12-000413 Leu Freycinet vs. St. Johns River Water Management Status: Closed Recommended Order on Friday, June 22, 2012.

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

Case No. 12-0413

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

LEU FREYCINET, ) )

)

Petitioner, )

vs. )

)

St. JOHNS RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

On April 20, 2012, a duly-noticed hearing was held in

Ocala, Florida, before F. Scott Boyd, an Administrative Law

Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brandon Lamour Freycinet

Qualified Representative

254-10 Northern Boulevard, Suite 204

Little Neck, New York 11362

For Respondent: Michael Harrison Bowling, Esquire

Bell and Roper, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

STATEMENT OF THE ISSUE

The issue is whether the Respondent committed an unlawful

employment practice under section 760.10, Florida Statutes

(2011), by discriminating against Petitioner on the basis of

race, color, sex, or national origin, and if so, what remedy

should be ordered.

PRELIMINARY STATEMENT

On June 23, 2011, Petitioner filed a complaint with the

Florida Human Relations Commission (Commission), alleging that

St. Johns River Water Management District had discriminated

against him based upon his race, color, sex and national origin.

On December 16, 2011, the Commission issued a Notice of

Determination of No Cause, and on January 19, 2012, Petitioner

filed a Petition for Relief. On January 26, 2012, the matter

was referred to the Division of Administrative Hearings for

assignment of an administrative law judge.

The case was noticed for hearing on April 20, 2012, in

Palatka, Florida. Petitioner testified and offered four

exhibits, which were admitted without objection. Respondent

presented the testimony of five witnesses and offered 17

exhibits, which were admitted without objection. The Transcript

of the proceedings was filed with the Division on May 24, 2012.

Respondent filed a Proposed Recommended Order on June 5, 2012,

which was considered.

FINDINGS OF FACT

1. St. Johns River Water Management District (District) is

a regional agency of the State of Florida responsible for

managing water resources. The District employs about 600

employees.

2. Mr. Leu Freycinet is a 46-year-old black African-

American male of Haitian descent. He served in the United

States Marine Corps for over ten years, where he served as a

systems analyst, personnel administration chief, and a legal

chief. He was engaged in combat in Somalia. While in the

Corps, he received his bachelor’s degree in Management in 1998

and his master’s degree in Education in 2001. Mr. Freycinet

separated from the Marine Corps in 2001 with an 80 percent

disability due to various injuries.

3. Moving to Florida from California, he became an Adjunct

Instructor teaching business administration systems, torts, and

database systems at the City College of Casselberry.

4. Mr. Freycinet was hired in January 2002, as a Data

Management Supervisor in the Permit Data Services (PDS) Division

of the St. Johns River Water Management District. At this time

PDS had its main Service Center at the District’s headquarters

in Palatka, Florida, and three remote Service Centers located in

Altamonte Springs, Jacksonville, and Palm Bay.

5. Mr. Freycinet was placed in charge of the satellite

office in Altamonte Springs, at pay grade 22. He directly

supervised four or five Data Management Specialists. He was

responsible for noticing, permit processing, compliance, and

maintaining system integrity. He was responsible for every

facet of data management and the permitting process except for

individual permits for large entities, which were issued from

the District headquarters.

6. In 2006, Mr. Freycinet received a written reprimand for

an incident involving his management of his subordinates in

Altamonte Springs. Mr. Freycinet never signed the reprimand and

did not agree with the reprimand.

7. In his Annual Performance Evaluation for the period of

February 3, 2006, to February 2, 2007, Mr. Freycinet’s overall

performance was listed as “Rating 2, Generally Meets Performance

Standards.” This is the middle of the three possible ratings,

Generally Does Not Meet Performance Standards.” This rating

reflected high achievement in some elements such as “Customer

Service” and “Quality and Technical Oversight” while showing

shortcomings in some elements involving communication and

management. The following comments were made under the

“Communications” element: “Improvements are still needed in

communications with direct reports. There were some

communication issues this past period resulting in the distress

of PDS staff in Altamonte service center. I look forward to

achieving a better line of communication between Leu and direct

reports in the upcoming period. I also look forward to Leu’s

adherence to instruction provided by Division Director.” Under

team have done well in meeting load requirements for the group;

however, unresolved personality conflicts and leadership issues

need to be addressed. His group continues to provide excellent

customer service through the use of senior volunteers in the PDS

“I look forward to improved communication with direct reports to

ensure timely and professional discussions of issues before they

are out-of-hand.”

8. Mr. Freycinet’s performance evaluation for the period

February 2, 2007, through February 1, 2008, was similar. He

again received an overall evaluation of “Rating 2, Generally

element stated, “Leu is very articulate and possesses positive

communication skills, both written and verbal. As outlined in

last year’s review, Leu should continue improvements in using

his communications skills and judgment when dealing with other

staff and upper management. Additionally, Leu can enhance his

performance within the division through better adherence to

instructions provided by management.” Under the “Personnel

Management” element, it was noted, “Leu generally meets

expectations mentoring and developing staff. He has identified

and supported training goals for his staff. Leu could improve

in this area through a more consistent application of these

skills for all staff equally. In the future greater emphasis

will be placed on a formalized staff training and development

element stated, “Leu generally meets our expectations. He takes

initiative to improve existing processes while fostering an

enthusiastic customer service climate in the Altamonte Service

Center. His staff consistently performs at a high level and

meets established timeframes. While Leu’s initiative is

appreciated, his excessive exuberance sometimes causes him to

exceed his span of control thus impacting consistent performance

within the division.”

9. On September 28, 2007, the name of the Permit Data

Services Division was changed to the Regulatory Information

Management Division.

10. In January 2008, the District eliminated the Data

Management Supervisor position at the Altamonte Springs service

center. Mr. Freycinet chose to take a lateral move, into a

position that was also pay grade 22, to become a Senior

Regulatory Information Management (RIM) Specialist at District

headquarters in Palatka rather than leave employment with the

District. In this new position he was a team leader of three or

four team members, but was no longer in a supervisory position.

As a Senior RIM Specialist he primarily worked in electronic

mail, processing, and compliance. He worked on both Consumptive

Use Permits and Environmental Resource Permits.

11. On February 1, 2008, Mr. Freycinet received a merit

increase in his pay in his position as Senior RIM Specialist,

remaining a pay grade 22.

12. In 2008, Mr. Freycinet applied for the Processing and

Compliance Support Manager’s position. He was not given the

job. Ms. Robin Hudson, the Human Resources Director for

Respondent, testified that she remembered that a comment had

been made that Mr. Freycinet’s past work history as a supervisor

was deficient in some respects.

13. In 2010, Mr. Freycinet applied for a position as RIM

Manager, but that job was given to Ms. Maggie Daniels. A few

months later, Mr. Freycinet also applied for the District Clerk

position, which he believed was either pay grade 25 or 27. This

was a job similar to the Regulatory Support positions, but at

the District level, maintaining data and files. Mr. Freycinet

was not chosen for the Clerk position.

14. Mr. Freycinet was a good employee for the District who

performed satisfactorily and met expectations. He had good

education credentials, long experience at the District,

excellent technical knowledge, and supervisory experience,

although not all of it positive.

15. Mr. Mike Register is the Director of the Department of

Regulatory Services, which is responsible for all of the

regulatory programs of the District, including consumptive use

permits, environmental resource permits, and the administrative

processing of those permits. He is responsible for the Division

of Regulatory Information Management, 1/ among others.

16. Mr. Register was concerned that the RIM Division was

not functioning well. He believed there was a lack of

confidence in the Division’s work product both inside and

outside of the District. He believed that an “adversarial”

attitude had developed between the Division and the regulatory

staff of the District. He believed there was a lot of

inefficiency, a lack of outreach, and an unhelpful attitude in

the Division. He wanted to increase the number of applications

for permits that were filed electronically, because electronic

processing is much more efficient.

17. Mr. Register decided that organizational changes were

necessary to address these concerns, and he tasked Mr. Victor

Castro, the new Director of the RIM Division, to come up with a

plan to do this.

18. In response, Mr. Castro talked generally with the

Division employees to find out what each of them did, and how

that work matched up with what the Division needed to be doing.

He talked with Ms. Daniels, who by this time had been promoted

to Assistant Director of the Division, and with other divisions

to understand the needs that they had. He then came up with a

new organizational chart that contained positions and

descriptions for the work that needed to be done, without

consideration of any particular individuals.

19. Mr. Castro next worked with the Human Resources

Department, which helped him determine what level the new

positions should be and conducted a market analysis for the

appropriate pay grade for each position. The pay grades for

each position in the new structure were recommendations from

Human Resources. The recommended structure was then presented

to Mr. Register.

20. Subsequently, Mr. Castro considered which people

currently employed in the RIM Division would be best suited for

each position within the new structure, beginning with the

manager positions, and returned to Mr. Register with that

staffing plan. The plan did not include any new people from

outside the Division, and did not include the termination of any

individuals working at the Division. However, under the

reorganization plan, some people would be promoted, and others

would be demoted. Some changes involved only pay grade changes,

adjusting the applicable pay range and the maximum pay ceiling,

while other changes actually increased or reduced the current

salaries of those involved.

21. Mr. Castro did not interview the Division employees

for specific positions in the new structure before preparing the

new staffing plan. He based the staffing plan on his general

experience during the short time he had been Division Director

and his discussions with Mr. Register, Ms. Daniels, and others

who had been there longer and were familiar with the staff.

22. Mr. Castro determined that Ms. Shannon Barican should

be placed as the manager for the Electronic Processing Group.

23. Ms. Barican does not have a college degree, and has

no formal supervisory experience. She began working for the

St. Johns River Water Management District on April 9, 1990. She

began as a Records Technician at pay grade 10 in what was then

the Records Division, filing and dealing with information

requests. She prepared files for microfilm.

24. Ms. Barican later rode with field representatives,

issuing citations. Sill later, she moved to permitting prior to

the time that it was divided into groups, where she worked with

all types of applications. She gained experience with technical

staff reports and compliance issues. She later prepared

requests for additional information and sent them to applicants,

a job now performed by reviewers. In recent years she has

worked with noticing.

25. Mr. Register has known Ms. Barican at the District for

about 20 years and has had the opportunity to directly observe

her performance. Ms. Barican has an outstanding ability to work

as a team leader on projects. She is a very good communicator,

both with her team and with customers. She is very outgoing

with her outreach in trying to find new ways to do the job

better.

26. Ms. Barican received an overall assessment of “3,

Exceeds Performance Expectations” on her Annual Performance

Evaluation for the period February 3, 2006, to February 2, 2007.

27. In February, 2007, Ms. Barican was recommended for a

cash bonus award of $1,000.00.

28. On July 6, 2007, Ms. Barican’s pay grade was increased

from a pay grade 14 to a pay grade 16. This action did not

include any change in her salary, but permitted her to receive

pay raises in the future, since she had reached the maximum

level of pay allowed for pay grade 14.

29. Ms. Barican received an overall assessment of “3,

Exceeds Performance Expectations” on her Annual Performance

Evaluation for the period February 2, 2007, to February 1, 2008.

30. Ms. Barican received a merit pay increase in her

position of Data Management Specialist II on February 1, 2008.

31. Ms. Barican was recommended for a cash bonus award of

$1,500.00 in February 2008.

32. On February 28, 2008, Ms. Barican’s position was

reclassified from a Data Management Specialist II to a

Regulatory Information Management Specialist II. This was a

name change following the Division’s name change a few months

before, and involved no change in pay.

33. Ms. Barican received an overall assessment of “3,

Exceeds Performance Expectations” on her Annual Performance

Evaluation for the period January 31, 2008, to January 30, 2009.

It was noted under the “Exceptional Development Criteria”

element that, “Shannon has done very well taking initiative and

demonstrating leadership within the group. Shannon has great

potential. Over the next year I am encouraging Shannon to take

a more active role in developing other staff and assisting with

the process documentation and improvement efforts.”

34. Ms. Barican received a merit pay increase in her

position of Regulatory Information Management Specialist II on

January 30, 2009.

35. Ms. Barican received an overall assessment of “3,

Exceeds Performance Expectations” on her Annual Performance

Evaluation for the period February 1, 2009, to September 30,

2009.

36. Ms. Barican was recommended for a cash bonus award of

$1,000.00 in September 2009.

37. Ms. Barican received an overall assessment of “3,

Exceeds Performance Expectations” on her Annual Performance

Evaluation for the period October 1, 2009, to September 30,

2010.

38. In 2010, Ms. Barican was nominated as Employee of the

Year for the District.

39. At the time of the reorganization, Ms. Barican was a

Regulatory Information Management Specialist II, with primary

responsibility over noticing. She had previously filled in for

her lead, Ms. Minor, when Ms. Minor was on vacation and when she

was out for surgery for a couple of months.

40. Mr. Castro knew that Ms. Barican had often worked with

other departments of the District and was excellent in

coordinating work with others and in providing customer service.

He believed that Ms. Barican could use those skills to increase

electronic filing to improve the efficiency of the Division. He

testified that he considered her the best candidate for the job

by far.

41. Mr. Castro testified that on one occasion, when there

was a meeting discussing better ways to improve the processing

of letter modifications (a type of permit application) that

Ms. Barican had several immediate suggestions even though that

was not her area of expertise. She also volunteered to

coordinate a solution with others and come back with a proposal

that everyone agreed to. In a couple of weeks she came back

with a new process completely ready to implement, with

everything well documented. The new procedures were

successfully implemented and everyone was happy to follow them.

In developing the proposal, Ms. Barican had worked with

Mr. Freycinet, who was very helpful to her. Mr. Castro said

that Ms. Barican’s success with this project was one of the

deciding factors for him in choosing her for the management

position. He did not review Ms. Barican’s performance reports

before making his decision to promote her.

42. Mr. Castro also considered Mr. Freycinet and Ms. Lynn

Minor for manager of the Electronic Processing Group. He

testified he did not offer Ms. Minor the position. He did not

feel that Mr. Freycinet was a good fit for the job because of

concern with Mr. Freycinet’s ability to work with others. He

was concerned about how Mr. Freycinet coordinated work.

Mr. Castro believed that Mr. Freycinet’s demeanor toward his

coworkers was not ideal for a manager. Mr. Castro noted as an

illustration that Mr. Freycinet would be talking with

Mr. Castro, and if a question came up that needed to be

answered, Mr. Freycinet would just scream over the top of the

cubicle and tell the person to come immediately, rather than

excusing himself to go get the proper person to answer the

question. Mr. Castro did not review Mr. Freycinet’s performance

reports before deciding Mr. Freycinet would not be a good fit.

He did discuss Mr. Freycinet with Ms. Daniels, who was aware of

Mr. Freycinet’s performance reports, and with Mr. Register.

43. Mr. Register believed that Ms. Barican possessed the

critical skills he deemed necessary for the manager’s role. He

believed that she had the ability to work well with others, to

outreach and communicate well both internally and with the

public, and would have the skills to coordinate work within her

group and coordinate with other groups. He also believed that

she had a good understanding of both the technology involved and

where he wanted to take the Division.

44. In contrast, Mr. Register testified that

Mr. Freycinet’s reputation as a worker and employee was that he

was abrasive, that he tended to be abrupt and a little rough

when talking to people. Mr. Register testified that based upon

his personal observation he did not believe Mr. Freycinet was

very efficient with his work.

45. Mr. Castro discussed his choice of Ms. Barican to be

the manager of the Electronic Processing Group with Ms. Daniels,

who, based upon her experience with the people in the Division,

agreed that Ms. Barican would be the best choice. Mr. Castro

also discussed his choice with other groups such as the

Information Technology Department, who also agreed with the

selection of Ms. Barican. Mr. Castro testified that every time

he asked anyone what they thought about Ms. Barican, that he

always received positive remarks.

46. A college education and some supervisory experience

were listed among the job qualifications for the management

positions. District policy provided a process whereby other

skills and experience could be substituted for such

qualifications, and this process was followed in the case of

Ms. Barican. On May 6, 2011, Mr. Castro requested Mr. David

Fisk, Assistant Executive Director of the District, to approve

Ms. Barican’s 20 years of experience at the Division as a

substitute for the college education and one year of supervisory

experience necessary to qualify as a Regulatory Support Manager

over the Electronic Processing Group. Ms. Barican was qualified

for the manager position.

47. As the new structure was the result of reorganization,

the allocation of duties into reclassified positions did not

need to be advertised. The reclassified positions would be

filled solely from existing employees and no new employees were

being recruited.

48. Prior to the reorganization, the Division of

Regulatory Information Management consisted of between 30 and 35

people, of whom only Mr. Freycinet and the Division Director,

Mr. Castro, were male. Mr. Freycinet was the only black male.

The Division had four filled management positions: the Division

Director; an Assistant Division Director, Ms. Daniels; a Project

Manager, Ms. Mary McKinney, serving at pay grade 26 and

reporting to Ms. Daniels; and a RIM Manager, Ellie Miller,

serving at pay grade 25 and also reporting to Ms. Daniels.

49. The subunits of the Division were headed by team

leaders, which were not supervisory positions. Ms. Minor was

the team leader over the “Applications” group and Mr. Freycinet

was the team leader over the “Compliance” group. Ms. Minor and

Mr. Freycinet were each Senior RIM Specialists, at pay grade 22.

There were three other Senior RIM Specialists in the Division,

Ms. Joann Fuqua, Ms. Nancy Tatum, and Ms. Linda Oggero, all

serving at pay grade 22, but not serving as team leaders.

Ms. Barican was a RIM Specialist II, pay grade 16, responsible

primarily for permit noticing, and reporting to Ms. Minor in the

“Applications” subunit.

50. Under the reorganized structure, three manager

positions were to report to Ms. Daniels as Assistant Director of

the Division of Regulatory Support. Ms. Barican was made the

manager of the Electronic Processing Group, Ms. McKinney was

made the manager for the Permits Group, and Ms. Miller was made

the manager for the Quality Assurance Group. Ms. Sara Mullis,

the Electronic Content Management Coordinator, also was moved to

report directly to Ms. Daniels, although she was not a manager.

51. As part of the reorganization plan, Ms. Barican was to

be upgraded from pay grade 16 to pay grade 25. She would

receive a salary increase of $9,131.20 for a total annual salary

of $49,462.40, representing a 22.64% increase. It is uncommon

at the District to have a promotion from pay grade 16 directly

to pay grade 25. Ms. McKinney’s pay grade would be downgraded

from pay grade 26 to pay grade 25, but her annual salary of

$69,971.20 would be unchanged. Ms. Miller would remain at pay

grade 25, with no change in her $60,340.80 annual salary.

52. The new managers were not the only ones to be

subjected to personnel actions. Ms. Mullis was to be upgraded

from pay grade 16 to pay grade 20. She would receive a salary

increase in the amount of $8,340.80, bringing her salary to

$29,099.20 annually, a 28.66% increase. Mr. Freycinet was to be

downgraded from pay grade 22 to pay grade 20, but his annual

salary of $53,747.20 would remain unchanged. In addition to

Mr. Freycinet, Ms. Minor, Ms. Joann Fuqua, Ms. Nancy Tatum, and

Ms. Vicki Young were all to be downgraded from pay grade 22 to

pay grade 20. The salary of Ms. Minor at $56,014.40 annually,

and the salary of Ms. Fuqua at $51,469.20 annually would remain

unchanged. The salary of Ms. Tatum was to be reduced by

$291.20, bringing her salary to $56,160.00, a 0.52% reduction.

The salary of Ms. Young was to be reduced by $4,430.40, bringing

her salary to $56,160.00, a 7.31% reduction. Ms. Linda Oggero

would be downgraded from pay grade 22 to pay grade 18, with no

change in her $42,494.40 annual salary. Three other employees,

Ms. Lisette Bonilla, Ms. Marianella Pacheco, and Ms. Carrie

Mizell, were to receive salary increases of about 5%, without

any change in their pay grade.

53. On the afternoon of Monday, May 9, 2011, a mandatory

meeting was held for all Division personnel. The meeting was

conducted by Mr. Castro and Ms. Daniels to explain and describe

the “redeployment” of the Division of Regulatory Information

Management personnel into the reorganized unit to be known as

the “Division of Regulatory Support” which was to be effective

on May 20, 2011. The meeting was only announced a couple of

hours before it took place.

54. Mr. Freycinet felt humiliated, degraded, and

embarrassed when he learned that Ms. Barican had been promoted

to be his supervisor. He believed the new management position

was essentially in charge of exactly the things that his subunit

had been doing before the reorganization when he was its team

leader, and that he was the best qualified person for the new

position. Although his salary had not been cut, the demotion to

a lower pay grade could eventually have the effect of limiting

his ability to get raises, once he achieved the maximum pay for

that grade. Mr. Freycinet was substantially affected by the

reorganization and the District’s decisions not to promote him

to the new management position and to reduce his pay grade.

55. In his new position Mr. Freycinet was expected to be

involved with input and management of complex hydrology data,

with which his team had never worked in the past. He believed

it required some knowledge of the methodology of hydrology, for

which he had not been trained, and that he was not being

compensated fairly for performing this new function.

56. On May 13, 20, 2011, Mr. Freycinet filed an affidavit

with the Florida Commission on Human Relations alleging

discrimination on the basis of race, color, sex, and national

origin. The petition was amended on June 23, 2011, through the

filing of the FCHR Charge Form. Mr. Freycinet alleged that he

had been denied a promotion, demoted, and subjected to different

terms and conditions of employment.

57. Mr. Freycinet’s employment with the District ended on

July 14, 2011.

58. On December 16, 2011, the Florida Commission on Human

Relations determined that there was no reasonable cause to

believe an unemployment practice occurred. On January 19, 2012,

Mr. Freycinet filed a Petition for Relief against Respondent for

an unlawful employment practice, which was referred to the

Division of Administrative Hearings on January 26, 2012.

CONCLUSIONS OF LAW

59. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in this

case under sections 120.569 and 120.57(1), Florida Statutes.

60. The Florida Civil Rights Act, sections 760.01–760.11

and 509.092, Florida Statutes (2010), 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 used 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).

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

may file a complaint with the Commission within 365 days of the

alleged violation. If the Commission determines that there is

not reasonable cause to believe that a violation has occurred, a

request for an administrative hearing may be made within 35 days

of the date of the Commission’s determination. § 760.11(7),

Fla. Stat. Petitioner timely filed his affidavit, which met all

requirements for a complaint, and following the Commission's

initial determination, timely filed his Petition for Relief

requesting this hearing.

62. Respondent St. Johns River Water Management District

is an employer as that term is defined in section 760.02(7).

63. Petitioner has the burden to prove 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 778 (Fla. 1st DCA 1981).

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

employment practice for an employer 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."

65. Discrimination can be established through direct,

circumstantial, or statistical evidence. U. S. Postal Serv. Bd.

of Gov'nrs v. Aikens , 460 U.S. 711, 714 (1983); Schoenfeld v.

Babbitt , 168 F.3d 1257, 1266 (11th Cir. 1999). Direct evidence

of discrimination is evidence that, if believed, establishes the

existence of discriminatory intent behind an employment decision

without inference or presumption. Wilson v. B/E Aero., Inc. ,

376 F.3d 1079, 1086 (11th Cir. 2004) ; Maynard v. Bd. of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003).

66. Petitioner sought to prove discrimination through

circumstantial evidence of disparate treatment. In McDonnell-

Douglas Corp. v. Green , 411 U.S. 792 (1973), the Supreme Court

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).

67. 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 has the burden of articulating 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 shifts back to Petitioner to demonstrate

that the offered reason is merely a pretext for 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.

68. Petitioner first alleges that he was subjected to

different terms and conditions of employment based on the fact

that Ms. Minor was first offered the management position, and he

was not.

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

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

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

treated similarly-situated employees 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).

70. An adverse employment action exists if plaintiff

undergoes a "materially adverse change" in the terms and

conditions of employment. Galabya v. New York City Bd. of

Educ. , 202 F.3d 636, 640 (2d Cir. 2000). A materially adverse

change might be indicated by a termination of employment, a

demotion evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits, significantly

diminished material responsibilities, or other indices unique to

a particular situation. Crady v. Liberty Nat'l Bank & Trust

Co. , 993 F.2d 132, 136 (7th Cir. 1993).

71. No finding was made that Ms. Minor was ever offered

the management position. In fact, Mr. Castro testified that he

did not offer the job to Ms. Minor. While there was some

hearsay testimony which suggested that Ms. Minor had been

offered the job, no competent evidence was introduced upon which

such a finding could be made.

72. Additionally, there was no evidence to establish that

initially offering Ms. Minor the new management position while

not offering it to Petitioner would itself have been a

materially adverse change in the terms and conditions of

Petitioner’s employment.

73. With respect to the alleged offering of the managerial

position to Ms. Minor, Petitioner failed to prove either that he

was subject to an adverse employment action or that Respondent

treated similarly situated employees who were not members of the

protected class more favorably than they treated him.

74. Petitioner also alleges that he was discriminated

against by being demoted. In order to establish a prima facie

case, Petitioner again must prove: (1) he is a member of a

protected class; (2) he was subjected to an adverse employment

action; (3) his employer treated similarly-situated employees

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

qualified for the job. Hanford v. GEO Group, Inc. , 345 Fed.

Appx. 399, 404 (11th Cir. 2009); Burke-Fowler v. Orange Cnty.,

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

75. Petitioner is a black African-American male of Haitian

descent, and is a member of a protected class.

76. Assuming demotion without a pay reduction is an

adverse employment action, Petitioner still offered no evidence

of the third element. In fact, the only evidence is to the

contrary, that is, that all other similarly-situated personnel

were also demoted. All were white women, and in fact some

actually were subjected to salary reductions, while petitioner

was not.

77. Petitioner failed to prove a prima facie case of

discrimination with respect to his demotion.

78. Finally, Petitioner alleges that he was discriminated

against when he was not promoted. In order to establish a prima

facie case, Petitioner must prove: (1) he is a member of a

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

new position; (3) despite his qualifications, he was not

selected; and (4) the position was filled with a person who was

not a member of the protected class. Denney v. City of Albany ,

247 F.3d 1172, 1183 (11th Cir. 2001); Lee v. GTE Fla., Inc. , 226

F.3d 1249, 1253 (11th Cir. 2000).

79. Petitioner is a member of a protected class.

80. Petitioner was qualified for the manager position.

Petitioner’s college degrees, long experience, and service as a

Team Leader over a group performing substantially the same

duties as were to be performed under the newly created

Electronic Processing Group made him qualified for the position.

He was not a perfect candidate, exhibiting some personality

traits that might not be desirable for such a position, and with

a marred history in his prior supervisory role with the

District, but these flaws were not enough to disqualify him.

While Petitioner did not “apply” for the position, neither did

Ms. Barican. Under the circumstances of the reorganization, the

position was never open for any “applications.”

81. It is undisputed that Petitioner was considered, but

not selected, for the management position, and that Ms. Barican,

a white female, was given the position.

82. While it might not be necessary to decide, Petitioner

did demonstrate a prima facie case of discrimination on the

basis of race, color, gender, or national origin. USPS Bd. of

Governors v. Aikens , 460 U.S. 711, 713-714 (1983)(no purpose

served in considering whether or not a prima facie case was made

out when case was fully tried on the merits). The relevant

inquiry is the ultimate, factual issue of discrimination. Green

v. School Bd. , 25 F.3d 974, 978 (11th Cir. 1994). However, it

is helpful to follow the McDonnell-Douglas structure and next

consider the factors Respondent relied upon in making its

promotion selection.

83. Respondent articulated a legitimate non-discriminatory

reason for not promoting Petitioner into the management

position. Respondent met that burden of production with the

testimony of several witnesses indicating that Respondent

believed the most important qualification for the management

position was the ability to work with people, and that with

respect to that particular skill, Ms. Barican was superior to

Petitioner.

84. Petitioner offered no evidence to suggest that

Respondent's reason for not moving Petitioner was simply a

pretext for unlawful discrimination. See Young v. Gen. Food

Corp. , 840 F.2d 825, 830 (11th Cir. 1988)("Once a legitimate,

nondiscriminatory reason for dismissal is put forth by the

employer, the burden returns to the plaintiff to prove by

significant probative evidence that the proffered reason is a

pretext for discrimination.").

85. Even if it was determined that Petitioner was

objectively more qualified for the manager’s position than

Ms. Barican, that would not meet Petitioner’s burden to show

pretext. Petitioner must do more than show that the employment

decision was mistaken; he must show that it was motivated by

unlawful animus. Lee v. GTE Fla., Inc. , 226 F.3d 1249, 1253

(11th Cir. Fla. 2000). A petitioner does not establish that an

employer's proffered reason is pretextual merely by questioning

the wisdom of the employer's reasons, at least not where the

reason is one that might motivate a reasonable employer." Combs

v. Plantation Patterns , 106 F.3d 1519, 1543 (11th Cir. 1997),

cert . denied , sub nom ., Combs v. Meadowcraft Co. , 522 U.S. 1045

(1998).

86. The evidence showed that Petitioner had been the team

leader of the group responsible for the most of the duties to be

performed by the new Electronic Processing Group. He had

college degrees, had many years of experience, had met

expectations as an employee, and had been in supervisory

positions before. He received only a couple of hour’s notice of

the meeting at which the reorganization was announced, by which

time all of the personnel decisions had already been made.

Petitioner subsequently learned that he would not be promoted,

that his pay grade--though not his salary--would be reduced, and

that his new supervisor was someone from another group, formerly

with a pay grade below his.

87. Under these circumstances, Petitioner’s humiliation

and embarrassment might well be expected. However, Respondent

presented a plausible business reason for the decision to

promote Ms. Barican to the manager’s position. Correctly or

not, Respondent believed that while technically proficient,

Petitioner’s personality was not conducive to good management,

while Ms. Barican, though without college education or

supervisory experience, was better able to communicate with both

employees and outsiders to perform the leadership tasks they

valued for the position. There was no evidence that this reason

was pretextual. The decision to choose Ms. Barican rather than

Petitioner may have been wrong, or even unfair, but there was no

evidence that Respondent's decision not to promote Petitioner

had anything to do with his race, color, gender, or national

origin.

88. Similarly, Respondent's technique of drawing out a

table of organization on paper and then demoting long term

employees so they would fit neatly within the criteria dictated

by those little boxes might seem an approach completely at odds

with the professed desire for a management that worked well with

its employees. However, the evidence was clear that four white

females were subjected to exactly the same demotion as

Petitioner, and one was demoted still lower. Two of these women

received an actual salary cut as well. There was no evidence

that this technique was simply a pretext with respect to

Petitioner, or that Petitioner’s demotion had anything to do

with his race, color, gender, or national origin.

89. As stated in Chapman v. AI Transport , 229 F.3d 1012,

1030 (11th Cir. 2000) in a similar context, "[C]ourts do 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.” (quoting Elrod v. Sears,

Roebuck & Co. , 939 F.2d 1466, 1470 (11th Cir. 1991)).

RECOMMENDATION

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 dismissing Petitioner's complaint.

DONE AND ENTERED this 22nd day of June, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of June, 2012.

1/ The titles of these District subunits have since been

changed. The former Department of Regulatory Services is now

evidently the Division of Regulatory Services, while the former

Division of Regulatory Support is now the Bureau of Regulatory

Support. In light of the numerous other name changes which took

place during the events relevant to this case, the older names

are used throughout to avoid additional confusion.

COPIES FURNISHED:

Brandon Lamour Freycinet, Esquire

254-10 Northern Boulevard, Suite 204

Little Neck, New York 11362

[e-mail]

Michael Harrison Bowling, Esquire

Bell and Roper, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

[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., General Counsel

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.