Florida State University v. Sondel

• Decision Date: 17 December 1996
• Docket Number: No. 94-4330,94-4330
• Citation: 685 So.2d 923
• Parties: 71 Empl. Prac. Dec. P 44,927, 115 Ed. Law Rep. 575, 22 Fla. L. Weekly D20 The FLORIDA STATE UNIVERSITY, Appellant, v. D. Paul SONDEL, Appellee.
• Court: Florida District Court of Appeals

Page 923

685 So.2d 923

71 Empl. Prac. Dec. P 44,927, 115 Ed. Law Rep. 575,

22 Fla. L. Weekly D20

The FLORIDA STATE UNIVERSITY, Appellant, v. D. Paul SONDEL, Appellee.

No. 94-4330.

District Court of Appeal of Florida,

First District.

Dec. 17, 1996.

Rehearing Denied Jan. 30, 1997.

Gerald B. Jaski, General Counsel; Robert B. Jurand, Associate General Counsel, The Florida State University, Tallahassee, for Appellant.

Jerry G. Traynham of Patterson & Traynham, Tallahassee, for Appellee.

SMITH, Senior Judge.

Florida State University (FSU) appeals from a final order of the Florida Commission on Human Relations (Commission) finding that FSU unlawfully discriminated against Appellee D. Paul Sondel (Sondel) by refusing to employ him because of his age. Sondel has cross-appealed the Commission's failure to award back pay and emoluments of employment, and the Commission's failure to award attorney's fees. We reverse on the appeal and, accordingly, find it unnecessary to rule on the cross-appeal.

In June 1992, FSU advertised an employment opening for Resident Housing Coordinator, a position involving administrative and managerial duties in connection with the operation of one of FSU's fourteen on-campus residential halls housing 400 to 600 students. The resident housing coordinator selects, trains and supervises student housing assistants, acts as chief judicial officer of the building, and administers justice for housing infractions. The coordinator also oversees developmental programming, is responsible for the student activity budget, assists in researching information on student residents, and coordinates certain central office functions.

The advertisement for the position stated the qualifications as being a master's degree in an appropriate area of specialization, or a bachelor's degree in an appropriate area of specialization with two years of appropriate experience. The advertisement also stated that a master's degree and university housing experience was essential. It further described the position as a "live-in" position administering housing units for approximately 400 to 600 students.

Sondel, who was 63 years of age at the time, applied for but was not selected to fill the position. The evidence before the hearing officer revealed that the coordinator for FSU's University Relations, Employment and Recruitment Office reviewed the applications for the position and forwarded the thirteen applications meeting the minimum requirements of the position--Sondel's being among those--to the housing office for review by Ms. Phyllis McCluskey-Titus, FSU's Associate Director of University Housing. McCluskey-Titus selected two applicants for telephone interviews. She then granted a personal interview with one of those, Ms. Sara Steyer, 24 years of age, whom she hired for the position. Of the thirteen applicants, only Sondel and one other person were over the age of 40; neither received a telephone call or a personal interview.

Upon receipt of Sondel's petition alleging age discrimination, the Commission initiated an investigation which resulted in a determination of no cause. Sondel's request for a formal hearing was received by the Commission and forwarded to the Division of Administrative Hearings (DOAH). Following an evidentiary hearing, the hearing officer rendered his recommended order finding FSU guilty of age discrimination in violation of the Florida Human Rights Act, sections 760.01--760.10, Florida Statutes, ¹ and more specifically, the provisions of section 760.10 relating to unlawful employment practices. The hearing officer's recommended order directed FSU to cease from its discriminatory activities, and further directed FSU to place Sondel in the position as Resident Housing Coordinator. The Commission agreed with the hearing officer's findings of fact, conclusions of law, and recommendation, and entered its final order requiring FSU to place Sondel in the position as coordinator. This appeal followed.

On appeal, FSU contends that the record does not contain competent, substantial evidence to support a finding of age discrimination upon any theory cognizable under the applicable law. FSU asserts that Sondel based his complaint upon a theory of "disparate treatment" on the basis of age, but that he wholly failed to carry the ultimate burden of demonstrating that he was a victim of intentional discrimination, or that his age was a motivating or determining factor in FSU's decision to hire another applicant. FSU contends that the hearing officer's recommended order failed to make any finding that Sondel's age was a motivating or determinative factor in its failure to hire him, or that FSU intentionally discriminated against Sondel because of his age. FSU emphasizes, among other things, the absence of a finding by the hearing officer that the reasons articulated by FSU for its hiring decision were "pretextual," and that the order, which was accepted by the Commission, is therefore lacking in findings essential to the granting of relief in a disparate treatment case.

FSU further argues that the hearing officer, and the Commission, improperly based their analysis and decision upon a "disparate impact" theory of liability without adhering to the legal standards applicable to that theory, and that the evidence does not warrant the granting of relief under the disparate impact standard.

In response, Sondel argues that he presented a prima facie case, as found by the hearing officer, following which he presented evidence to meet his burden of production as required by applicable case law. He maintains that the hearing officer properly decided the issue of discrimination despite FSU's articulation of legitimate, nondiscriminatory reasons for the hiring decision, because the evidence established that FSU's actions were motivated by a discriminatory predisposition on the part of the hiring official to select a young person for the job. Sondel maintains that the hearing officer analyzed the case under both disparate treatment and disparate impact standards, and that the evidence justifies the relief granted under either theory.

The general purposes of the Florida Civil Rights Act of 1992, as stated in section 760.01(2), Florida Statutes, are

to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state.

Section 760.01(3) provides that the Florida Civil Rights Act shall be construed according to the fair import of its terms, "and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provision involved." Section 760.10, entitled "Unlawful employment practices," so far as it is pertinent here, provides in subsection (1)(a) as follows:

(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 compensation, terms, conditions, or privileges of employment, because of such individual's ... age....

Subparagraph (b) of subsection (1) provides that it is unlawful to "limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, ... because of such individual's ... age...." The statute further provides in subsection (8)(a) that notwithstanding any other provision of the section, it is not an unlawful employment practice for an employer to take or fail to take any action on the basis of age in those certain instances in which age is "a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."

I.

We agree with FSU's contention that the hearing officer analyzed the burden of proof requirements of this case under standards applicable to cases presented under the disparate treatment theory, and that the factual findings contained in the recommended order, which were accepted by the Commission in their entirety, do not support a determination of unlawful discrimination based on disparate treatment.

Under "Conclusions of Law", the recommended order recites that "the petitioner bears the burden of proof in this case", citing McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The order states further, in paragraphs 27 and 28:

27. The Petitioner bears the burden of establishing a prima facie case of discrimination. See, McDonnell v. Douglas, [sic] supra. Once the Petitioner has established a prima facie case by a preponderance of the evidence, the Respondent must articulate some legitimate, nondiscriminatory reason for its actions. See, McDonnell-Douglas, [sic] supra. Once the Respondent has articulated a reason for its actions, the Petitioner must prove by a preponderance of the evidence that the Respondent's articulated reason was not the true reason, but was a pretext for discrimination. See, St. Mary's Honor Center v. Hicks, , 113 S.Ct. [2742] 2747 .

28. The Petitioner must prove that the reason articulated by the Respondent was false and that discrimination was the real reason for the Respondent's actions. See, St. Mary's Honor Center, , 113 S.Ct. at 2752. The foregoing federal standards have been adopted in Florida and are applicable to cases arising under Chapter 760, Florida Statutes. See, Harris[School Board of Leon County] v. School Board of Leon County [Hargis], 400 So.2d 103 (Fla. 1st DCA 1981).

The next paragraph, number 29, unmistakably articulates a finding of a...