the alleged discrimination occurred in 2011, except as

otherwise noted.

2 / The " Selection Process Input " report submitted into evidence

which was prepared by the applicant screening committee does

note under Mr. Baker ' s " Strengths/Weaknesses " that he does not

meet the educational requirements or the special requir ements,

but it is clear in context that th ese annotation s w ere made

without regard to the years of experience that could

appropriately be substituted. Many of the 37 candidates, all of

whom the Human Resources Department had submitted as qualified ,

had si milar annotations. In fact, Petitioner ' s own annotation

regarding " Strengths/Weaknesses " provided " Does not meet the

educational requirements , " but , as found above, he was

nonetheless qualified for the position.

3/ Although no direct evidence of Mr. Ba ker ' s age was offered

into evidence, based upon his high school graduation date in his

application it could reasonably be concluded that he was about

ten years younger than Mr. Council , as discussed earlier .

Respondent acknowledged at hearing that Petitio ner proved a

prima facie case of discrimination and sought to show that its

decision not to hire was based upon non - discriminatory reasons.

COPIES FURNISHED:

Luther E. Council, Jr.

1242 Wakulla Arran Road

Crawfordville, Florida 32327

Hetal H. Desai, Esquire

Linda R. Hudson, Esquire

City of Tallahassee

300 South Adams Street, Box A - 5

Tallahassee, Florida 32301

[e-mail]

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

[e-mail]

Lawrence F. Kranert, Jr., Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

[e-mail]

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.