17-006384 Toney R. Ferrell vs. Florida Agricultural And Mechanical University Board Of Trustees Status: Closed Recommended Order on Thursday, April 5, 2018.

Summary: Petitioner did not present sufficient evidence to prove Respondent engaged in unlawful employment practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TONEY R. FERRELL,

Petitioner,

vs. Case No. 17 - 6384

FLORIDA AGRICULTURAL AND

MECHANICAL UNIVERSITY BOARD OF

TRUSTEES,

Respondent.

_______________________________/

RECOMMENDED ORDE R

Pursuant to notice, on February 15, 2018, Administrative

Law Judge Yolonda Y. Green , of the Division of Administrative

Hearings (ÐDivisionÑ), conducted a final hearing in this matter

in Tallahassee, Florida , pursuant to section 120.57(1), Florida

Statut es (2017) .

APPEARANCES

For Petitioner : Toney R. Ferrell, pro s e

Apartment P101

2125 Jackson Bluff Road

Tallahassee, Florida 32303

For Respondent: David C. Self, II, Esquire

Florida A & M University

300 Lee Ha ll

1601 Martin Luther King Jr. Boulevard

Tallahassee, Florida 3230 7

STATEMENT OF THE ISSUE

Whether Respondent subjected Petitioner to an unlawful

employm ent practice on the basis of his age in violation of

section 760.10, Florida Statutes.

PR ELIMINARY STATEMENT

Petitioner, Toney Ferrell (ÐMr. Ferrell Ñ or Ð PetitionerÑ) ,

filed a Complaint of Employment Discrimination with the Florida

Commission on Human Relatio ns (ÐFCHRÑ) on April 17, 2017. The

complaint alleged that Respondent, Florida Agricul tural and

Mechanical University Board of Trustees (Ð Florida A & M

University Ñ or Ð RespondentÑ) , had discriminated against him on

the basis of age . Following its investigation of the

allegations, FCHR issued a determination of ÐNo Reasonable

CauseÑ regardi ng PetitionerÓs complaint on October 17, 2017 .

On November 20, 2017 , Petitioner filed a Petition for

Relief requesting an administrative hearing regarding FCHRÓs ÐNo

CauseÑ determination pursuant to section 760.11(7). FCHR

referr ed the matter to the Divi sion on the same date.

On November 21, 2017 , this matter was assigned to

Admini strative Law Judge Suzanne Van Wyk. On January 16, 2018 ,

this matter was transferred to the undersigned.

This matter was scheduled for final hearing on February 15,

2018, and t h e final hearing was convened as scheduled . At

hearing, Petitioner offered two exhibits, which were no t

admitted . Mr. Ferrell testified on his own behalf.

Respondent offered the testimony of two witnesses:

Dr. Agatha Onwu n li, Florida A & M University r egistrar, and

Brandice Koonce , an employee in the Florida A & M University

office of human resources . Respondent offered Exhibits A, B,

and D, which were admitted.

The proceeding was recorded by a court reporter and

Respondent ordered a copy of the tra nscript. A one - volume

Transcript of the final hearing was filed with the Division on

February 10, 2018 . The parties timely filed Proposed

Recommended Orders (ÐPROsÑ) , which have been carefully

considered in the preparation of this Recommended Order.

All statutory citatio ns are to Florida Statutes (2016 ),

unless otherwise indicated.

FINDING S OF FACT

The following Findings of Fact are based on exhibits

admitted into evidence, testimony offered by witnesses, and

admitted facts set forth in the pre - hearing stipulation.

1. Mr. Ferrell is a 65 - year - old male , who is employed at

Florida A & M University as a registrar officer . Mr. Ferrell

has worked in the registrarÓs office in various positions since

2003.

2. Florida A & M University is a university locat ed in

Tallahassee , Florida. At all times material to this matter,

Florida A & M University employed more than 15 full - time

employees.

3 . Mr. Ferrell alleged that four employees, Le fevere

Jordan, Cornelius McGlockton , Dyamond V. Smith, and Antonio

Withers poon were treated more favorably than he was treated

because they are younger than he is . Specifica lly, he asserted

that Mr. Jordan received a pay raise; Mr. McGlockton and

Mr. Witherspoon received a promotion; and Ms. Smith was hired at

a higher pay rate for the same position that he holds (registrar

officer) .

4 . Mr. Ferrell Ós job responsibilities as a registrar

officer include maintaining the state course numbering system,

maintaining the university course catalog, scheduling classes,

and scheduling ev ents. During the time that Mr. Ferrell has

been employed by Florida A & M University , he has never been

disciplined for poor work performance or otherwise.

5 . Mr. Ferrell testified that in 2012 or 2013, Dr. Onwu nli

promised him and Mr. Jordan a $5, 000 raise. Dr . Onwunli denied

she made the promise. The undersigned finds Mr. Ferrell more

persuasive on that fact.

6 . Regarding Mr. Witherspoon , he is currently classified

as a registration coordinator. His job responsibilities include

supervising three e mployees, transfe rring credits, and project

management. The coordinator position was advertised on May 20,

2016. Mr. Witherspoon applied for the position and was hired .

Mr. Ferrell did not apply for the coordinator position.

7 . Similar to Mr. Ferrell , Mr. McGlockton is classified as

a registrar officer. His job responsibilities include

processing enrollment verifications and maintaining the

electronic online catalog . Mr. McGlockton has website

experience and successfully c ompleted training for manag ing the

electronic catalog system in 2015.

8 . Ms. Smith is also classified as a registrar officer.

Her job responsibilities include processing test credits,

maintain ing the Ad Astra system, and assisting with the academic

advisement module. O n Februa ry 16, 2017 , the registrar officer

position was advertised. Ms. Smith applied for and was hired

for the position . However, Mr. Ferrell did not apply for the

position posted in February 2017 .

9 . At hearing, Mr. Ferrell acknowledged that he did not

apply for the coordinator or the registrar officer positions.

He explained that he did not believe he was qualified for the

coordinator position because he does not possess a master Ó s

degree . However, despite not having a masterÓs degree, the

position qualific ations included Ða bachelorÓs degree in an

appropriate area of specialization and two years of progressive

experience in an academic environment.Ñ Regarding the registrar

officer position, understandably, he testified that he did not

apply because his pos ition carried the same title. There was no

evidence offered at the hearing to demonstrate that Mr. Ferrell

did not meet the qualifications for the advertised positions .

10 . Dr. Agatha Onwunli is the University R egistrar at

Florida A & M University . Sh e supervises 20 employees ,

including Mr. Ferrell. Her job responsibilities includ e making

hiring and promotion decisions , and training employees who work

in the r egistrarÓs office. As described supra in these findings

of fact, several registrar officer s perform different tasks and

she makes hiring decisions based on the needs of the office.

11 . Mr. Ferrell alleges Florida A & M University

unlawfully discriminated against him on the basis of age .

1 2 . The crux of this case rests with the age of the othe r

employees that are relied upon for comparison. Mr. Ferrell

offere d testimony regarding Mr. Jordan , Mr. Witherspoon,

Mr. McGlockton, and Ms. Smith to prove a similar ly situated

employee outside his protected class , based on age , was treated

more favorab l y than he was treated .

13. Mr. Ferrell testified that the employees could not be

his age for various reasons. However, there was no evidence

presented at hearing regarding the age of the four employees

offered as comparators.

14 . In his PRO, Mr. Fer rell attached exhibi ts that reflect

the age of Mr. Jordan , Mr. Witherspoon, and Ms. Smith . However,

the exhibits were not offered during the hearing and as a

result, they are not evidence of record. A finding of fact may

only be based exclusively on evid ence of record . 1 / Thus , the

undersign ed may not consider the exhibits offered post - hearing

to make a finding of fact regarding the age of Mr. Jordan,

Mr. Witherspoon, and Ms. Smith.

15. The undersigned finds that there was not sufficient

evidence prese nted at the final hearing rega rding the age of

Mr. Jordan, Mr. Witherspoon, Mr. McGlockton , and Ms. Smith.

CONCLUSIONS OF LAW

16 . Pursuant to s ections 120.569 and 120.57( 1), Florida

Statutes (2017 ), the Division has jurisdiction over the subject

matte r and parties to this proceeding.

17 . Section 760.10(1)(a) makes it unlawful for an employer

to take adverse action against an individual because of that

employeeÓs age .

18 . The civil rights act defines ÐemployerÑ as Ðany person

employing 15 or more empl oyees for each working day in each of

20 or more calendar weeks in the current or preceding calendar

year, and any agent of such person.Ñ £ 760.02(7), Fla. Stat.

19 . Florida A & M University meets the definition of

employer.

20 . Petitioner filed a c omplaint alleging Resp ondent

discriminated against him on the basis of his age .

21 . Section 760.11(1) provides, in pertinent part, that

Ð[a]ny person aggrieved by a violation of ss. 760.01 - 760.10 may

file a complaint with the [FCHR] within 365 days of the alleged

violation.Ñ Petitioner timely filed his complaint.

22 . Section 760.11(7) provides that upon a determination

by the FCHR that there is no reasonable cause to believe that a

violation of the Florida Civil Rights Act of 1992 has occurred,

Ð[t]he a ggrieved person may request an administrative hearing

under ss. 120.569 and 120.57, but any such request must be made

within 35 days of the date of determination of reasonable

cause.Ñ Following the FCHR determination of no cause,

Petitioner timely filed h is Petition of Relief requesting a

final hearing .

23 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, the

Florida statute will ta ke on the same constructions as placed on

its federal prototype.Ñ Brand v. Fla. Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); see also Valenzuela v. GlobeGround

N. Am. , LLC, 18 So. 3d 17 (Fla. 3d DCA 2009); Fla. State Univ.

v. Sondel , 685 So. 2d 9 23 (Fla. 1st DCA 1996); Fla. Dep't of

Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

24 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent committed an

unlawful employment practice. See St. Louis v. Fla. Int'l

Univ. , 60 So. 3d 455 (Fla. 3d DCA 2011); Fla. Dep't of Transp.

v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

D iscrimination o n the Basis of Age

25 . To establish a prima facie case of age discrimination,

the undersigned recognizes that Florida judicial case law on age

discrimination clearly establishes that:

The plaintiff must first make a prima facie

showing of discriminatory treatment. He or

she does that by proving: 1) the plaintiff

is a member of a protected class, i.e., at

least forty y ears of age; 2) the plaintiff

is otherwise qualified for the positions

sought; 3) the plaintiff was rejected for

the position; 4) the position was filled by

a worker who was substantially younger than

the plaintiff. (emphasis added).

City of Hollywood v . Hogan , 986 So. 2d 634, 641 (Fla. 4th DCA

2008). However, the FCHR has determined, citing its own O rders

as authority, that:

With regard to element (1), Commission

panels have concluded that one of the

elements for establishing a prima facie case

of age discrimination under the Florida

Civil Rights Act of 1992 is a showing that

individuals similarly - situated to Petitioner

of a ÐdifferentÑ age were treated more

favorably, and Commission panels have noted

that the age Ð40Ñ has no significance in the

interpr etation of the Florida Civil Rights

Act of 1992. See, e.g., Downs v. Shear

Express, Inc. , FCHR Order No. 06 - 036

(May 24, 2006), and cases and analysis set

out therein; see also, Boles v. Santa Rosa

County SheriffÓs Office , FCHR Order No. 08 -

013 (February 8, 2008), and cases and

analysis set out therein. Consequently, we

yet again note that the age Ð40Ñ has no

significance in the interpretation of the

Florida Civil Rights Act of 1992. Accord,

e.g., Grasso v. Agency for Health Care

Administration , FCHR Or der No. 15 - 001

(January 14, 2015), Cox v. Gulf Breeze

Resorts Realty, Inc. , FCHR Order No. 09 - 037

(April 13, 2009), Toms v. Marion County

School Board , FCHR Order No. 07 - 060

(November 7, 2007), and Stewart v. Pasco

County Board of County Commissioners, d/b /a

Pasco County Library System , FCHR Order

No. 07 - 050 (September 25, 2007). But, cf,

City of Hollywood, Florida v. Hogan , et al,

986 So. 2d 634 (4th DCA 2008). With regard

to element (4), while we agree that such a

showing could be an element of a prima facie

case, we note that Commission panels have

long concluded that the Florida Civil Rights

Act of 1992 and its predecessor law, the

Human Rights Act of 1977, as amended,

prohibited age discrimination in employment

on the basis of any age Ðbirth to death. Ñ

See Green v. ATC/VANCOM Management, Inc. ,

20 F.A.L.R. 314 (1997), and Simms v. Niagara

Lockport Industries, Inc. , 8 F.A.L.R. 3588

(FCHR 1986). A Commission panel has

indicated that one of the elements in

determining a prima facie case of age

discrimina tion is that Petitioner is treated

differently than similarly situated

individuals of a ÐdifferentÑ age, as opposed

to a ÐyoungerÑ age. See Musgrove v. Gator

Human Services, c/o Tiger Success Center, et

al. , 22 F.A.L.R. 355, at 356 (FCHR 1999);

accord Qua lander v. Avante at Mt. Dora , FCHR

Order No. 13 - 016 (February 26, 2013),

Collins, supra, Lombardi v. Dade County

Circuit Court , FCHR Order No. 10 - 013

(February 16, 2010), Deschambault v. Town of

Eatonville , FCHR Order No. 09 - 039 (May 12,

2009), and Boles , supra. But, cf, Hogan,

supra.

Johnny L. Torrence v. Hendrick Honda Daytona , Case

No. 14 - 5506 (DOAH Feb. 26, 2015; FCHR May 21, 2015).

26 . If Petitioner is able to prove his prima facie case by

a preponderance of the evidence, the burden shifts to Respon dent

to articulate a legitimate, non - discriminatory reason for its

employment decision. Tex. DepÓt of Cmty. Aff. v. Burdine ,

450 U.S. at 255; DepÓt of Corr. v. Chandler , 582 So. 2d 1183

(Fla. 1st DCA 1991). An employer has the burden of production,

not p ersuasion, to demonstrate to the finder of fact that the

decision was non - discriminatory. DepÓt of Corr. v. Chandler ,

supra. This burden of production is "exceedingly light."

Holifield v. Reno , 115 F.3d at 1564; Turnes v. Amsouth Bank,

N.A. , 36 F.3d 105 7, 1061 (11th Cir. 1994).

27 . If the employer produces evidence that the decision

was non - discriminatory, then the complainant must establish that

the proffered reason was not the true reason but merely a

pretext for discrimination. St. Mary's Honor Ctr . v. Hicks ,

509 U.S. at 516 - 518. In order to satisfy this final step of the

process, Petitioner must Ðshow[] directly that a discriminatory

reason more likely than not motivated the decision, or

indirectly by showing that the proffered reason for the

empl oyment decision is not worthy of belief.Ñ DepÓt of Corr. v.

Chandler , 582 So. 2d at 1186 ( citing Tex . Dep't of Cmty. Aff. v.

Burdine , 450 U.S. at 252 - 256). Ð[A] reason cannot be a pretext

for discrimination Òunless it is shown both that the reason was

fa lse, and that discrimination was the real reason.ÓÑ Fla.

State Univ. v. Sondel , 685 So. 2d at 927 ( citing St. Mary's

Honor Ctr. v. Hicks , 509 U.S. at 515 ) ; see also Jiminez v. Mary

Washington Coll. , 57 F.3d 369, 378 (4th Cir. 1995). The

demonstration of pretext Ðmerges with the plaintiff's ultimate

burden of showing that the defendant intentionally discriminated

against the plaintiff.Ñ Holifield v. Reno , 115 F.3d at 1565.

28 . In a proceeding under the Civil Rights Act, Ð[w]e are

not in the business of adjudging whether employment decisions

are prudent or fair. Instead, our sole concern is whether

unlawful discriminatory animus motivates a challenged employment

decision.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1361 (11 th Cir. 1999) . As established by the

Eleventh Circuit Court of Appeals, Ð[t]he employer may fire an

employee for a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as long as its action

is not for a discriminatory reason.Ñ Nix v. WLCY Radio/Rahall

CommcÓns , 738 F.2d 1181, 1187 (11th Cir. 1984). Moreover,

Ð[t]he employerÓs stated legitimate reason . . . does not have

to be a reason that the judge or jurors would act on or

approve.Ñ DepÓt of Corr. v. Chandler , 582 So. 2d at 1187.

29 . In determining whether RespondentÓs actions were

pretextual, the undersigned Ðmust evaluate whether the plaintiff

has demonstrated Òsuch weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legiti mate reasons for its action that a

reasonable factfinder could find them unworthy of credence.ÓÑ

Combs v. Plantation Patterns, Meadowcraft, Inc. , 106 F.3d 1519,

1538 (11th Cir. 1997).

30 . At all times material to this matter, Petit ioner wa s

65 years ol d , and , as such, was a member of a protected class.

31 . As es tablished abo ve, Petitioner me t the

qualifications for the position of registrar officer and

registrar/admissions coordinator .

32 . Petitioner did not present sufficient evidence to

establish a prima facie case that persons of a different age

were t reated more favorably than he was treated .

33 . Mr. Ferre ll asserted that Mr. Jordan , Mr. Witherspoon,

Mr. McGlockton, and Ms. Smith were younger employees who

received more favorable treatment than he did (i.e. , promotion,

higher pay rate, or a pay raise ) . However, there was no

evidence offered at the hearing to prove the actual age of the

alleged younger employees. 2 /

Conclusion

34 . Petitioner did not meet his burden to show by a

prepon derance of the evidence that Respondent discriminated

against him on the basis of his age.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the F lorida Commission on Human

Relations enter a final order dismissi ng PetitionerÓs

Discrimination Complaint and Petition for Relief consistent with

the F indings of F act and C onclusions of L aw of this Recommended

Order.

DONE AND ENTERED this 5th day of April , 2018 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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 H earings

this 5th day of April , 2018 .

ENDNOTE S

1/ See § 120.57(1)(j) , Fla. Stat . (2017)( f indings of fact shall

be based exclusively on the evidence of record . )

2 / If Mr. Ferrell had presented evidence at the final hearing

regarding the age of the comparator employees , the outcome of

this matter may have been different.

COPIES FURNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399 - 7020

(eServed)

Toney R. Ferrell

Ap artment P101

2125 Jackson Bluff Road

Tallahassee, Florida 32303

(eServed)

David C. Self, II, Esquire

Florida A & M University

300 Lee Hall

1601 Martin Luther King Jr. Boulevard

Tallahassee, Florida 32307

(eServed)

Cheyanne Costilla, General Counsel

Flo rida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Orde r. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.