15-005982 Annette Whitner vs. Highlands County Board Of County Commissioners Status: Closed DOAH Final Order on Wednesday, March 23, 2016.

Summary: Petitioner did not prove County discriminated against her because of age. She did not prove CPA certificate is related to age. County proved legitimate non-discrimanatory reasons for not interviewing Petitoner, including lack of CPA certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNETTE WHITNER,

Petitioner,

vs. Case No. 15 - 5982

HIGHLANDS COUNTY BOARD OF COUNTY

COMMISSIONERS,

Respondent.

_______________________________/

SUMMARY FINAL ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (DOAH) conducted the final

hearing on February 8 , 201 6 , in Sebring, Florida .

APPEARANCES

For Petitioner: Annette B. Whitner , pro se

3805 Enchanted Oaks Lane

Sebring, Florida 33875

For Respondent: Cindy Ann Townsend , Esq uire

Bell & Roper, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

STATEMENT OF THE ISSUE

Did Respondent , Highlands Co unty Board of County

Commissioners (County ) , discriminate against Petitioner , Annette

Whitner, on account of her age?

PRELIMINARY STATEMENT

On February 1 2 , 201 5 , Ms. Whitner filed a charge of

d iscrimination with the Florida Commission on Human Relations

( Commission ) . The charge alleged the County discriminated

against Ms. Whitner by not selecting her for an interview on

account of her age and gender. On September 14, 2015, the

Commission issued a Determination finding no reasonable cause

existed to beli eve that an unlawful practice occurred.

On October 19 , 2015 , Ms. Whitner filed a Petition for

Relief for unlawful employment practice s with the Commission .

That same day the Commission referred the matter to DOAH to

conduct a hearing .

On November 3, 2015 , the County and Ms. Whitner filed a

joint motion requesting a s ummary proceeding . On N ovember 4,

2015, a Pre - Hearing T eleconference was held on the joint motion.

The p arties , who previously suggested dates outside t he 30 - day

requirement of section 120.5 74(1)(b), Florida Statutes (2015) 1 / ,

waived the requirement . The j oint m otion for a s ummary

proceeding was granted .

The undersigned conducted the hearing on February 8, 2016.

At the hearing, Ms. Whitner withdrew her complaint of gender

discrimination. Ms . Whitner testified on her own behalf and

entered Exhibits F and I through O into evidence . The County

presented the testimony of Randal Vosburg and Gloria Rybinski

and entered Exhibits 1 through 24 into evidence.

The Transcript was filed on February 17 , 2016. The County

timely filed a Proposed Order . Ms. Whitner filed an untimely

Proposed Order. It is accepted as timely. The partiesÓ

Proposed Orders have been considered in the preparation of this

Order .

FINDINGS OF FACT

1. At the time of the allege d discrimination, Ms. Whitner

was 71 years old.

2. Ms. Whitner claims that the County discriminated against

her by not interviewing her for its business services director

position due to her age. Ms. Whitner claims that she was

discriminated against bec ause the p osition required a n applicant

to be a Certified Public Accountant (CPA). She argues that older

people are less likely to hold a CPA certification. Th e weight

of the credible evidence did not establish this claim. Ms.

Whitner did not establish any connection between possessing a CPA

certification and age.

3. On November 10, 2014, the County posted the position

online. It was a newly created position, established as part of

a reorganization by the County. Because of previous audit errors

and the departments the p osition would oversee, the County

determined the minimum qualifications for the p osition should be :

BachelorÓs degree with major course work in

public administration, business

administration, accounting, finance or

related field and po ssession of Certified

Public Accountant (CPA) professional

certification or equivalent is required.

Master degree in business administration,

finance management, public administration, or

related discipline is preferred.

4. In determining the equivalent to a CPA, the County

referred to the Guide for Certifications for Accounting, Finance

and Operations Management (Guide) . This was a reasonable non -

discriminatory decision. Based on the Guide, the County

determined a Certified Government Auditing Professi onal,

Certified Governmental Financial Manager, and Certified Internal

Auditor would constitute an equivalent to a CPA certification.

The certifications were deemed equivalent because they required

similar education, experience , and completion of an exami nation,

similar to one taken for a CPA certification .

5. The closing date for all applicants was December 15,

2014. Ms. Whitner submitted her application near midnight of

December 15.

6. Ms. Whitner i s not a CPA . In addition, Ms. Whitner did

not follow the instructions on the application. She scratched

out the instructions on the application and wrote ÐfirstÑ above

where it read Ðcurrent or most recent employer.Ñ Ms. WhitnerÓs

application contained typed and handwritten information. Ms.

WhitnerÓs app lication did not provide her complete work history

as the application instructed. In one of the fields of

employment, after 1992, Ms. Whitner wrote Ð various employers. Ñ

Ms. WhitnerÓs application left a n unexplained gap in work

history, from 1992 to the p resent.

7. Ms. WhitnerÓs application included copies of her

Bachelor of Science in Business Administration degree , Master of

Public Affairs degree , certification as a Certified District

Manager, Certificate of Recognition from the Indiana Executive

Progr am , and a letter of reference from Al Grieshaber, General

Manager at

Sun ÒN Lake of Sebring, dated February 8, 2010.

8. Ms. WhitnerÓs application indicated she had a

certification as a Certified Professional Government Accountant.

Ms. Whitner asserts th at a certification as a Certified

Professional Government Accountant should be equivalent to a CPA

certification. However, the Guide does not include a

certification for a Certified Professional Government Accountant

a s a CPA equivalent, n or does the Coun ty consider it equivalent .

Additionally, Ms. Whitner did not attach a copy of her

certification or provide persuasive evidence of the certification

criteria and their similarity to CPA criteria .

9. The County could not determine if Ms. Whitner had worke d

since 1992. Ms. Whitner argues that her letter of reference from

Al Grieshaber demonstrated her employment since 1992 . However,

t he letter did not include the dates Ms. Whitner worked , the

position held, or her duties and the type of work she performed

at Sun ÒN Lake of Sebring .

10. Randal Vosburg, Assistant Count y Administrator, was

involved in the hiring and selection process for the position.

The primary criteria he was looking for when reviewing the

applications was whether the applicant had a CP A. Mr. Vosburg

did not have any contact with Ms. Whitner and did not know her

age when reviewing her application. Mr. Vosburg did not consider

Ms. WhitnerÓs age when reviewing her application.

11. The County did not select Ms. Whitner for an intervie w

because she was not a CPA and did not possess a certificate that

is equivalent to a CPA certification . Additionally, Ms. Whitner

presented an unprofessional application, did not provide a

complete work history so that there appeared to be more than a

tw enty - year gap in employment , and did not follow the

instructions on the employment application. These were all

reasonable non - discriminatory bases for deciding not to interview

Ms. Whitner.

12. O n January 5, 2015 , Ms. Whitner submitted an addendum

to her employment application . This was after the application

deadline and after the County had selected candidates to

interview . Ms. WhitnerÓs addendum did not provide documentation

or certification that she possessed a CPA certification or the

equivalent.

1 3. The County selected Tanya Cannady and Stanoil Raley for

interviews. Both possessed CPAs. Both were reasonably deemed to

be more qualified than Ms. Whitner .

14. A panel of three people interviewed Ms. Cannady and

Mr. Raley. Randal Vosburg, June Fis her, County Administrator,

and Mark Hill, then - Development Services Director , served on the

panel .

15. Ms. Cannady performed much better than Mr. Raley during

the interview. Additionally, Ms. CannadyÓs work experience was

more relevant to the position t han Mr. RaleyÓs work experience.

16. The County selected Ms. Cannady for the position

because she met the requirem ent of having a minimum of five - years

of progressively responsible relevant experience , was a CPA, and

was more qualified than Mr. Raley and the other applicants.

17. The County offered the position to Ms. Cannady. She

did not accept the offer and withdrew her application.

18. On August 5, 2015, the County re - posted the p osition

online . The county changed the CPA requirement from Ð requi red Ñ

to Ð preferred Ñ because the County was having trouble finding CPA

applicants.

19. Ms. Whitner did not reapply for the position. The

County conducted additional interviews and selected Tasha Morgan.

Ms. Morgan was female and was a CPA.

20. T he pre ponderance of the credible, persuasive evidence

d id not establish that the County discriminated against

Ms. Whitner due to her age .

21. T he preponderance of the credible, persuasive evidence

established that the County had legitimate non - discriminatory

r easons for not interviewing Ms. Whitner.

CONCLUSIONS OF LAW

22. Sections 120.569 and 120.57(1) grant DOAH jurisdiction

over the subject matter of this proceeding and of the parties.

23. M s. Whitner maintains that Highlands County Board of

County Commis sioners discriminated against her in her application

for employment on account of her age. Ms. Whitner must prove her

claims by a preponderance of the evidence. Dep't. of Banking &

Fin. v. Osborne Stern & Co., Inc. , 670 So. 2d 932 (Fla. 1996).

24. Sec tions 760.10(1 ) (a) and (b) make it unlawful for an

employer to take adverse action against an individual because of

the individual's age. Sunbeam TV Corp. v. Mitzel , 83 So. 3d 865,

866 (Fla. 3d DCA 2012); Miami - Dade Cnty. v. Eghbal , 54 So. 3d 525

(Fla. 3d DCA 2011), reh . denied , Case No. 3D10 - 1596 (Fla. 3d DCA

Feb. 22, 2011), rev . denied , 71 So. 3d 117 (Fla. 2011); Bratcher

v. C i ty of High Springs , Case No. 11 - 2999 (Fla. DOAH Sept. 28,

2011), rejected in part , Case No. 2011 - 358, FO No. 11 - 91 (Fla.

FCHR Dec . 7, 2011).

25. The Florida Legislature patterned chapter 760 after

Title VII of the Civil Rights Act of 1964, as amended.

Consequently, Florida courts look to federal case law when

interpreting chapter 760. Valenzuela v. GlobeGround N . Am., LLC ,

18 So. 3d 17 (Fla. 3rd DCA 2009).

26. A party may prove unlawful discrimination through

direct evidence of discrimination. City of Hollywood v. Hogan ,

986 So. 2d 634, 641 (Fla. 4th DCA 2008), reh . denied , Case No.

4D07 - 392 (Fla. 4th Dist. Ct. App. Aug. 21, 200 8). Direct

evidence is something like a discriminatory statement by a

supervisor that requires no interpretation or inferences to

manifest the discrimination. Schoenfeld v. Babbitt , 168 F.3d

1257, 1266 (11th Cir. 1999).

27. An employee may also prove a claim of discrimination by

circumstantial evidence establishing that similarly situated

employees, who were not in her protected class, were treated more

favorably than s he was. Wilson v. B/E Aerospace, Inc. , 376 F.3d

1079, 1087 ( 11th Cir. 2004).

28. The persuasive evidence , credible evidence, and

circumstantial evidence do not establish that Highlands County

Board of County Commissioners discriminated against Ms. Whitner

because of her age.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, the Petition for Relief of Annette Whitner in FCHR Case No.

201 5 - 00779 is DENIED .

DONE AND ORDE RED this 23rd day of March, 2016 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 23rd day of March, 2016 .

ENDNOTE

1 / All citations to the Florida Statutes are to the 2015

compilation unless otherwise noted.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Cindy Ann Townsend, Esquire

Bell & Roper, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

(eServed)

Annette B. Whitner , pro se

3805 Enchanted Oaks Lane

Sebring, Florida 33875

(eServed)

Michael John Roper, Esquire

Bell & Roper, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way

Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original not ice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the Distric t Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.