Florida Dept. of Community Affairs v. Bryant

• Decision Date: 16 September 1991
• Docket Number: No. 90-1924,90-1924
• Citation: 586 So.2d 1205
• Parties: FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, Appellant, v. Michelle BRYANT, Appellee. 586 So.2d 1205, 16 Fla. L. Week. D2419
• Court: Florida District Court of Appeals

Page 1205

586 So.2d 1205

FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, Appellant, v. Michelle BRYANT, Appellee.

No. 90-1924.

586 So.2d 1205, 16 Fla. L. Week. D2419

District Court of Appeal of Florida First District.

Sept. 16, 1991.

Alfred O. Bragg, III, Tallahassee, for appellant.

Ben R. Patterson of Patterson & Traynham, Tallahassee, for appellee.

ERVIN, Judge.

The Florida Department of Community Affairs (Department), appellant herein, seeks review of a final administrative order rendered by the Commission on Human Relations (Commission), holding that appellant committed an unlawful employment practice by failing to hire appellee, Michelle Bryant, a black woman, as a Planner II, and awarding full affirmative relief to appellee. It is appellant's position that the Commission improperly invaded the fact finder's function by substituting its judgment for that of the hearing officer when it concluded, contrary to the hearing officer, that the Department committed an unlawful employment practice. In addition, the Department urges that the final order is unenforceable, because it was entered more than ninety days after the recommended order was issued, in violation of Section 120.59, Florida Statuates (1987), and because the injunctive portion of the order is unduly vague. We agree that the Commission, contrary to the provisions of Section 120.57(1)(b)10, Florida Statutes (1987), improperly modified findings of fact made by the hearing officer that are supported by competent, substantial evidence (CSE) in the record. Because reversal is warranted under the first point, we find it unnecessary to address appellant's second point.

The record in this case shows that appellee worked for the Department as a Community Specialist I in its Division of Housing and Community Development until September 30, 1987, when that program was transferred and she was laid off. Appellee had worked for the Department since January 1983 and was a permanent employee; therefore, she had priority over other applicants for openings at the Department in the same pay grade. However, if she applied for positions in higher pay grades, she would be treated as an ordinary applicant.

At the time of the layoff, the Department of Administration (DOA) maintained a computer data base containing the names of all those who were qualified in specified employment classes. It used numerical codes to denote the different position classes, as well as subclasses within them. The system worked as follows: A person interested in a particular class of employment would apply for same at DOA, and a DOA analyst would evaluate the application and the applicant's background and make a decision as to what positions the applicant was eligible for. The Planner II class, which is at issue here, had in addition to the general class code, option codes, which indicated persons with specialized backgrounds. Under the system in place in 1987, if a person had a specialized background, he or she would be put in the option class code for that specialty rather than under the generic or general code, and the person would have to specifically ask to be placed under the generic code. State agencies that were then recruiting could order a printed "Certificate of Eligibles" (COE) containing the names of all those who had registered within the class requested. ¹ Although all state agencies use this system for recruitment, the DOA has the sole responsibility for maintaining the system and running it.

When she was terminated, appellee was listed in the DOA's computer data base as a Community Specialist I. Additionally, because Bryant had qualified in 1984 as a Planner II in two special subclasses, Planner II in Intergovernmental Relations, which is associated with the Department, and Planner II for the Department of Health and Rehabilitative Services, she was also listed as a Planner II under those two option codes. She was not, however, listed as a general Planner II.

Four other employees were laid off at the same time Bryant was. One of those employees was Leonard Case, a white male. Unlike Bryant, Case had not attained permanent status at the time of the layoff. However, Case was fully qualified as a Planner II and had registered with the DOA in the general Planner II class.

Some weeks after the September 1987 layoff, a Planner II in the Department resigned from position number 570 in the Division of Emergency Management. ² The Department elected to hire someone from the COE for the general Planner II class to fill the position. It therefore ordered and received the COE on December 3, 1987. Mr. Case's name appeared on the list, as did numerous other names, but Ms. Bryant's name did not. Case was interviewed the following day and immediately offered the job. Case had been recommended not only by the Planner II he replaced, but also by his prior supervisor with the Department. No one other than Mr. Case was interviewed. Case started in his new position three days later. ³

Upon learning that the Department had hired Case for the position, Bryant complained to the Commission on Human Relations, claiming racial discrimination in the Department's failure to consider her for the position. She alleged that the action was in retaliation for earlier grievances she had lodged, and that she was better qualified than Case because she had been with the Department longer. In response, the Department alleged that it could not have considered Bryant because her name was not on the COE. Following an investigation, the Commission denied the grievance for lack of reasonable cause. Bryant filed a petition for formal hearing and the case went before a hearing officer from the Division of Administrative Hearings.

The hearing officer found that Ms. Bryant had proved a prima facie case of disparate treatment, but that the Department had overcome Ms. Bryant's prima facie case by showing that the absence of her name from the COE was a legitimate reason for its failure to hire her. Based upon these findings, the hearing officer recommended that Bryant's petition be dismissed.

Bryant submitted exceptions to the recommended order, particularly attacking the hearing officer's conclusion that the Department had articulated a legitimate reason for its employment decision. Bryant argued that the hearing officer erred when he concluded that rule 22A-3.007(3)(b)1 permits an employer to merely make an appointment if the COE contains three or more names. It was Bryant's position that the rule required the agency to contact all those whose names appear on the COE or register. Because the Department contacted no one other than Case, it had unreasonably interpreted the rule and ignored the state's articulated policy of encouraging open competition for job vacancies.

The exceptions were heard before a panel of the Florida Human Relations Commission, which found merit in Bryant's arguments regarding the use of the COE. The Commission therefore entered an order finding that Bryant had presented a prima facie case, which the Department had not overcome with a legitimate reason, and that the Department had committed an unlawful employment practice justifying an award to Bryant.

This case involves an alleged violation of Florida's Human Rights Act of 1977, Sections 760.01-.10, Florida Statutes (1987). Because this act is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2, federal case law dealing with Title VII is applicable. School Bd. of Leon County v. Hargis, 400 So.2d 103, 108 n. 2 (Fla. 1st DCA 1981).

The ultimate question of the existence of discrimination is a question of fact. Thus, an appellate court's power to alter the lower tribunal's finding in that regard is limited to those findings that are clearly erroneous. Equal Employment Opportunity Comm'n v. Kimbrough Inv. Co., 703 F.2d 98, 100 (5th Cir.1983). Consequently, a hearing officer's finding of no discrimination should only be set aside if that finding is clearly erroneous, or is based on clearly erroneous findings of fact or a mistaken view of the law. Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129 (11th Cir.1984).

The Supreme Court set forth the following burden of proof that must be met by a Title VII plaintiff in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973): The complainant must carry the initial burden of establishing a prima facie case of race discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. After the complainant satisfies this burden, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. If the employer articulates such a reason, the complainant must then be afforded a fair opportunity to show that the employer's stated reason was in fact a pretext. Id. at 802-04, 93 S.Ct. at 1824-25, 36 L.Ed.2d at 677-79. In Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the Court reiterated that the plaintiff always retains the burden of persuasion. Once the plaintiff has established a prima facie showing of discrimination, the defendant need only articulate--it need not prove--the existence of a legitimate, nondiscriminatory reason for its actions. The plaintiff then retains the burden of persuading the court that the offered reason is a pretext and that a discriminatory reason more likely motivated the employer in its actions. Id. at 254-56, 101 S.Ct. at 1094-95, 67 L.Ed.2d at 216-17.

In regard to the issue of whether Bryant established a prima facie case of discrimination, it should be noted that the four factors...