15-005982
Annette Whitner vs.
Highlands County Board Of County Commissioners
Status: Closed
DOAH Final Order on Wednesday, March 23, 2016.
DOAH Final Order on Wednesday, March 23, 2016.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ANNETTE WHITNER,
10Petitioner,
11vs. Case No. 15 - 5982
17HIGHLANDS COUNTY BOARD OF COUNTY
22COMMISSIONERS,
23Respondent.
24_______________________________/
25SUMMARY FINAL ORDER
28Administrative Law Judge John D. C. Newton, II, of the
38Division of Administrative Hearings (DOAH) conducted the final
46hearing on February 8 , 201 6 , in Sebring, Florida .
56APPEARANCES
57For Petitioner: Annette B. Whitner , pro se
643805 Enchanted Oaks Lane
68Sebring, Florida 33875
71For Respondent: Cindy Ann Townsend , Esq uire
78Bell & Roper, P.A.
822707 East Jefferson Street
86Orlando, Florida 32803
89STATEMENT OF THE ISSUE
93Did Respondent , Highlands Co unty Board of County
101Commissioners (County ) , discriminate against Petitioner , Annette
108Whitner, on account of her age?
114PRELIMINARY STATEMENT
116On February 1 2 , 201 5 , Ms. Whitner filed a charge of
128d iscrimination with the Florida Commission on Human Relations
137( Commission ) . The charge alleged the County discriminated
147against Ms. Whitner by not selecting her for an interview on
158account of her age and gender. On September 14, 2015, the
169Commission issued a Determination finding no reasonable cause
177existed to beli eve that an unlawful practice occurred.
186On October 19 , 2015 , Ms. Whitner filed a Petition for
196Relief for unlawful employment practice s with the Commission .
206That same day the Commission referred the matter to DOAH to
217conduct a hearing .
221On November 3, 2015 , the County and Ms. Whitner filed a
232joint motion requesting a s ummary proceeding . On N ovember 4,
2442015, a Pre - Hearing T eleconference was held on the joint motion.
257The p arties , who previously suggested dates outside t he 30 - day
270requirement of section 120.5 74(1)(b), Florida Statutes (2015) 1 / ,
280waived the requirement . The j oint m otion for a s ummary
293proceeding was granted .
297The undersigned conducted the hearing on February 8, 2016.
306At the hearing, Ms. Whitner withdrew her complaint of gender
316discrimination. Ms . Whitner testified on her own behalf and
326entered Exhibits F and I through O into evidence . The County
338presented the testimony of Randal Vosburg and Gloria Rybinski
347and entered Exhibits 1 through 24 into evidence.
355The Transcript was filed on February 17 , 2016. The County
365timely filed a Proposed Order . Ms. Whitner filed an untimely
376Proposed Order. It is accepted as timely. The partiesÓ
385Proposed Orders have been considered in the preparation of this
395Order .
397FINDINGS OF FACT
4001. At the time of the allege d discrimination, Ms. Whitner
411was 71 years old.
4152. Ms. Whitner claims that the County discriminated against
424her by not interviewing her for its business services director
434position due to her age. Ms. Whitner claims that she was
445discriminated against bec ause the p osition required a n applicant
456to be a Certified Public Accountant (CPA). She argues that older
467people are less likely to hold a CPA certification. Th e weight
479of the credible evidence did not establish this claim. Ms.
489Whitner did not establish any connection between possessing a CPA
499certification and age.
5023. On November 10, 2014, the County posted the position
512online. It was a newly created position, established as part of
523a reorganization by the County. Because of previous audit errors
533and the departments the p osition would oversee, the County
543determined the minimum qualifications for the p osition should be :
554BachelorÓs degree with major course work in
561public administration, business
564administration, accounting, finance or
568related field and po ssession of Certified
575Public Accountant (CPA) professional
579certification or equivalent is required.
584Master degree in business administration,
589finance management, public administration, or
594related discipline is preferred.
5984. In determining the equivalent to a CPA, the County
608referred to the Guide for Certifications for Accounting, Finance
617and Operations Management (Guide) . This was a reasonable non -
628discriminatory decision. Based on the Guide, the County
636determined a Certified Government Auditing Professi onal,
643Certified Governmental Financial Manager, and Certified Internal
650Auditor would constitute an equivalent to a CPA certification.
659The certifications were deemed equivalent because they required
667similar education, experience , and completion of an exami nation,
676similar to one taken for a CPA certification .
6855. The closing date for all applicants was December 15,
6952014. Ms. Whitner submitted her application near midnight of
704December 15.
7066. Ms. Whitner i s not a CPA . In addition, Ms. Whitner did
720not follow the instructions on the application. She scratched
729out the instructions on the application and wrote ÐfirstÑ above
739where it read Ðcurrent or most recent employer.Ñ Ms. WhitnerÓs
749application contained typed and handwritten information. Ms.
756WhitnerÓs app lication did not provide her complete work history
766as the application instructed. In one of the fields of
776employment, after 1992, Ms. Whitner wrote Ð various employers. Ñ
786Ms. WhitnerÓs application left a n unexplained gap in work
796history, from 1992 to the p resent.
8037. Ms. WhitnerÓs application included copies of her
811Bachelor of Science in Business Administration degree , Master of
820Public Affairs degree , certification as a Certified District
828Manager, Certificate of Recognition from the Indiana Executive
836Progr am , and a letter of reference from Al Grieshaber, General
847Manager at
849Sun ÒN Lake of Sebring, dated February 8, 2010.
8588. Ms. WhitnerÓs application indicated she had a
866certification as a Certified Professional Government Accountant.
873Ms. Whitner asserts th at a certification as a Certified
883Professional Government Accountant should be equivalent to a CPA
892certification. However, the Guide does not include a
900certification for a Certified Professional Government Accountant
907a s a CPA equivalent, n or does the Coun ty consider it equivalent .
922Additionally, Ms. Whitner did not attach a copy of her
932certification or provide persuasive evidence of the certification
940criteria and their similarity to CPA criteria .
9489. The County could not determine if Ms. Whitner had worke d
960since 1992. Ms. Whitner argues that her letter of reference from
971Al Grieshaber demonstrated her employment since 1992 . However,
980t he letter did not include the dates Ms. Whitner worked , the
992position held, or her duties and the type of work she performed
1004at Sun ÒN Lake of Sebring .
101110. Randal Vosburg, Assistant Count y Administrator, was
1019involved in the hiring and selection process for the position.
1029The primary criteria he was looking for when reviewing the
1039applications was whether the applicant had a CP A. Mr. Vosburg
1050did not have any contact with Ms. Whitner and did not know her
1063age when reviewing her application. Mr. Vosburg did not consider
1073Ms. WhitnerÓs age when reviewing her application.
108011. The County did not select Ms. Whitner for an intervie w
1092because she was not a CPA and did not possess a certificate that
1105is equivalent to a CPA certification . Additionally, Ms. Whitner
1115presented an unprofessional application, did not provide a
1123complete work history so that there appeared to be more than a
1135tw enty - year gap in employment , and did not follow the
1147instructions on the employment application. These were all
1155reasonable non - discriminatory bases for deciding not to interview
1165Ms. Whitner.
116712. O n January 5, 2015 , Ms. Whitner submitted an addendum
1178to her employment application . This was after the application
1188deadline and after the County had selected candidates to
1197interview . Ms. WhitnerÓs addendum did not provide documentation
1206or certification that she possessed a CPA certification or the
1216equivalent.
12171 3. The County selected Tanya Cannady and Stanoil Raley for
1228interviews. Both possessed CPAs. Both were reasonably deemed to
1237be more qualified than Ms. Whitner .
124414. A panel of three people interviewed Ms. Cannady and
1254Mr. Raley. Randal Vosburg, June Fis her, County Administrator,
1263and Mark Hill, then - Development Services Director , served on the
1274panel .
127615. Ms. Cannady performed much better than Mr. Raley during
1286the interview. Additionally, Ms. CannadyÓs work experience was
1294more relevant to the position t han Mr. RaleyÓs work experience.
130516. The County selected Ms. Cannady for the position
1314because she met the requirem ent of having a minimum of five - years
1328of progressively responsible relevant experience , was a CPA, and
1337was more qualified than Mr. Raley and the other applicants.
134717. The County offered the position to Ms. Cannady. She
1357did not accept the offer and withdrew her application.
136618. On August 5, 2015, the County re - posted the p osition
1379online . The county changed the CPA requirement from Ð requi red Ñ
1392to Ð preferred Ñ because the County was having trouble finding CPA
1404applicants.
140519. Ms. Whitner did not reapply for the position. The
1415County conducted additional interviews and selected Tasha Morgan.
1423Ms. Morgan was female and was a CPA.
143120. T he pre ponderance of the credible, persuasive evidence
1441d id not establish that the County discriminated against
1450Ms. Whitner due to her age .
145721. T he preponderance of the credible, persuasive evidence
1466established that the County had legitimate non - discriminatory
1475r easons for not interviewing Ms. Whitner.
1482CONCLUSIONS OF LAW
148522. Sections 120.569 and 120.57(1) grant DOAH jurisdiction
1493over the subject matter of this proceeding and of the parties.
150423. M s. Whitner maintains that Highlands County Board of
1514County Commis sioners discriminated against her in her application
1523for employment on account of her age. Ms. Whitner must prove her
1535claims by a preponderance of the evidence. Dep't. of Banking &
1546Fin. v. Osborne Stern & Co., Inc. , 670 So. 2d 932 (Fla. 1996).
155924. Sec tions 760.10(1 ) (a) and (b) make it unlawful for an
1572employer to take adverse action against an individual because of
1582the individual's age. Sunbeam TV Corp. v. Mitzel , 83 So. 3d 865,
1594866 (Fla. 3d DCA 2012); Miami - Dade Cnty. v. Eghbal , 54 So. 3d 525
1609(Fla. 3d DCA 2011), reh . denied , Case No. 3D10 - 1596 (Fla. 3d DCA
1624Feb. 22, 2011), rev . denied , 71 So. 3d 117 (Fla. 2011); Bratcher
1637v. C i ty of High Springs , Case No. 11 - 2999 (Fla. DOAH Sept. 28,
16532011), rejected in part , Case No. 2011 - 358, FO No. 11 - 91 (Fla.
1668FCHR Dec . 7, 2011).
167325. The Florida Legislature patterned chapter 760 after
1681Title VII of the Civil Rights Act of 1964, as amended.
1692Consequently, Florida courts look to federal case law when
1701interpreting chapter 760. Valenzuela v. GlobeGround N . Am., LLC ,
171118 So. 3d 17 (Fla. 3rd DCA 2009).
171926. A party may prove unlawful discrimination through
1727direct evidence of discrimination. City of Hollywood v. Hogan ,
1736986 So. 2d 634, 641 (Fla. 4th DCA 2008), reh . denied , Case No.
17504D07 - 392 (Fla. 4th Dist. Ct. App. Aug. 21, 200 8). Direct
1763evidence is something like a discriminatory statement by a
1772supervisor that requires no interpretation or inferences to
1780manifest the discrimination. Schoenfeld v. Babbitt , 168 F.3d
17881257, 1266 (11th Cir. 1999).
179327. An employee may also prove a claim of discrimination by
1804circumstantial evidence establishing that similarly situated
1810employees, who were not in her protected class, were treated more
1821favorably than s he was. Wilson v. B/E Aerospace, Inc. , 376 F.3d
18331079, 1087 ( 11th Cir. 2004).
183928. The persuasive evidence , credible evidence, and
1846circumstantial evidence do not establish that Highlands County
1854Board of County Commissioners discriminated against Ms. Whitner
1862because of her age.
1866ORDER
1867Based on the foregoing Findings of Fact and Conclusions of
1877Law, the Petition for Relief of Annette Whitner in FCHR Case No.
1889201 5 - 00779 is DENIED .
1896DONE AND ORDE RED this 23rd day of March, 2016 , in
1907Tallahassee, Leon County, Florida.
1911S
1912JOHN D. C. NEWTON, II
1917Administrative Law Judge
1920Division of Administrative
1923Hearings
1924The DeSoto Building
19271230 Apalachee Parkway
1930Tallahassee, Florida 32399 - 3060
1935(850) 488 - 9675
1939Fax Filing (850) 921 - 6847
1945www.doah.state.fl.us
1946Filed with the Clerk of the
1952Division of Administrative
1955Hearings
1956this 23rd day of March, 2016 .
1963ENDNOTE
19641 / All citations to the Florida Statutes are to the 2015
1976compilation unless otherwise noted.
1980COPIES FURNISHED:
1982Tammy S. Barton, Agency Clerk
1987Florida Commission on Human Relations
1992Room 110
19944075 Esplanade Way
1997Tallahassee, Florida 32399
2000(eServed)
2001Cindy Ann Townsend, Esquire
2005Bell & Roper, P.A.
20092707 East Jefferson Street
2013Orlando, Florida 32803
2016(eServed)
2017Annette B. Whitner , pro se
20223805 Enchanted Oaks Lane
2026Sebring, Florida 33875
2029(eServed)
2030Michael John Roper, Esquire
2034Bell & Roper, P.A.
20382707 East Jefferson Street
2042Orlando, Florida 32803
2045(eServed)
2046Cheyanne Costilla, Gen eral Co unsel
2052Florida Commission on Human Relations
20574075 Esplanade Way
2060Room 110
2062Tallahassee, Florida 32399
2065(eServed)
2066NOTICE OF RIGHT TO JUDICIAL REVIEW
2072A party who is adversely affected by this Final Order is
2083entitled to judicial review pursuant to section 120.68, Florida
2092Statutes. Review proceedings are governed by the Florida Rules
2101of Appellate Procedure. Such proceedings are commenced by
2109filing the original not ice of administrative appeal with the
2119agency clerk of the Division of Administrative Hearings within
212830 days of rendition of the order to be reviewed, and a copy of
2142the notice, accompanied by any filing fees prescribed by law,
2152with the clerk of the Distric t Court of Appeal in the appellate
2165district where the agency maintains its headquarters or where a
2175party resides or as otherwise provided by law.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 03/23/2016
- Proceedings: Summary Final Order (hearing held February 8, 2016). CASE CLOSED.
-
PDF:
- Date: 02/29/2016
- Proceedings: Petitioner's Proposed Findings of Fact, Legal Memorandum and Conclusions of Law filed.
-
PDF:
- Date: 02/25/2016
- Proceedings: Respondent's Proposed Findings of Fact, Legal Memorandum and Conclusions of Law filed.
- Date: 02/17/2016
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 02/08/2016
- Proceedings: CASE STATUS: Hearing Held.
-
PDF:
- Date: 02/04/2016
- Proceedings: Defendant, Highlands County Board of County Commissioner's, Second Amended Exhibit List filed.
-
PDF:
- Date: 02/02/2016
- Proceedings: Defendant, Highlands County Board of County Commissioner's, Amended Exhibit List filed.
-
PDF:
- Date: 01/28/2016
- Proceedings: Defendant, Highlands County Board of County Commissioner's, Exhibit List filed.
-
PDF:
- Date: 01/28/2016
- Proceedings: Defendant, Highlands County Board of County Commissioner's, Witness List filed.
-
PDF:
- Date: 12/04/2015
- Proceedings: Order Re-scheduling Hearing (hearing set for February 8, 2016; 9:00 a.m.; Sebring, FL).
-
PDF:
- Date: 11/05/2015
- Proceedings: Notice of Hearing (hearing set for January 26, 2016; 9:00 a.m.; Sebring, FL).
- Date: 11/04/2015
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
-
PDF:
- Date: 11/03/2015
- Proceedings: Joint Motion to Request that the Case Proceed as a Summary Hearing filed.
- Date: 10/21/2015
- Proceedings: Charge of Discrimination filed.
Case Information
- Judge:
- JOHN D. C. NEWTON, II
- Date Filed:
- 10/21/2015
- Date Assignment:
- 10/21/2015
- Last Docket Entry:
- 03/23/2016
- Location:
- Sebring, Florida
- District:
- Middle
- Agency:
- Florida Commission on Human Relations
Counsels
-
Tammy S Barton, Agency Clerk
Address of Record -
Michael John Roper, Esquire
Address of Record -
Cindy Ann Townsend, Esquire
Address of Record -
Annette B Whitner
Address of Record