13-000026 Michael Reed vs. At And T Mobility, Llc Status: Closed Recommended Order on Thursday, May 15, 2014.

Summary: Petitioner failed to prove that Respondent did not hire him based upon his age. Recommend dismissal of Petitioner's Petition for Relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL REED,

Petitioner,

vs. Case No. 13 - 0026

AT & T MOBILITY, LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

A formal hearing was conducted in this case on

September 10, 2013 , in Daytona Beach , Florida, before

Lawrence P. Stevenson, a duly - designated Administrative Law

Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David W. Glasser, Esquire

Law Off ice of David W. Glasser

116 Orange Avenue

Daytona Beach , Florida 3 2 114

For Respondent: Leticia D. Alfonso , Esquire

AT&T Legal Department

675 West Peachtree Street

Atlanta, Georgia 30308

STATEMENT OF THE ISSUE

The issue is whether Respondent , AT&T Mobility Services,

LLC (ÐAT&T Ñ) 1 / committed unlawful employment practice s contrary

to s ection 760.10, Florida Statutes (20 12 ) , 2 / by discriminating

against Petitioner b ased on h is age by failing to hire him as a

customer service representative in its Ocala Call Center .

PRELIMINARY ST ATEMENT

On or about June 28 , 2012 , Petitioner Michael Reed

( Ð Petitioner Ñ ) filed with the Florida Commission on Human

Relations ( Ð FCHR Ñ ) a Charge of Discrimination against AT&T .

Petitioner alleged that he had been discriminated against

pursuant to c hapter 760, Florida Statutes , and the Age

Discrimination in Employment Act of 1967, as amended, codified

at 29 U.S.C. § 621 through 29 U.S.C. § 634, as follows:

I am 60 years old. I applied for the

position of Customer Service Representative

with AT&T on or abou t April 23, 2012. After

submitting my resume I attended an online

teleconference with details about the job; I

was then asked to take a test at the Ocala

facility. I took and passed the test; I was

then asked to go to an interview and believe

that I did well. On or about May 4, 2012, I

received an email advising me that I had not

been selected for the position.

The May 4 th email received from AT&T

Staffing indicated that my interview did not

qualify me for this position.

I believe that I have been disc riminated

against on the basis of my age/60 [sic], in

violation of the Age Discrimination in

Employment Act of 1967, as amended.

The FCHR investigated Petitioner's Complaint. In a letter

dated December 5 , 2012 , the FCHR issued its determination that

ther e was no reasonable cause to believe that an unlawful

employment practice occurred .

On December 31 , 2012 , Petitioner timely filed a Petition

for Relief with the FCHR . On January 7, 2013 , the FCHR referred

the case to the Division of Administrative Hearing s ( Ð DOAH Ñ ) .

The case was originally scheduled for hearing on March 18, 2013 .

Disputes regarding the scope and content of discovery sought by

Petitioner necessitated two continuances. 3 / One continuance w as

granted. The hearing was ultimately held on Sep tember 10, 2013 .

At the outset of the hea ring, the parties stipulated to the

admission of Joint Exhibits B, C, D, E, L, M, R, X, Y, Z, AA,

and BB. Petitioner testified on his own behalf and offered the

testimony of Sheri Kerstetter, the AT&T sales and ser vice center

manager for the Ocala call center who interviewed Petitioner and

made the decision not to hire him. Petitioner ' s Exhibits A, F,

G, H, I, J, K, W, and CC were admitted into evidence.

Respondent presented the testimony of Eunice Robinson, the A T&T

area manager who supervises Ms. Kerstetter; Tina Garcia, a

staffing manager for AT&T; and Ms. Kerstetter. Respondent

offered no exhibits beyond the joint exhibits admitted at the

start of the hearing.

The two - volume T ranscript of the hearing was filed at the

Division of Administrative Hearings on October 7, 2013. By

order dated October 15, 2013, the undersigned granted the

partiesÓ Joint Motion for Extension of Time to File Post - Hearing

Recommended Orders, giving the parties until October 31, 2013 ,

to file proposed recommended orders. Both parties filed their

P roposed R ecommended O rders on October 31, 2013.

FINDINGS OF FACT

1. AT&T is an employer as that term is defined in

s ubs ection 760. 02(7) , Florida Statutes , and 29 U.S.C. § 630(b) .

2. Petitio ner is a white male who was 60 years old at the

time he applied and was rejected for a job at AT&T.

3. In April 2012, Petitioner applied for a Customer

Service Representative ( Ð CSRÑ) position with AT&T at its Ocala

call center. The CSR position is covere d by a collective

bargaining agreement between AT&T and Communication Workers of

America.

4. CSRs handle incoming customer calls for the variety of

products and services sold, provided , or serviced by AT&T . The

CSRÓs essential duty is to resolve customer complaints and then

transition the call into an attempt to sell the customer

additional products and services.

5. Petitioner submitted an application and resume. AT&TÓs

Ðresume builderÑ tool took PetitionerÓs submissions and

generated a document that se t forth PetitionerÓs education,

certifications, work experience, and job preferences.

6. Petitioner noted that he had many years of experience

with Pacific Bell between the early 1970s through 1989,

including six years as a customer service representati ve.

Petitioner has also owned his own small business telephone

system interconnect company for 25 years. Petitioner

believed that this experience made him an ideal candidate for

the AT&T CSR position.

7. Petitioner took and passed an initial prescreen in g test

for the CSR position . As a result, AT&T sent him an automated

email scheduling him to attend a group teleconference

presentation given by Tina Garcia, a staffing manager based in

California who was responsible for the Ocala call center.

8. Petitio ner attended the teleconference . Thirteen other

applicants were on the call. Ms. Garcia offered details about

the CSR position, including salary, training, hours, and the

status of the union. Ms. Garcia also explained the remainder of

the application pr ocess, including how to prepare for the

interview.

9. Petitioner testified that the applicants were not

really allowed to participate in the teleconference. He found

it unusual that Ms. Garcia stated that AT&T was only interested

in applicantsÓ job exper ience from the last five years. She

also stated that if an applicant were self - employed, AT&T would

consider his employment history only to the extent it could be

substantiated with federal tax documents.

10. Ms. Garcia testified that AT&T looks at only the last

five years of employment for purposes of setting pay according

to the union scale, but that AT&T is willing to consider all of

an applicantÓs work experience during the interview process.

The tendency is to focus on more recent experience during the

interview, and it is therefore up to the applicant to make sure

the interviewer is aware of all his relevant experience.

11 . Applicants still interested in the CSR position after

th e teleconference were scheduled to take an assessment at the

Ocala c al l c enter. Petitioner took the c all c enter assessment ,

which is a live test administered via computer at the Ocala call

center. Petitioner testified that the assessment covered

general aptitude, general knowledge, and situational customer

contact.

12 . P etitioner passed the assessment. Ms. Garcia then

reviewed PetitionerÓs application and determined that he met the

minimum qualifications for the CSR position. She contacted

Petitioner to schedule him for a job interview at the Ocala call

center.

13. Ms. Garcia sent Petitioner a form email that she sends

all applicants who are scheduled for interview. The email is

designed to assist applicants in preparation for their

interviews. Among the bullet points set out in the email were

the following:

* Go o n - line and Google Ð Behavioral

Interview Questions . Ñ By reviewing and

practicing your responses this [sic] will

help refresh details regarding situations

Ð you Ñ have handled. The Interviewing

Manager only wants to hear responses

regarding actual situations that you have

handled already.

* Tell a full story do not hesitate [sic]

to share all details on how you handled the

specific situation.

* Your application is only a guide ; your

responses will determine the outcome.

* Remember this is a Customer Ser vice and

Sales position (be prepared to Sale) [sic]

14. Petitioner testified that he went online and looked up

behavioral interview questions and practiced his responses to

them before going to the interview. He stated that the

materials consisted of qu estions about Ðsituational customer

thingsÑ such as how to sell a product and how to handle customer

complaints.

15. On May 2, 2012, Petitioner went to the Ocala call

center and was interviewed by H iring M anager Sheri Kerstetter.

Ms. Kerstetter used an A T&T - produced CSR ÐInterview GuideÑ to

conduct the interview. The guide set forth two segments to the

interview: a ÐKey Background ReviewÑ during which the applicant

discusses his work experience; and ÐPlanned Behavioral

Questions,Ñ in which the applicant is presented with the

opportunity, in response to specific questions, to describe his

methods and experience in handling situations involving five

categories: Customer Service, Sales Ability/Potential,

Technical Savvy/Troubleshooting, Computer Knowledge, and

Adaptability/Flexibility . 4 /

16. The guide provides the interviewer with three

questions in each category, though the interviewer may opt to

ask only two. 5 / The interviewer scores the applicantÓs responses

in each category on a scale of 1 to 5, with any score below 3

being deemed unacceptable. Based on the entire interview, the

interviewer also gives the applicant a score in a category

labeled ÐCommunicationÑ on the same 1 to 5 scale. Finally, the

interviewer gives the applicant an overall grade of Ð Acceptable Ñ

or ÐNot Acceptable.Ñ

17. AT&T requires the applicant to answer the Planned

Behavioral Questions in a ÐSTARÑ format; that is, the

applicantÓs response should disclose a ÐSituation/TaskÑ that was

presented to the applicant, describe the ÐAction Ñ the applicant

took, and state the ÐResponseÑ or outcome of the action taken to

resolve the situation.

18. At the beginning of the interview, Ms. Kerstetter

explained that she would ask him a series of questions that he

was to answer from his personal experience. She also explained

the STAR format to him .

19. Ms. Kerstetter testified that she had no present

recollection of Petitioner or of the May 2, 2012 , interview.

However, Ms. KerstetterÓs notes of the interview were admitted

into evidence as a jo int exhibit and adopted by Ms. Kerstetter

at the hearing. Petitioner conceded that the notes were

accurate but stated that they did not capture the detail of

everything he stated during the interview.

20. Petitioner testified that Ms. KerstetterÓs initia l

questions were about his job experience. They spoke for five to

ten minutes about PetitionerÓs phone company work. Petitioner

told Ms. Kerstetter about his 17 years at Pacific Bell,

including time as a supervisor in operator services and six

years in c ustomer service. He also told her that he owned a

business phone system interconnect company that was still a

going concern after 25 years.

21. Petitioner testified that he found it Ðsort of

peculiarÑ that Ms. Kerstetter did not ask him for more detail s

about his phone company work or make any written notes about it.

In fact, under ÐWork Background,Ñ Ms. Kerstetter parenthetically

noted Ðsmall business phone systems 25 years.Ñ

22. Petitioner faulted Ms. Kerstetter for not asking him

detailed follow - up questions about his phone company experience,

but he conceded that he talked about his experience only in

general terms and provided no details as to any special projects

he worked on. When Ms. Kerstetter asked him to describe any

other experience he h ad, Petitioner told her about his handyman

business and his work as a cable installer. Petitioner gave the

overall impression of having been very passive during the

interview, waiting for Ms. Kerstetter to draw out the

information rather than taking the i nitiative to make sure she

knew everything about him that he believed was relevant to the

job for which he was applying.

23. Ms. Kerstetter noted that Petitioner did not comply

with the STAR format in response to question 3 in the category of

Sales Abilit y/Potential. (The question is set forth at endnote

5, supra .) In fact, she noted that he did not answer the

question at all . Ms. Kerstetter also noted that Petitioner

provided no STAR in response to question 3 of the Computer

Knowledge category , which a sked the applicant to describe the

most complex activity he is able to complete with a computer,

how often he performs that activity, and the computer programs

he uses in the activity.

24. In the categories of Customer Service, Sales

Ability/Potential, Te chnical Savvy/Troubleshooting, and Computer

Knowledge , Ms. Kerstetter scored Petitioner a 2, which

indicates a result that is Ð Less than Acceptable. Ñ

Ms. Kerstetter rated Petitioner a Ð 3 Ñ , or Ð Acceptable , Ñ in the

categories of Adaptability/Flexibility and Communication.

25. Ms. Kerstetter rated PetitionerÓs overall score as

ÐNot Acceptable.Ñ Ms. Kerstetter testified that the scoring on

the interview is subjective. She stated that AT&T does not have

a policy of disqualifying an applicant who makes a cert ain

number of less than acceptable scores. Her rule of thumb is

that she might hire someone who made one Ð 2 Ñ because she could

focus on that area of weakness and improve the applicantÓs skill

in that area during training. If there are two or more less

th an acceptable scores, she is not likely to hire the applicant.

26. Ms. Kerstetter testified that PetitionerÓs rating was

based entirely on his responses to the questions in the

interview. Applicants are not required to provide their age. 6 /

Ms. Kerstette r testified that her training instructed her not to

ask applicants age - related questions. She stated that she did

not know PetitionerÓs age and did not base her decision on his

age.

27. However, it is noted that Petitioner plainly appears

to be well past fifty years of age. Therefore, Ms. KerstetterÓs

unawareness of PetitionerÓs exact age does not alone operate as

a complete defense to the allegation that she discriminated

against him because of his age. 7 /

28. Petitioner objected that Ms. Kerstetter di d not have a

copy of his resume or the resume builder document in front of

her during the interview. Ms. Kerstetter testified that

sometimes she does and sometimes she does n o t have a resume

during these interviews, depending on whether an AT&T clerk has

placed the resume in the file.

29. Ms. Garcia testified that applicants for the CSR

position are not required to submit resumes and interviewers are

not required to bring applicantsÓ resumes to the interviews.

30. Eunice Robinson, the AT&T area manager w ho is

Ms. KerstetterÓs supervisor, testified that she has done

interviews with and without resumes. She added that she did not

think the resume makes a difference regarding whether the

applicant is hired, because Ðthe interview process, at the point

when youÓre in front of the interviewer, itÓs all about

communication, itÓs all about how you sell yourself to say that

you are the right person for the job.Ñ

31. Ms. Kerstetter interviewed other applicants for the

CSR position around the time of Petitioner's application. Four

of those she interviewed were ultimately hired as CSRs.

Ms. Kerstetter gave higher scores to each of these four, Jason

Rodriguez, Terri Gill, Angela Queen , and William DeRousse , than

she gave to Petitioner based on their answers to the questions

asked. Ms. Kerstetter gave credible explanations for her

ratings that were unrelated to the age of the applicant s, none of

whose ages she knew at the time of the interviews .

32. Mr. Rodriguez received scores of 3 in all areas except

Technical S avvy/Troubleshooting and Computer Knowledge, for

which he was rated a 4, indicating ÐMore Than Acceptable.Ñ

Ms. Kerstetter testified that she gave Mr. Rodrigu ez a high

score on Computer Knowledge because he was Ðvery savvy on the

internetÑ and had advance d computer skills such as the ability

to set up gaming servers. 8 / In contrast, the computer skills

noted by Petitioner, such as the ability to work with Microsoft

Office, were things learned Ðin middle school nowadays.Ñ

Ms. Kerstetter did not hold Mr. Ro driguezÓ relative lack of work

experience against him because he had been a college student and

was only now ready to work a full - time job.

33. As to PetitionerÓs contention that his experience with

Pacific Bell, an AT&T related entity, made him more qual ified

than Mr. Rodriguez, Ms. Robinson testified that prior experience

working for AT&T would not be a deciding factor in hiring.

34. Ms. Kerstetter noted that she was looking for sales

experience, not necessarily experience in the telephone

industry. She also noted that PetitionerÓs experience was

somewhat stale, having predated wireless communications, and

that Petitioner did not give her sufficient detail describing

his experience: ÐJust saying you have customer service

experience doesnÓt really mea n Ï - you could be good or bad.Ñ

The behavioral interview, not experience, is the key to being

hired for the CSR position.

35 . Ms. Gill received scores of 4 in the categories of

Customer Service and Adaptability/Flexibility, and scores of 3

in all o ther categories. Ms. Kerstetter noted that Ms. Gill

demonstrated she Ðcan take sales pressure to deliver quotas.

Enjoys Customer Service. Incentives motivate.Ñ Ms. Kerstetter

recalled that Ms. Gill stated during the interview, ÐMoney

motivates me.Ñ Ms . Kerstetter testified that such motivation

was important because Ðwe have incentives and commission - based

drivers to drive key behaviors that we want the representatives

to demonstrate.Ñ

36 . Ms. Queen was rated a 3 in all categories.

Ms. KerstetterÓs no tes indicated that Ms. Queen had done

seasonal work in call centers, that her interview responses

appeared to comply with the STAR format, and that she was able

to rebuild a computer.

37 . Mr. DeRousse received scores of 5, indicating ÐMuch

more than accep table,Ñ in the categories of Sales

Ability/Persuasiveness and Technical Savvy/Troubleshooting , and

scores a 4 in all other categories. Ms. Kerstetter noted that

Mr. DeRousse was ÐassertiveÑ and Ðwill be a good salesperson

able to overcome objections and already knows how to sell

benefits.Ñ

38 . Ms. Kerstetter credibly denied that her decision to

hire any of these successful applicants had anything to do with

their ages.

39 . Petitioner attempted to establish that Ms. Kerstetter

behaved differently in h er interview with Petitioner than with

these other applicants , that she was less inquisitive and showed

less interest in his experience and qualifications, leading to

the inference that she ruled out Petitioner as soon as she saw

that he was an older candi date .

40 . Petitioner did not establish this proposition. AT&T

hired applicants over the age of 40 to the position for which

Petitioner applied, including one who was 60 years old . Out of

28 individuals hired, ten were in the protected age group

(35.71 %) as of the date of their application. Of these ten , four

were over 50, and one was 60.

41 . The CSR position is an entry - level job. AT&T does not

expect applicants to spend their careers in this position.

Ms. Robinson testified that there are 450 CSRs working at the

Ocala call center, with a capacity for 696. The company

interviews and hires applicants every day. There is a lot of

turnover. Ms. Robinson estimated that the call center loses 25

to 40 CSRs every month. Ms. Kerstetter testified that

ap plicants are hired in the hope that they will stay with the

company for twelve months. All of this is to say that it would

be self - defeating for someone in Ms. KerstetterÓs position to

dismiss any applicant out of hand for reasons unrelated to the

require ments of the position.

42 . Petitioner failed to offer persuasive evidence that

AT&T discriminated against him because of his age in violation

of s ection 760.10, Florida Statutes.

CONCLUSIONS OF LAW

43 . The Division of Administrative Hearings has

juri sdiction of the subject matter of and the parties to this

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

44 . The Florida Civil Rights Act of 1992 (the Ð Florida

Civil Rights Act Ñ or the Ð Act Ñ ), c hapter 760, prohibits

discrimination in the workplace .

45 . Section 760.10 , states the following , in relevant

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 compe nsation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

46 . AT&T is an Ð employer Ñ as defined in section 760.02(7),

which provides the following:

(7) Ð Employer Ñ means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such a person.

4 7 . Florida courts have determined that federal case law

a pplies to claims arising under the Florida's Civil Rights Act,

and as such, the United States Supreme Court's model for

employment discrimination cases set forth in McDonnell Douglas

Corp. v. Green , 411 U.S. 792 (1973), applies to claims arising

under s ect ion 760.10, Florida Statutes. See Paraohao v. Bankers

Club, Inc. , 225 F. Supp. 2d 1353, 1361 (S.D. Fla. 2002); Fla .

State Univ . v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA

1996); Fla . Dep Ó t of Cmty . Aff . v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991) .

4 8 . Direct evidence of discrimination is Ð evidence, that,

if believed, proves [the] existence of [a] fact without

inference or presumption. Ñ Wilson v. B/E Aerospace, Inc. , 376

F.3d 1079, 1086 (11 th Cir. 2004) ( quoting Burrell v. Bd. of

Trustees of Ga. M ilitary Coll. , 125 F.3d 1390, 1393 (11 th Cir.

1997) ) . As stated in Cooper v. Southern Co. , 390 F.3d 695, 724

(11 th Cir. 2004) :

Direct evidence is evidence which itself

proves the existence of discrimination and

does not require inference or

interpretation , as for example a frank

admission from a manager that he refused to

hire an applicant because he was black or

because she was female. As would be

expected, such direct evidence is

encountered only infrequently, since direct

evidence Ð is composed of only the most

blatant remarks, whose intent could be

nothing other than to discriminate on the

basis of some impermissible factor. Ñ

Schoenfeld v. Babbitt , 163 F.3d 1257, 1266

(11 th Cir. 1999) (citation and internal

quotation marks omitted).

4 9 . No direct ev idence of discrimination was presented in

this case.

50 . In the absence of direct evidence of a discriminatory

animus, the McDonnell analysis is applied to determine claims

supported only by circumstantial evidence. Under the McDonnell

analysis, in emplo yment discrimination cases, Petitioner has the

burden of establishing by a preponderance of evidence a prima

facie case of unlawful discrimination. If the prima facie case

is established, the burden shifts to the employer to rebut this

preliminary showing by producing evidence that the adverse

action was taken for some legitimate, non - discriminatory reason.

If the employer rebuts the prima facie case, the burden shifts

back to Petitioner to show by a preponderance of evidence that

the employer 's offered r easons for its adverse employment

decision were pretextual. See Texas Dep Ó t of Cmty . Aff . v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

51 . In order to prove a prima facie case of unlawful

employment discrimination under c hapter 760 , Petitioner must

establish that: (1) he is a memb er of the protected group; (2)

he was subject to adverse employment action; (3) AT&T treated

similarly situated employees outside of h is protected

classifications more favorably ; and (4) Petitioner was qua lified

to do the job and/or was performing h is job at a level that met

the employerÓs legitimate expectations . See , e.g. , Jiles v.

United Parcel Serv . , Inc. , 360 Fed. Appx. 61, 64 (11 th Cir.

2010); Burke - Fowler v. Orange Cnty . , 447 F.3d 1319, 1323 (11th

C ir. 2006); Knight v. Baptist Hosp . of Miami, Inc. , 330 F.3d

1313, 1316 (11 th Cir. 2003); Williams v. Vitro Serv . Corp . , 144

F.3d 1438, 1441 (11th Cir. 1998); McKenzie v. EAP Mgmt . Corp. ,

40 F. Supp. 2d 1369, 1374 - 75 (S.D. Fla. 1999).

52 . Petitioner has fai led to prove a prima facie case of

unlawful employment discrimination.

53 . Petitioner established that he is a member of a

protected group, in that he was 60 years old at the time he

applied for the CSR position with AT&T. Petitioner was subject

to an adv erse employment action in that he was not hired for the

position . However, Petitioner failed to demonstrate either that

similarly situated employees outside of his protected

classification were treated more favorably, or that he was

qualified for the CSR position.

54 . Petitioner offered no persuasive evidence to refute

Ms. KerstetterÓs conclusion at the close of the interview that

Petitioner was ÐNot AcceptableÑ for the CSR position. In the

absence of persuasive evidence to the contrary, the undersigned

will defer to the expertise of the hiring officer as to her

assessment of PetitionerÓs qualifications for the job. See ,

e.g. , Watson v. Fort Worth Bank and Trust , 487 U.S. 977, 999

( 1988) ( Ð Ò In evaluating claims that discretionary employment

practices are insufficiently related to legitimate business

purposes, it must be borne in mind that Ó [c]ourts are generally

less competent than employers to restructure business practices,

and unless mandated to do so by Congress they should not

attempt it. Ó Ñ ).

55 . Th ere was no evidence , outside of PetitionerÓs stated

suspicions, that AT&T considered P etitionerÓs age as a negative

factor in assessing his qualifications for the CSR position.

Ms. Kerstetter evaluated Petitioner on the requirements of the

position and h i s responses to her questions during the interview .

While the evaluation process was admittedly subjective,

Ms. Kerstetter adequately explained her rationale for not

finding Petitioner qualified and for her decisions to hire four

other applicants.

5 6 . Hav ing failed to establish t wo elements of the

McDonnell analysis , Petitioner has not established a prima facie

case of employment discrimination.

5 7 . Even if Petitioner had met the burden, AT&T presented

evidence of legitimate, non - discriminatory reasons f or

Petitioner's rejection . Ms. Kerstetter based her decision on

PetitionerÓs answers during the interview. She based her

decisions to hire Mr. Rodriguez, Ms. Queen, Mr. DeRousse, and

Ms. Gill on their answers during their interviews. PetitionerÓs

own te stimony established that he passively waited for

Ms. Kerstetter to inquire about his experience rather than

aggressively putting his qualifications forward during the

interview. Such behavior clearly did not bode well for a

telephone sales position, and M s. Kerstetter was well within

reason to find Petitioner ÐNot AcceptableÑ for the CSR position.

5 8 . Because AT&T articulated a legitimate,

nondiscriminatory reason for not hiring Petitioner , the burden

shifts back to Petitioner to produce evidence that AT& T' s s tated

reason is a pretext for discrimination, and that his age was the

Ð but for Ñ factor in his non - selection. Sims v. MVM, Inc. , 704

F.3d 1327, 1334 (11 th Cir. 2013) . A reason cannot be a pretext

for discrimination Ð unless it is shown both that the reason was

false, and that discrimination was the real reason. Ñ F SU v.

S o ndel , 685 So. 2d 923, 927 (Fla. 1st DCA 1996) ( quoting St.

Mary's Honor Center v. Hicks , 509 U.S. 502, 515 (1993) ) .

5 9 . Petitioner failed to produce any evidence tending to

prove th at AT&TÓs stated reasons for failing to hire him were

pretextual. PetitionerÓs suspicions, without more, are

insufficient to establish that Ms. KerstetterÓs testimony

regarding the hiring process was false, and that her reason for

not hiring Petitioner wa s his age.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

issue a final order finding that AT&T Mobility Services, LLC ,

did not commit any unlawful employme nt practices , and dismissing

the Petition for Relief filed in th is case .

DONE AND ENT ERED this 1 5 th day of May, 2014 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Admi nistrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 5 th day of May, 2014 .

ENDNOTES

1 / The original style of the case named an entity called ÐAT&T

Customer Service CenterÑ as the Respondent. At the hearing,

Respondent corrected the record to reflect the name of the

entity th at would have hired Petitioner had his application been

successful.

2 / Citations shall be to Florida Statutes (20 12 ) unless

otherwise specified. Section 760.10, Florida Statutes, has been

unchanged since 1992 .

3 / It should be noted that these disput es occurred while

Petitioner was representing himself in this proceeding.

PetitionerÓs counsel of record, Mr. Glasser, did not enter a

N otice of A ppearance until September 5, 2013, five days before

the final hearing.

4 / The guide also included an option al segment in which the

interviewer assesses the applicantÓs ÐMotivational Fit,Ñ but

this segment was not used in PetitionerÓs interview.

5 / For example, question 3 in the category ÐSales

Ability/PotentialÑ was, ÐGive me an example of a different or

Òout of the boxÓ approach you once used to persuade someone to

cooperate with you. How did it turn out?Ñ A ÐCustomer ServiceÑ

question was, ÐSometimes when a customer calls us, it is to

complain about something. Tell me about a time when you dealt

with a cu stomer who was complaining about poor service. How did

you handle it?Ñ

Petitioner testified that he suspected Ms. Kerstetter was

discriminating against him based on age because she did not

delve more deeply into his extensive experience with Pacific

Be ll. AT&T countered , with good reason, that the Planned

Behavioral Questions were broad and provided Petitioner with

ample opportunity to discuss any relevant work experience that

Ms. Kerstetter did not directly ask him about.

6 / Ms. Garcia testified that AT&T does not ask for an

applicantÓs age until he is given a contingent job offer. At

th at point, the applicantÓs age and Social Security number are

required in order to run a background check.

7 / For what it i s worth, Ms. Kerstetter is herself 51 years old.

8 / Ms. Kerstetter had a much better recollection of the

applicants whom she hired than she did of Petitioner.

COPIES FURNISHED :

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Ta llahassee, Florida 32301

Leticia D. Alfonso, Esquire

AT & T Legal Department

675 West Peachtree Street

Atlanta, Georgia 30308

David W. Glasser, Esquire

Law Office of David W. Glasser

116 Orange Avenue

Daytona Beach, Florida 32114

Cheyanne Costilla, Gen eral Co unsel

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 Recommende d Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.