STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BRYON K. EHLMANN, )
)
Petitioner, )
)
vs. ) Case No. 96-2855
)
FLORIDA A & M UNIVERSITY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for final hearing before P. Michael Ruff, duly designated Administrative Law Judge of the Division of Administrative Hearings, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Bryon K. Ehlmann, pro se
4728 Highgrove Road
Tallahassee, Florida 32308
For Respondent: Bishop C. Holifield, Esquire
Avery D. McKnight, Esquire Florida A & M University Lee Hall, Room 300 Tallahassee, Florida 32307
STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether the Petitioner suffered an unlawful employment practice pursuant to the pertinent provisions of Chapter 760, Florida Statutes, and relevant decisional law, by allegedly being the victim of disparate, discriminatory treatment based upon his race (white)
by being denied compensation comparable to black professors of equal or lesser rank, credentials, qualifications and experience.
PRELIMINARY STATEMENT
This cause arose upon the filing of a discrimination claim by the Petitioner with the Florida Commission on Human Relations. The Petitioner alleges, in essence, that he has been discriminated against based on his race (white) by the Respondent, Florida A & M University (FAMU), by being accorded disparate, adverse treatment in terms of his salary versus the salary paid black employees of the same or lessor qualifications. The time limit of 180 days for the Commission to complete its investigation elapsed without a finding concerning cause by the Commission. The Petitioner therefore exercised his right under Section 760.11(8), Florida Statutes, to proceed under Section 760.11(4), Florida Statutes, as if the Commission had determined that there was reasonable cause for a complaint. The Petitioner requested an evidentiary proceeding before the Division of Administrative Hearings and the Petition was ultimately transmitted to the undersigned Administrative Law Judge.
The cause came on for hearing as noticed. The Petitioner presented 73 exhibits, which were admitted in evidence, and two witnesses. The Respondent presented 20 exhibits, which were admitted in evidence, and four witnesses.
Upon conclusion of the hearing the parties elected to obtain a transcript. They also stipulated to an extended briefing
schedule for the submission of proposed recommended orders. Proposed recommended orders were timely submitted and have been considered in the rendition of this Recommended Order.
FINDINGS OF FACT
The Petitioner was hired as an employee of the Respondent, Florida A & M University (FAMU), in August 1988. He had previously worked for UNISYS Corporation in California. He was initially hired as an untenured assistant professor in the Computer Information Systems (CIS) Department of the College of Arts and Sciences (College) of FAMU. The Petitioner now is a tenured associate professor in the same department, employed on a nine-month faculty contract and often on supplemental contracts during summer terms. He now holds a Ph.D. degree in computer science, which he earned in 1992.
The Respondent is a University which is a component of the State of Florida State University System. It meets the definition of "employer" under the pertinent provisions in Chapter 760, Florida Statutes.
The Petitioner maintains that his claim concerning alleged discriminatory failure of the Respondent to adjust his salary to be equivalent to that of his black colleagues, based upon his race, white, is a jurisdictional claim. He maintains that the discriminatory treatment he complains of began from the time he earned his Ph.D. degree in 1992 until the day that he
actually filed charges, because he continually suffered discriminatory treatment in terms of inequitable salary, compared to higher-paid black professors with equivalent or lessor qualifications and experience. He contends that the discriminatory actions against him were continuing during this time period, extending until the filing of his complaint on October 9, 1995, because during this time period his attempts to rectify his salary inequity were continually rebuffed by the University.
Three assistant professors worked on their Ph.D. degrees in the CIS Department at FAMU from August 1988 to April 1991. They were employed in teaching and related duties at the CIS Department at FAMU while they worked on their Ph.D. degrees in computer science at Florida State University. Marion Z. Harmon is a black male, Sara M. Stoecklin is a white female, and the Petitioner is a white male. All were earning nine-month salaries in the mid to upper $30,000 range with the Petitioner earning
$37,491, Dr. Stoecklin earning $38,421 and Dr. Harmon earning
$39,383.
Both Dr. Harmon and Dr. Stoecklin earned their Ph.D. degrees in the spring of 1991. Dr. Harmon, upon receiving his Ph.D., was awarded a salary adjustment. Dr. Stoecklin learned of this and raised an issue of fairness with the administration.
She was told to seek other positions and get job offers as Dr. Harmon had, so as to establish her "market value." She produced
the required job offer from her previous employer, Eastern Tennessee State University. Through their "market equity adjustments" of approximately $10,000 each (effective August 1991), Dr. Harmon's salary was raised to approximately $50,000 and Dr. Stoecklin's salary to a little over $48,000.
The Petitioner contends that the "market equity increases" given to Drs. Harmon and Stoecklin in 1991 were given because they had earned their Ph.D. degrees. This is not clearly the case, however. Rather, because they had received their Ph.D. degrees their utility as professors was more marketable and, coupled with the offers they received from other institutions, prompted FAMU to make a counter-offer in the amount of the so- called "market equity increases." Moreover, although there is no written policy whereby salary raises, other than across-the-board increases granted by the Legislature, must be obtained only through the means of countering job offers from other institutions, there is an unwritten practice of non-routine salary increases being obtained in this offer, counter-offer, or "bidding" fashion. However, there is no actual requirement that a professor, including Petitioner, can only obtain an equity adjustment to his or her salary in this fashion, and other means have certainly been used.
In the academic year 1991-92, Dr. Harmon received tenure and a promotion to associate professor. His salary was likewise
increased to $52,625 for that academic year. The Petitioner's salary remained at $37,945.
In April 1992, the Petitioner earned his Ph.D. degree. On April 9, 1992, he requested a meeting with Dr. Aubrey M. Perry, Dean of the College of Arts and Sciences. The Petitioner wanted to discuss his salary situation and his future at FAMU with the Dean. In their May 5, 1992, meeting, the Petitioner asked for a salary adjustment similar to that given to Dr. Stoecklin and Dr. Harmon when they received their Ph.D. degrees. He informed Dean Perry that he could not remain at FAMU at his current salary.
He was told by Dean Perry that his earning of the Ph.D. was commendable, his contributions to the CIS Department were valued, and although funds were very limited, Dean Perry promised to do his best to effect a salary adjustment. Dean Perry never instructed the Petitioner that in order to receive a salary adjustment he had to seek a job offer from another school. In fact, Dean Perry testified that if the Petitioner had presented an offer from another institution, there was still no guarantee that it would be matched by FAMU and that such an offer would not be required for a person to receive a salary adjustment. Dean Perry acknowledged, moreover, that if the Petitioner had his recommendation for a salary adjustment, the Petitioner could reasonably expect it to be accomplished.
After earning his Ph.D., the Petitioner applied for faculty positions at other schools and interviewed for several, at least by telephone. He had one or more informal offers of positions, for instance at the college where he formerly taught before coming to FAMU. However, he chose not to pursue any potential employment positions with other institutions because of his wife's job in Tallahassee, his children's school enrollment, his purchase of a home, and other personal reasons. Among those other reasons was the prospect, he believed at the time, of a significant salary adjustment if he stayed at FAMU. None of the so-called "rejection letters" in evidence indicate that he was lacking in any way in his credentials or qualifications. Many of them were because his area of research and expertise did not fit the needs of the other school. Indeed his entire tenure at FAMU reflects that his performance has been good and his evaluations have been favorable. He ultimately received an award for meritorious teaching skills and performance. However, despite the Dean's asserted support for a salary adjustment for him, the Petitioner received no salary adjustment during the 1992-93 academic year.
In the 1992-93 academic year, the Petitioner, Dr. Stoecklin and Mr. Malcolm Barnes, who is black, all applied for tenure. Dr. Stoecklin and the Petitioner also applied for the rank of associate professor. Mr. Barnes was already an associate professor, although he did not hold a Ph.D. He had also been
serving as the CIS Department chair since 1990. Department chairs at the college are elected by their faculty-member colleagues in their departments and serve a three-year term, with a $1,500 supplement to their salary for their administrative duties, as well as a reduced teaching load. In April 1993 Mr.
Barnes was voted out as the chair of the Department by his colleagues, and Dr. Harmon, the associate professor referenced above, was elected as chair of the Department for a three-year term beginning in August of 1993.
In approximately that same period of time, in the spring of 1993, both Dr. Stoecklin and Mr. Barnes were denied tenure. Dr. Stoecklin was also denied her promotion to associate professor. The Petitioner was awarded tenure and promotion to associate professor in May of 1993. The Petitioner was granted no salary increase then as a result of his promotion and gaining of tenure. He was thus still earning his original salary of
$37,491 per year at a time when Mr. Barnes maintained his salary of $56,288 a year as a non-Ph.D., associate professor who had just been denied tenure. Dr. Harmon was paid $52,625 as a newly- tenured associate professor.
Upon failing to gain tenure and being voted out as Department chair, Mr. Barnes was accorded a new position, or at least new responsibilities, as a "program director" in the Department. This is not an official position on the Department's roster of positions. It was, rather, a creation of new duties
for him, as shown by Dr. Harmon's testimony. Mr. Barnes is still carried on the faculty roster as an associate professor. Faculty who fail to earn tenure are generally terminated. Mr. Barnes was not terminated, but rather was given this new position or "role" as Dr. Harmon described it. This favorable treatment of Mr.
Barnes initially may have been based upon the fact that Mr. Barnes had been an employee and faculty member for approximately
20 years. It may be that an attempt was being made by the administration of the University to recognize his long, faithful service, in creating new duties for him in an administrative capacity, to avoid the onus of having to terminate him for failing to gain tenure. Inferentially, Mr. Barnes' salary probably was higher than the Petitioner's salary level, even when the Petitioner was hired in 1988, due to Barnes' long service with FAMU. However, the large differential between their salaries was maintained and even widened after Petitioner became an associate professor and after he earned his Ph.D. and tenure.
Dr. Stoecklin, on the other hand, was denied both tenure and a promotion. She thereupon took a one-year leave of absence and threatened legal action against the Respondent, feeling that she had been denied tenure because of being a white female. This dispute was eventually resolved, apparently by her being granted tenure, but she was never granted a promotion with any related raise. She was not required to change any aspect of her performance, credentials, or qualifications in order to gain
tenure, nor was she ever given a reason for the initial, approximate, one-year denial of tenure.
In April of 1993, Petitioner again met with Dean Perry. The Petitioner requested a salary adjustment to make his salary equitable with that of his colleagues. Dean Perry told him at this meeting that he would support his request, that the Petitioner should make a written request, and that the Petitioner should stop seeking to leave FAMU as his services were valued there and Dean Perry wanted him to stay. The Dean also informed him that his promotion to associate professor would put him in a good position to receive a substantial salary increase.
Following that meeting, on or about April 23, 1993, Dean Perry approved a three-year grant proposal submitted by the Petitioner. In that grant proposal, the Petitioner had budgeted his salary at $50,000 for the first year, with an increase in later years of the three-year grant period. The Petitioner had previously discussed with Dean Perry his reluctance to engage in such a long-term grant program at his low salary of $37,491 per year. Upon his submission of the grant proposal with the $50,000 initial annual salary attached, no opposition was expressed by the Dean, but that salary was never awarded.
Upon receiving his promotion to associate professor and his grant of tenure in May of 1993, the Petitioner followed Dean Perry's advice and made a written request for a salary adjustment by memorandum dated May 24, 1993, addressed to his Department
chair. The Petitioner reasonably anticipated a significant salary adjustment for the upcoming 1993-94 academic year, based upon the Dean's assurance in the April 1993 meeting. The Petitioner believed that the Dean's authority over the large budget of the entire College of Arts and Sciences, his approval of the Petitioner's grant proposal, and the Petitioner being awarded tenure and promotion, when other higher-salaried faculty had been denied tenure and promotion, put the Petitioner in a good position to receive a significant salary raise. Because of this belief, the Petitioner suspended discussion with other institutions about potential job offers and took his house off the market, planning to stay at FAMU.
Sometime in mid-1993, the FAMU administration again increased Dr. Harmon's salary as a result of an offer he presented to them from Winston-Salem State University. Dr. Harmon's salary was thus raised from $52,625 to $58,000. The Petitioner's salary still remained at $37,491.
In August 1993 a new, black associate professor, Dr. Patrick Bobbie, was hired. His starting salary was set at
$62,000. Dr. Bobbie had 11 years less experience in private industry and three years less teaching experience then did the Petitioner at that time.
Certain faculty salary increases were announced in September of 1993 for the 1993-94 academic year. The Petitioner received only the standard across-the-board raise of
approximately nine percent due to his promotion and received no pay equity increase of the type he and Dean Perry had discussed. The across-the-board promotion increase brought his salary to
$41,427 per year at that point. Both Mr. Barnes and Dr. Harmon received increases at that time bringing their salaries to
$58,332 and $59,740 annually, respectively.
After not receiving the salary increase he expected with the September 1993 announcement of salary increases for the academic year 1993-94, the Petitioner scheduled another meeting with Dean Perry during September 1993. Once again, the Dean agreed that Petitioner's salary was too low and he assured the Petitioner that he would try to remedy that situation. However, he also told the Petitioner that funds were not available to give him an increase beyond the nine-percent promotional raise amounts that month. The Dean told the Petitioner to put his request in writing and have the Department chair endorse it and the Dean would see that it was presented to the University administration. The Petitioner wrote the memo and delivered it to the Dean's office after having it endorsed by Dr. Harmon, his Department chair. The memo was dated September 30, 1993, and was delivered on or shortly after that date.
After making contact with the Dean's office on or about October 17, 1993, the Petitioner was informed that the Dean had apparently misplaced the memo and no action had been taken. The Petitioner immediately re-submitted it on that date. Dean Perry
promised to act on the Petitioner's request upon returning from a trip. On November 29, 1993, he informed the Petitioner that he had sent the memorandum to the administration with a recommendation for positive action. However, as a result of Petitioner's inquiry on January 10, 1994, he learned from the Dean's secretary that the Dean had not yet written the required letter with his recommendation. As a result of this inaction, the Petitioner decided to engage in a salary equity study (SES) for that academic year of 1993-94. The SES was submitted on February 10, 1994, in accordance with the Florida Board of Regents-United Faculty of Florida (UFF) collective bargaining agreement. In the SES, the basis for the claim of sexual or racial inequity must be drawn from a self-study process in which the employee compares himself or herself with counterpart employees. The counterparts must meet specific criteria and the comparison must be based on specific criteria set forth in published guidelines. The underlying principle of the SES, as indicated by Section 240.257, Florida Statutes, is that employees in similar positions with similar credentials and performance should make similar salaries, independent of their sex or race.
The Petitioner was earning $41,427 at the time of his SES. His main counterparts in the study, Dr. Harmon, Mr. Barnes, and Dr. Bobbie, were then earning $59,740, $58,332 and $62,000, respectively. When he initially did not get a favorable decision, the Petitioner allowed the self-study to run its course
through the internal university appeal process. The university appeal was to an appeals committee of two members appointed by the president, one of whom was black and one of whom was white.
Through the course of the self-study, two faculty committees, the University Salary Equity Committee and the President's Appeal Committee, as well as Dean Perry and Dr. Hogg, the Provost, all reached the conclusion that the Petitioner's salary was inordinately low in comparison with his colleagues. The administrators maintained, however, that the inequity was not related to race, but purportedly resulted from such factors as "compression" or "inversion," a phenomenon where later hired employees in equivalent positions, make more money than their earlier-hired counterparts because salary rates or levels have increased. In his decision Dean Perry acknowledged that the Petitioner's market value for one of his rank and experience in his discipline was much higher than his current rate of pay reflected. The Dean informed the Petitioner that he would recommend that his salary be adjusted to reflect his current market value. Dr. Hogg, the Provost, informed the Petitioner in a letter of early May 1994 that the Appeals Committee had urged that Dean Perry review the Petitioner's salary and make the best adjustment possible during the 1994-95 academic year, which commenced in August of 1994, assuming that sufficient funds were available. That letter indicated that Dr. Hogg concurred with that decision.
The policies or regulations provided the Petitioner by the Respondent, during the salary equity study, indicated that any equity adjustment awarded would be effective on the same date as other salary increases for that academic year. Because of this and because the SES committee recommended that his salary be adjusted (albeit not for reasons of racial discrimination, in the view of the committees) and because of the assurances given him by Dean Perry and Provost Hogg, it was the Petitioner's reasonable expectation that he would receive a salary adjustment as a result of his SES on November 1, 1994, during the 1994-95 academic year. That was the date the Legislature had mandated for any faculty salary increases.
In addition to funds allocated by the Legislature for faculty salary increases, effective November 1, 1994, Dean Perry announced on June 30, 1994, that additional funds were available to give all associate and full professors at FAMU a $1,000 "market equity increase." This increase was to be effective August 8, 1994, and, as established by Mr. Rollins’ testimony, was the result of essentially "left over funds," that is, salary money that was not already scheduled to be spent but, as surplus, was to be used to give faculty members an increase. Mr. Rollins testified that the administration had considerable flexibility in shifting funds, including to salary accounts, which had been unexpended for other purposes. Consequently, it was decided to give all associate and full professors a $1,000 "market equity
increase." The recipients of this increase were not required to present offers of employment from other institutions in order to establish their "market value." Many of the recipients of the increase, such as Drs. Harmon and Bobbie and Mr. Barnes, were already paid much more than the average salaries for professors of their rank in their disciplines.
The Petitioner received notice of the $1,000 raises and immediately wrote a letter to Dean Perry reminding him of his inequitable salary situation and attaching Dr. Hogg's letter containing his assurance of a salary adjustment. The Petitioner was concerned that the unprecedented, $1,000 raises indicated that extra funds had become available at the beginning of the 1994-95 academic year and yet, even on November 1, 1994, the Petitioner did not receive the SES-related, market equity adjustment assured him by Dr. Hogg and Dean Perry.
Additionally, in August of 1994, Dr. Deidre Williams was hired. She is black and was a recent Ph.D. graduate. She had no research publications to her credit at the time of hiring and had at least 10 years less teaching experience and 10 years less industry experience than the Petitioner. She was not tenured. As reflected by Dr. Harmon's testimony, she had been hired without a faculty search or advertisement in outside publications, such as professional journals. She was hired as an assistant professor, a rank below that of the Petitioner, who at the time was an associate professor. She was hired at a starting
salary of $55,000 with a reduced teaching load compared to the Petitioner. Dr. Harmon, the Department chair, testified that it was his policy since he became Department chair in approximately August of 1993, to allow newly hired faculty with Ph.D. degrees reduced teaching load, for instance, two classes instead of four classes, in order "to get their research off and running." She was hired at approximately $13,000 above Petitioner's salary, and at over $11,000 above the national average salary for entry-level assistant professors at public universities. The average salary in a four-year public institution for a new assistant professor in computer and information sciences was $43.612 as of September 1, 1994, as shown by statistical evidence accepted and referenced by both parties in this proceeding.
Dean Perry testified that the reason Dr. Williams was hired at $55,000 for a nine-month salary was to match an offer she had received from another institution. Neither the Dean nor any other witness testified concerning the reason it was necessary to match another offer she had purportedly received from another institution in order to hire her. In fact, no evidence was offered concerning whether her qualifications were equal to or superior to any other applicant, nor did Dean Perry or any other witness state that she was hired by matching an offer because of her superior qualifications for the untenured, entry-level position.
Dean Perry’s testimony, and evidence adduced by the
Petitioner, shows that the Respondent believes that black professors with Ph.D. degrees, even entry-level professors who are recent graduates, must be hired at substantially higher salaries than their white counterparts and that black professors with Ph.D. degrees command a higher salary in the nationwide marketplace for professors with Ph.D. degrees in that discipline, because they are scarcer. Dean Perry in his testimony, however, did not claim that the university, the college, or the Department had any reason to select and hire black professors in order to promote any remedial "affirmative action-diversity" related goal. When Dr. Williams was hired, there were already five black faculty members on the full-time CIS faculty of ten professors, and a substantial majority of black professors in the College of Arts and Sciences. Therefore, there has been no showing of any market-related or other necessity for the Respondent to hire black professors with Ph.D. degrees at substantially-higher salaries, than it pays its white faculty members.
This is especially true in light of the testimony of the Respondent's witness, the Department chair, Dr. Harmon, establishing that funds are not allocated to advertise open faculty positions in publications such as professional journals. Inferentially, no nationwide or regional search is conducted in order to fill vacancies. This keeps the pool of potential applicants for positions very small, according to Dr. Harmon less than twelve for a recent opening. Dr. Harmon testified that some
of the applicants are referrals from colleagues or members of the administration. This evidence shows that the University is not really competing in a regional or national market for these professors with Ph.D. degrees and thus further illustrates that there is no economic necessity that black professors with Ph.D. degrees have to be hired or have to be hired at a substantial salary over non-black professors with Ph.D. degrees.
Rather, the evidence shows, through Dr. Harmon's testimony, that there is a glut of computer science professors with Ph.D. degrees on the open market. He described, for instance, a vacancy at the University of Florida which drew approximately 500 applicants. Logically, therefore, a large number of qualified applicants could be obtained for these positions (and likely hired at salaries more near the national average, regardless of race), if the Respondent was not of its own volition limiting the applicant pool. Dr. Harmon testified that assistant professor, entry-level positions are typically initially offered at a salary of "$45,000 negotiable" and that he recently offered one at $42,000 to $45,000, which is near the nationwide average salary for such entry-level positions.
Because these positions are not widely advertised, a substantial number of potential applicants are not aware of these positions and do not apply. Otherwise, it is reasonable to infer that, in such a market, glutted with computer science Ph.D.s, many qualified applicants, even if non-black, could be found who would
take the assistant professor positions for the salary initially offered or at or near the nationwide average for such positions.
Therefore, if black professors with Ph.D. degrees do command a higher salary on the national market as the Respondent claims, the Respondent can have no economic incentive for hiring them. In fact, there is an economic dis-incentive for this pattern of salaries awarded, since, if the University competed in a meaningful way in the national market for computer science Ph.D.s, it could undoubtedly find well-qualified candidates, regardless of race, at lower entry-level salaries and thus have more funds to address salary inequities of employees such as the Petitioner. Significantly, Dean Perry testified that no white faculty members had been hired into the Department in tenure- earning positions in the past five years.
Although Dean Perry testified that occasionally incumbent faculty members apply for such positions and that the Petitioner could have applied for the positions himself, the evidence shows that the open positions involved were for untenured, assistant professors. It is not reasonable to assume that there was any incentive for the Petitioner, already a tenured, associate professor, to apply for a lower-ranking position as an untenured, assistant professor, or even for an equal associate professor position, especially when he had been told that his salary equity problem would soon be adequately addressed.
In early September 1994 the Petitioner wrote another letter to Dean Perry reminding him of his substantial salary inequity and again requesting his help. The letter pointed out to the Dean that the average, nationwide salary for an associate professor in computer and information sciences at four-year public universities was approximately $51,588, according to a generally-accepted survey. In a meeting on November 2, 1994, Dean Perry informed the Petitioner that he could not recall receiving that letter so the Petitioner sent him a letter dated November 18, 1994, complaining that the new assistant professor in the Department was hired without the benefit of a faculty search and at a salary significantly above market value. The national average salary for a new assistant professor in this discipline was $43,612 for 1993-94, more than the Petitioner’s associate professor salary. The Petitioner complained that while the inequity in his salary had not been addressed due to a purported "lack of funds," the University did find the funds to hire the new assistant professor, who is black, at $55,000.
In the meantime, on October 24, 1994, the Petitioner was notified of a salary increase for the 1994-95 academic year. These legislatively-mandated raises were to be effective November 1, 1994. The Petitioner received no market equity adjustment related to his salary equity study. Instead, he was paid a $600 across-the-board increase, a discretionary increase of $1,170, and the $1,000 "market equity increase" that had been granted,
effective August 8, 1994, to all associate and full professors, regardless of the salary they were then earning or their salary equity situations.
The Petitioner received no "salary compression increase" at this time, and, indeed, under the University policy did not qualify for one since he would have to have been employed for seven full years before he could qualify for a compression increase. These salary adjustments, announced in August and October, 1994, raised the Petitioner's annual salary to $44,197, effective November 1, 1994. The gap between this salary and his black counterparts in the Department widened. Dr. Harmon's salary became $65,733 annually or $21,536 more than the Petitioner’s, where there had formerly been an $18,313 difference. The gap between the Petitioner's salary and that of Mr. Barnes, who was raised to $61,798 per year, increased from a difference of $16,905 before November 1 to $17,601 after November
Dr. Bobbie, also an associate professor, was raised to
$63,600 (from $62,000), resulting in a gap between his and the Petitioner’s salary of $19,403.
The Petitioner tried again to get Dean Perry and Provost Hogg to correct his salary inequity. He expressed his sentiments in a letter to the Dean and Dr. Hogg on October 29, 1994. He noted therein that discretionary salary actions taken for other individuals indicated that funds were available to have given the adjustment previously promised by Dean Perry and Dr.
Hogg. He advised Dean Perry, Dr. Harmon, and Dr. Hogg that, in addition to the situation involving Dr. Williams, hired at a salary of $55,000 in August of 1994 as a relatively- inexperienced, assistant professor, a discretionary raise had been given to black faculty member, Mr. Barnes, an associate professor, who was already making more than $60,000, with no tenure or terminal degree. Mr. Barnes had recently been denied tenure and voted out as Department chair by the faculty, based on performance. He was not recommended for an increase by the new Department chair, Dr. Harmon and, because of lack of experience was limited in the courses he could teach. Moreover, a discretionary raise had been given to another black, department faculty member, Ms. Johnson, who was being paid more than $55,000 for a substantially-reduced workload. She did not then have a terminal degree and taught no courses. She only had research duties. The Petitioner thus advised them of his resultant belief that he was being discriminated against.
A meeting was held on November 2, 1994, between the Petitioner and Dean Perry. Dean Perry assured the Petitioner that he would schedule a meeting with the President to seek approval of an increase in Petitioner's salary. They discussed a
$10,000 increase, but no promises as to an exact figure were made. Later that day, the Dean called the Petitioner and informed him that a meeting with the President was set for November 9 and he would be notified of the outcome. The
Petitioner called the Dean's office on November 15 and then encountered the Dean on November 21, both of which contacts led him to believe that nothing had been done on the issue.
In the meantime, the College of Arts and Sciences Teacher Incentive Program (TIP), through its award committee, recommended the Petitioner to Dr. Hogg for a $5,000 teaching excellence award on November 16, 1994. The Petitioner, however, did not receive this award during the 1994-95 academic year.
Dean Perry wrote a letter to Dr. Hogg on November 22, 1994, finally requesting a salary adjustment of $5,000 for the Petitioner. The Dean made no mention that this salary adjustment had been promised to be an equitable adjustment, resulting from the SES done by the Petitioner. In fact, Dean Perry assured Dr. Hogg that the request was not related to the previous SES. In recommending the $5,000 increase to Dr. Hogg, the Dean declined to compare the recommended salary for the Petitioner to that of his black, associate-professor colleagues, Dr. Harmon, Dr. Bobbie, and Mr. Barnes, nor, for that matter, even to assistant professor Dr. Williams, the black, recent Ph.D. graduate. Instead, he compared it to the white assistant professor, Dr. Stoecklin. This fact is established by Dean Perry's somewhat reluctant testimony and Petitioner's exhibit 73 in evidence.
This shows the base salaries in the Department before the January 1, 1996, increases, and shows that the Petitioner's salary on November 22 would have been $44,197, with Dr. Harmon's at
$65,733, Dr. Bobbie's at $63,300, Mr. Barnes at $61,798, assistant professor Dr. Williams at $55,000, and white assistant professor, Dr. Stoecklin at $48,921. The $5,000 increase recommended by Dean Perry (as he finally acknowledged in testimony) was only comparable to the salary of Dr. Stoecklin, the white, tenured, Ph.D. assistant professor, who, even after the January 1, 1996, increases, was only paid an annual salary of
$50,297. It is apparent that in presenting a salary recommendation to Dr. Hogg, Dean Perry chose to ignore the equity comparisons the Petitioner had made in his SES with his black counterparts and other higher black faculty salaries, apparently believing it appropriate to compare his salary to that of his white colleague, a lower ranking professor, Dr. Stoecklin.
It is significant that, although the Respondent references the original market equity increase given to Dr. Stoecklin shortly after she earned her Ph.D. degree in 1991, (after a similar increase to Dr. Harmon), as indicating that white professors in the Department were treated equitably compared to black Ph.D. professors and that, therefore, the Petitioner's salary increases were retarded because of his failure to obtain outside offers which would establish his "marketability" the unrefuted evidence shows that after receiving that increase Dr. Stoecklin received no other salary increase until the January 1, 1996 raises. Even then she was still approximately $5,000 below the salary of equal-ranking, but less-
experienced, assistant professor Dr. Williams, who was hired much more recently, in August of 1994, at $55,000 annual salary.
Moreover, upon earning her Ph.D. and being granted the raise, she was then denied tenure for unexplained reasons for approximately one year and has never been given a promotion. There is no evidence that her performance is other than satisfactory. She has twenty-five years of relevant experience, eight years at FAMU, and more than twelve years' teaching experience. She has been quite effective in obtaining grants and has published comparable papers and received better teaching ratings than most faculty members. She was finally given a raise to a level comparable to that of Dr. Williams in August, 1996, during the pre-hearing portion of this proceeding. Under the circumstances, she cannot serve as an exemplar of equitable salary treatment of white professors in the Department compared to black Ph.D. associate professors or even assistant professors.
The absence of the expected SES-related salary adjustment in the salary increase notification received by Petitioner on October 24, 1994 and the 30-day filing deadline from the time of an action giving rise to a grievance caused the Petitioner to file a grievance on November 23, 1994. This related to the non-discrimination provision in the Florida Board of Regents - United Faculty of Florida collective bargaining agreement, pursuant to which the grievance was filed.
On December 19, 1994, Dr. Harmon wrote a letter to Dr.
Frederick S. Humphries, President of FAMU, recommending that the Petitioner receive an immediate $10,000 salary raise, retroactive to the date he earned his Ph.D. Indeed, to his credit, Dr.
Harmon had previously consistently supported the Petitioner's request for a salary adjustment in earlier communications with the administration. He did not have authority to make the decision, however. He never conditioned that support on a requirement that the Petitioner "prove his marketability" by obtaining a job offer from another institution. Both he and the Petitioner testified that they had discussed the possibility of the Petitioner seeking an outside job offer as a means of cajoling the administration into granting a salary increase, but Dr. Harmon never directed the Petitioner to seek such an offer and testified that he had not actually suggested it to him.
On approximately January 17, 1995, the Petitioner received notice of Dr. Hogg's response to Dean Perry's November 22, 1994, letter recommending the $5,000 equity increase. Dr. Hogg denied the requested salary increase, referencing lack of available funds, rather than lack of a competitive outside salary offer, as the impediment to granting the raise. Dr. Hogg's letter expressed that nothing could be done in the 1994-95 academic year, but another attempt at adjusting his salary in the 1995-96 academic year would be made.
Soon thereafter, on January 31, 1995, the Petitioner presented his grievance in a "step one" grievance meeting with
Mr. David M. Voss, President Humphries' representative for contract administration, and the Respondent's representative for the step-one grievance proceeding. The basis for the Petitioner's grievance is consistent with his position in his complaint and petition filed with the Florida Commission on Human Relations in this proceeding. He presented statistical evidence in his grievance proceeding, and in this proceeding, showing the inequity between his salary and the salary of Dr. Harmon, Mr.
Barnes, and Dr. Bobbie, which had been made worse during the course of the period of time when the Respondent acknowledged the inequity and had made assurances to try to re-address it. The Petitioner also presented statistics in his grievance proceeding, and in the instant proceeding, which showed that actions by the Respondent with regard to hiring and salaries, from 1991 to 1996, had aggravated significant differences between the salaries of black and non-black Ph.D.s generally and associate professors in the CIS Department in particular. These statistics show, for example, that black Ph.D.s on the average were paid over $16,000 more than non-black Ph.D.s and black associate professors were paid an average of $21,000 more than non-black associate professors. See, for instance, Petitioner's exhibit 52B.
The University maintained through the grievance decision process and in the instant proceeding that race was not a factor in the differentials between the salary of the Petitioner and those of his black colleagues, although it did
rely in the grievance process and in the instant proceeding on a purported economic, market value reason for the significantly- higher salaries paid to black faculty members. Specifically, the Respondent's grievance decision at step one of the process states that:
In the grievant’s discipline . . . race and gender affect salaries. The scarcity of black male and especially black female Ph.D.'s [sic] contributes to salary differentials. . . . Blacks who hold a Ph.D. in grievant’s discipline do command a higher salary. . . .
These statements were concurred in by Dean Perry in his testimony. He testified essentially that blacks are hired at the higher salaries they command for market reasons. That is, the University must pay blacks who hold Ph.D.s in computer science significantly higher salaries in order to hire them and retain them in competition with other institutions and therefore, that there is very little discretionary money to raise the salaries of equally qualified and deserving incumbent whites or non-blacks.
He also testified that that should not lower the Petitioner’s expectations, although in his communications with the Petitioner in the last several years concerning the Petitioner's salary complaint, and in his testimony, he acknowledged that there was a continuing inequity in the Petitioner's salary verses his black colleagues. In the "step one" grievance decision and in the SES decision, the University made assurances to the Petitioner that it would effect an
equitable adjustment in his salary. This had not been done through February of 1995. The only adjustments granted to the Petitioner since earning his Ph.D., tenure, and promotion to associate professor, in 1992 and 1993 were his promotion increase, the $600 across-the-board increase, a discretionary increase of $1,170, as well as the $1,000 "market equity increase" given to all associate and full professors on the faculty, irrespective of salary circumstance, as of August and November 1994. The resultant continuing and widening pay inequity is reflected in the above findings.
Upon the University's rejection of the Petitioner's grievance in its step-one decision, the Petitioner appealed to a "step two" grievance decision process, which was presented on April 20, 1995, to Ms. Cynthia Vickers of the Office of Human Resources of the Board of Regents. In his argument at the step- two grievance meeting the Petitioner argued that "compression and inversion" as a factor could not explain the large differential between his salary and those of his black colleagues since he had not been employed at the University long enough to qualify for a compression increase and too large an inequity had already occurred to be explained by this reason. Further, there was no proof of any concrete pay plan showing maximum and minimum rates for the relevant positions which might show a legitimate reason why later-hired colleagues were paid so much more. Moreover, Dr. Harmon started in 1990-91 with a salary only $2,000 or so above
the Petitioner's and Mr. Barnes was hired well before the Petitioner. Thus compression/inversion cannot explain their large differentials compared to the Petitioner's salary. The Petitioner presented the same data he had presented at the step- one meeting and which he also presented in evidence in this proceeding, showing his disparate treatment as to salary.
Additionally, evidence he presented at the step-two grievance meeting and also in the instant proceeding shows the Oklahoma State University survey information on faculty salaries nationwide by rank. These statistics were not refuted by any evidence offered by the Respondent nor were they disputed. These and other statistics in evidence show that the majority of black, associate professors in the College of Arts and Sciences (22 out of 31) earn above the Oklahoma State University survey average for associate professors in that discipline, and also show that every non-black associate professor in the College of Arts and Sciences (14 out of 14) earn below that average. The Oklahoma State University salary survey information was acknowledged as authoritative particularly in Mr. Rollins testimony.
The Petitioner's step-two grievance decision was issued by the Board of Regents' (BOR) committee on or about June 13, 1995. It incorporated a $5,000 salary increase and new contract from the University which brought the Petitioner's salary to
$49,197 per year. This decision described the adjustment as a "good faith effort to ease the acknowledged salary differences."
The Board of Regents' decision in discussing the University's position stated:
Although it acknowledges there is inequity between grievant and his peers . . ., the University's position is that this salary disparity is due to the discipline's national market value for black males and females with terminal degrees.
The Petitioner responded in writing to the BOR's step- two decision claiming, as before, that the $5,000 increase accorded him as a result of the grievance process was inadequate to address his salary inequity and reiterating his argument that race had been and was a significant factor in his original and continuing salary inequity situation. He requested an appeal to arbitration from his United Faculty of Florida representative or committee. The statewide United Faculty of Florida committee, pursuant to the Board of Regents/United Faculty of Florida collective bargaining agreement voted to appeal the BOR's step- two grievance decision to an arbitration process. The Board of Regents/United Faculty of Florida collective bargaining agreement limits the ability of an arbitrator to award back pay or to assess penalties for discrimination. Inasmuch as some salary increases had finally been granted to the Petitioner as a result of his grievance and a significant teaching award (the TIP award) had been recommended for him (although not yet awarded), the United Faculty of Florida committee decided, as is its right under the collective bargaining agreement, not to pursue the arbitration process any longer. This was because of the cost
involved and because the Petitioner would still be free to pursue his dispute before the Florida Commission on Human Relations (FCHR).
On August 4, 1995, the Petitioner filed a complaint with the FCHR alleging continuing salary discrimination based upon his race. In that same month, Dr. Clement Allen who had recently earned his Ph.D. was hired as an untenured, assistant professor at a salary of $52,000. Dr. Allen is black. The Petitioner's salary at this same time was only $49,197.
On January 1, 1996, faculty members were granted across-the-board increases by the Legislature and the Petitioner was given a new contract by the University that provided for a
$4,440 "other salary increase" as well as a $1,988 "salary compression increase." This last was because the Petitioner had finally qualified for a compression increase as he had by then been on the faculty for the required seven years. These increases brought the Petitioner's salary to $55,625, equivalent to the salary of Dr. Williams, the black, untenured, assistant professor, who had been hired in August of 1994 at a salary of
$55,000.
Later in March 1996, the Petitioner was finally given his $5,000 "TIP" award for teaching excellence (not an actual salary equity adjustment), which had been recommended in 1994, but never awarded. This made his salary $60,625 per year, which was his current salary at the time of the hearing. There is no
evidence to show that the Petitioner's black colleagues Mr. Barnes, Dr. Bobbie, Dr. Harmon, Dr. Williams, (or Dr. Allen) had received any teaching awards to achieve their current salaries which are $63,883, $65,225, $68,141 and $55,625. Dr. Allen, hired as a new assistant professor at $52,000 was apparently no longer on the payroll of the CIS Department at this time in 1996.
The un-refuted evidence shows, and there is no dispute, that the Petitioner's performance was consistently excellent during his tenure at FAMU and particularly after earning his Ph.D. His excellence in teaching was recognized, his research papers were accepted at international conferences, and his overall performance was judged excellent by the administration at all pertinent levels. Indeed, in his conversations with Dean Perry after he earned his Ph.D. concerning his salary expectations, Dean Perry urged him to remain at FAMU.
Mr. Rollins testified for the Respondent, as Assistant Vice President for Academic Affairs, to the effect that in the last several years more flexibility and discretion had been accorded the University, presumably by the Legislature or Board of Regents, to shift funds from one category to another, such as from expenses to salaries. This was in the course of his testimony explaining how the $1,000 "market equity increase," from "surplus" salary funds, was awarded, effective August 8, 1994, to all associate and full professors. Nevertheless, during this period, when Mr. Rollins described the increased flexibility
in shifting funds among categories, including awarding unused salary funds for such a general discretionary pay increase for faculty members, the Petitioner was still being denied a salary equity adjustment purportedly for "lack of funds" according to the information he was provided by Dean Perry and Dr. Hogg. This was at the same time that more advantageous compensation treatment was accorded certain black faculty members. Mr.
Barnes, for instance, after being denied tenure was nevertheless retained as a generously-paid associate professor, rendered immune from tenure requirements, and was given a reduced teaching load in return for duties, at one time as much as fifty percent of his time, of an unknown nature in President Humphries' office. The specifics of these duties were unknown to his Department chair, Dr. Harmon.
Ms. Thorna Humphries was paid a full salary as an assistant professor during the 1995-96 academic year during the time she was on an approved educational leave of absence pursuing her Ph.D. at the University of Denver. In fact, during that academic year, Ms. Humphries received a $625 salary raise, effective January 1, 1996. Dr. Harmon in his testimony acknowledged that fact and also that Ms. Humphries is no longer being paid for the 1996-97 academic year.
Mr. Stephen Payne, a white associate professor who is also pursuing his Ph.D., is still required to teach four courses in return for his salary ($41,350 as of January 1996). The
recent new black Ph.D. hires were given reduced teaching loads in addition to their higher salaries, according to Dr. Harmon, in order to give them time to get their research "up and running." Such treatment was not accorded Mr. Payne with regard to earning his Ph.D., although Dr. Harmon, to his credit, has reduced Mr.
Payne's workload by arranging his course schedule so that he only has to do two preparations instead of four preparations for his four courses.
Additionally, Ms. Lynette Johnson, who is black and who was hired around 1988, was paid a salary from the CIS Department's budget during the year 1995-96 despite having no teaching or other faculty duties, including research, within the Department. She does not have a Ph.D. and is currently paid
$59,085 per year. In August 1996, she was transferred from the Department payroll and apparently placed on the Education Department's payroll. Mr. Rollins explained that this is because she was selected as a person to do entirely research duties in order to meet a Legislative or Board of Regents mandate to the effect that faculty members must be shown to be devoting more time than in former years to teaching, with required reduced research time or duties. In order to accomplish compliance with this requirement, Mr. Rollins explained in his testimony that personnel such as Ms. Johnson are selected to perform more research, with no teaching duties, so that research duties can be shifted away from those faculty members who are required to
teach. Her substantially-higher salary without a terminal degree versus that of the Petitioner with teaching, publication, research duties, tenure, and a Ph.D., was unexplained.
Dean Perry's testimony was equivocal and vague in a number of pertinent areas. Upon cross-examination, he admitted that the Petitioner's colleague he referred to in his letter to Dr. Hogg of November 22, 1994, (Respondent's Exhibit 15) was Dr. Stoecklin. This is with reference to his recommendation in that letter that the Petitioner's salary be adjusted by $5,000 which he said would "make his salary comparable to that of one of his colleagues with equivalent credentials." He attempted later to recant that testimony only to have to admit that Dr. Stoecklin was the only colleague who he could have been referring to, given the salary figure he recommended. He professed not to know whether Dr. Stoecklin was an assistant or associate professor, even though he was the Dean in 1993 when controversy ensued surrounding the denial of her tenure and promotion at that time. She was and still is an assistant professor and therefore is not a colleague of "equivalent credentials" to the Petitioner in any event.
Additionally, the Dean testified that current positions at the assistant professor level in the CIS Department are advertised at salaries within the "fifties" (or $50,000-plus range). He was unaware, apparently, that Dr. Harmon had already testified that such positions were advertised at "$45,000-
negotiable" and that one such position was currently being advertised for $42,000 to $45,000 per year. He testified that blacks in the Petitioner's discipline are able to command higher salaries, even "substantial salaries" as he put it, but did not quantify the approximate "premium" salaries blacks could command, even though his position requires him to approve or disapprove recommended starting salaries of new faculty members.
The Respondent’s counsel argued at this point that, regardless of available salary dollars, the rate authorized for a position controls what its incumbent can be paid. In response to questioning by the Respondent's counsel, the next witness, Mr. Rollins, testified that salary "rate" for a position is what controls how many dollars the faculty member in that position can be paid, irrespective of the total salary dollars available in the department’s, college’s or university's salary budget. Such testimony begs the question, however, concerning why, sufficient rate and dollars (or at least dollars) were found to pay substantially higher salaries not only to the Petitioner's black colleagues of equivalent educational attainment, experience, and credentials, but even to those assistant black professors who had substantially less experience in teaching, in industry, in research, in publications, and in credentials. It strains credulity to accept that the "rate" for an assistant professor position would allow a new assistant professor to be paid approximately $15,000 more that the "authorized rate" for an
associate professor position, occupied by a much more experienced and qualified incumbent.
Additionally, Dean Perry was unable to recall a close estimate of his total, approximate salary budget, while adhering to his position that there was little discretionary money for an equitable salary raise. Finally, Dean Perry testified that the University attempts to raise white faculty members up to some equivalent level of pay to that of higher paid, newly-hired black counterparts, but the evidence indicates that, as to the CIS Department, this was only partially done for the Petitioner after he ultimately appealed his grievance procedure to the Board of Regents level and initiated this proceeding. It has not been done for other non-black CIS faculty members included in the statistics the Petitioner presented into evidence, most notably Dr. Stoecklin, who for the reasons found above, cannot serve as the exemplar of equivalent treatment for white faculty members that the Respondent maintains her to be. Accordingly, for these reasons, the testimony of Dr. Perry is accorded less weight and credit than that accorded to the testimony of Dr. Harmon, Dr. Stoecklin and the Petitioner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
Section 760.10, Florida Statutes, in pertinent part, makes it unlawful for an employer to discriminate against an employee with respect to compensation on account of that employee’s race and makes it unlawful to limit, segregate or classify employees or applicants for employment in a way that would deprive such persons of employment opportunities or adversely affect their employment status because of their race. Section 760.11(1), Florida Statutes, requires that any person aggrieved by a violation of Chapter 760, Florida Statutes, must complain to the Human Relations Commission within 365 days of the violation.
Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, at 42 U.S.C. Section 2000E et. seq. Florida courts have deemed that federal decisions concerning Title VII issues are applicable in Florida, because of the similarly-cast Florida statutory scheme embodied in Chapter 760, Florida Statutes. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
In the cases of Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1991) and McDonnell-Douglas Corp v. Green, 411 U.S. 792 (1973), the U.S. Supreme Court established an allocation of the burden of proof requirements for a prima facie case of discrimination and the order for presentation of proof in Title VII equivalent discriminatory treatment cases such as this one. The employee must first establish a prima facie case by
preponderant evidence showing discriminatory treatment. Once the prima facie case is established, a presumption that unlawful discrimination occurred arises and places upon the employer the burden of producing or articulating an explanation in rebuttal of the prima facie case. This amounts to articulating a non- discriminatory reason concerning the employment action complained of. Once the employer articulates a non-discriminatory reason for the employment action taken, the employee then has an opportunity to demonstrate that the reason is, in fact, a pre- text for what is truly unlawful discrimination. Thus, under McDonnell-Douglas, the burden of production might shift to the employer but the ultimate burden of persuasion of the trier-of- fact that discrimination occurred lies with the employee.
This scheme concerning the shifting burden of production relative to the ultimate burden of persuasion was again visited in the case of St. Mary’s Honor Center v. Hicks,
U.S. , 113 S.Ct. 2742, 125 L. Ed.2d 407 (1993), which
helds that once the employer in a Title VII discriminatory treatment case has succeeded in carrying its burden of producing a non-discriminatory reason for the challenged action, the employee must show any such reasons to be pre-textual, by proving that the employer intentionally discriminated against the employee for the unlawful reason alleged. The employee thus bears the ultimate burden of persuading the trier-of-fact as to the ultimate fact of discrimination. That burden may be
satisfied by showing, directly, that a discriminatory reason, more likely than not, motivated the decision involved, or, indirectly, that the proffered reasons of the employer are not worthy of belief. See Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991). Nix v. WLCY Radio/Rahall Communications, 738 F. 2d 1181-1185 (C.A. 11 (Fla.) 1984).
The Respondent has moved to dismiss the Petitioner’s claim on the basis of failing to file a timely petition for relief. See Section 760.11, Florida Statutes. The evidence in this case, however, establishes that the Petitioner’s claim concerning the Respondent’s failure to pay him an equitable salary concerns a continuing discriminatory pattern or course of conduct that began back in 1992 or before, more than 365 days before the filing of the complaint with the Human Relations Commission but which continued up through and past the time the complaint was filed with the Commission. The Petitioner’s participation in the 1993-94 SES was merely his attempt to use an internal remedy to correct his salary inequity and not an election of remedies. Thereafter, the failure of the Respondent to follow through on its assurances resulting from the SES process concerning correcting the inequity in the Petitioner’s salary; the hiring of new black faculty members with fewer credentials and less experience at salaries much higher than the Petitioner’s; the raced-based discriminatory statements made in the "Step One Decision" in the Petitioner’s grievance action; the
inadequacy of the $5,000 raise, purportedly related to the grievance action; and, generally, the low salary continually paid to the Petitioner compared to his black faculty colleagues, all occurred and continued within 365 days of the filing of the complaint. The complaint was timely. The motion to dismiss is denied.
Disparate Treatment: The Prima Facie Case
In a Title VII employment discrimination action or a similar action arising under Chapter 760, Florida Statutes, the Petitioner must create an inference of discrimination by establishing a prima facie case. "A prima facie case of discrimination in a disparate treatment action is made out when a plaintiff adduces evidence tending to show that the challenged adverse employment action is not readily explainable by considerations of merit." Fitzpatrick v. City of Atlanta, 2 F.3rd 1112, 1121, (C.A. 11 (Ga.) 1993), citing to McDonnell- Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. "The prima facie case method . . . was never intended to be rigid, mechanistic, or ritualistic." United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S. Ct. 1478, 1481-82, 75 L. Ed. 2nd 403, 409-10 (1993), quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 985 S.Ct. at 2943 (1978), cited with approval in Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1186 (C.A. 11 (Fla.) 1984). A prima facie case can also be established by a plaintiff (Petitioner) showing that he suffered
an adverse employment action "while others . . .having comparable or lesser qualifications . . ."did not, or were accorded the more favorable treatment he was denied. Whiting v. Jackson State University, 616 F.2d 116, 121 (5 Cir. 1980).
The Petitioner is white and challenges his adverse treatment versus the more favorable salary treatment given those not of his protected class, the black professors, as discriminatory, based upon his race. Section 760.10 forbids discrimination in compensation or conditions of employment based on one’s race. Thus he has asserted a protected classification under the circumstances of this dispute.
The Petitioner proved that he was not given a raise when his Ph.D. was awarded in 1992 nor a timely, equitable one when he earned tenure and promotion. Contrary to the Respondent’s repeated assertions, the key point concerning the award of the Ph.D. is not that it should be or is claimed to be an automatic "trigger" for a salary equity raise. Rather, it is an important benchmark for measuring equivalent or superior qualifications and "marketability" in terms of salary a faculty member or prospective faculty member can command. The Petitioner did not have to demonstrate that the Respondent had an actual policy of awarding salary raises when Ph.D.s were granted and that he did not get one at that point, in order to show a prima facie case of discrimination. Rather, it is a key qualification
attainment of faculty members relevant to show the Petitioner’s qualifications relative to his comparable colleagues.
Dr. Harmon was given a $10,000 raise in 1991 when he got his Ph.D., earned tenure and his promotion to associate professor. The Petitioner earned his Ph.D. in 1992. He earned tenure and won a promotion to associate professor in early 1993 but did not get a concomitant salary raise. Black Ph.D.s, Drs. Bobbie, Williams and Allen thereafter, were hired at much higher salary levels as new employees, even though two of them were of lower rank, as assistant professors, than the Petitioner who is an associate professor. All of them had much fewer years of experience in teaching, research, publication and work in private industry than the Petitioner. These black Ph.D.’s were also given significantly-reduced teaching responsibilities (two classes instead of four) when hired, ostensibly "to get their research off and running," even though they were hired at substantially-higher salary levels than the Petitioner, a veteran faculty member with all of the above-referenced qualifications. The Petitioner was not given reduced teaching responsibilities when he earned his Ph.D. in order to get his research off and running, and Mr. Payne, a white Ph.D. candidate, although only required to make two class preparations per day for his four classes, still has to teach four classes. Moreover, no white faculty members have been hired in the computer science (CIS)
department in tenure-earning positions for at least the past five years.
It is undisputed that Petitioner has an excellent performance record at FAMU. He has superior qualifications for his associate professor rank in terms of length of teaching experience, publications, research activities, and private industry experience compared to the black Ph.D.s hired or retained at much greater salary levels as associate or even as assistant professors. His qualifications have been equivalent to those of Dr. Harmon since the Petitioner earned his Ph.D. in 1992. Dr. Harmon has been paid at a much-higher salary level starting with the earning of his Ph.D. in 1991. The Petitioner, however, is the only faculty member in the department for who the relevant university committee recommended the "TIP" award for excellence in teaching. It was only received long after he initiated his internal grievance procedure and filed his claim initiating this proceeding. Only $1,500 of Dr. Harmon’s greatly superior salary from 1992 forward represents pay he receives for his duties as department chair, a position he gained by department faculty election in August 1993. He also has reduced teaching duties in exchange for his administrative responsibilities as chair of the department.
Mr. Barnes has approximately twenty-years experience on the FAMU faculty in various capacities. He was department chair until his peers voted him out in 1993. He has not earned a Ph.D.
or tenure. When he failed to earn tenure he was given duties which do not require tenure under university policy. He was given additional duties to justify his retention in non-tenure status by being made a "project director" or "project manager" with vaguely explained duties involving liaison between students and private industry. He was also assigned to duties in the president’s office of a nature undefined in this record, but which involve substantially reduced teaching duties. He has since been accorded substantial salary increases. Although his long years of experience with the university and his vaguely explained additional duties are no doubt regarded favorably by his employer, it cannot be concluded that he is more qualified than the Petitioner as an associate professor. That is the position which he still occupies at a much higher salary, without the terminal degree or tenure which the Petitioner has attained and for which he has been paid far less salary since 1992.
The Petitioner's prima facie case for discrimination has thus been proven by evidence showing that from August 19, 1992, when he earned his Ph.D. to August 19, 1995, when he filed his initial complaint with the Commission, and indeed into the spring of 1996, his credentials and performance were excellent and yet his salary was maintained substantially below that of his black colleagues who were either similarly situated or lower in rank, credentials and experience. This inequity (if not the reason) was acknowledged by his department chair, Dr. Harmon, by
Dean Perry, by the relevant faculty committees, and by Dr. Hogg concerning Petitioner's SES and his grievance procedure.
The Respondent failed to address his salary inequity, until his grievance progressed through the appeal to the Board of Regents' Committee. Even then he was only given a $5000 salary increase, apparently as a result of the grievance process, in July 1995, which raised him to the $49,190 per year salary level. It was only in January 1996 that he was increased to $55,625 in annual salary, the salary level then given to Dr. Williams, the black, assistant professor herein hired in August 1994 at
$55,000. When Petitioner received his "TIP" award (not an equity increase) in March 1996, he attained his current salary level of
$60,625 which is still significantly less than that of his black colleagues, Mr. Barnes, Dr. Bobbie and Dr. Harmon. From this evidence an ordinary person could "reasonably infer" a prima facie case of discrimination based upon racial preference.
Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1443, reh’g denied, 765 F.2d 154 (11th Cir), cert. denied, 474 U.S. 1005 (1995). "The elements of a prima facie case are flexible and should be tailored to differing factual circumstances. The central inquiry . . . is whether the circumstantial evidence presented is sufficient to create an inference (i.e., a rebuttable presumption) that the basis for an employment-related decision was an illegal criterion." Fitzpatrick v. City of Atlanta, 2 F.3rd 1112, 1122, (C.A. 11 (Ga.) 1993), citing to B.
Schlei and P. Grossman, Employment Discrimination Law 476 (2d ed., Five-Year Cum. Supp. 1989) (Footnote omitted).
Articulated Reasons for Disparity
The Respondent has articulated three non-discriminatory reasons for the Petitioner’s salary disparity. First, it maintains that compression/inversion is a factor. This is the phenomenon whereby an employee hired several years earlier can be at a lower salary level than employees hired in later years, when entry level salary rates are higher than the salary the veteran employee is then paid. The normal annual salary increases granted by the Legislature cannot thus close the salary gap and an inverted situation results whereby an employee who is performing well, with substantially more experience, does not get paid as much money. Under the university's policy that problem cannot be addressed with a "compression/inversion" pay raise until the employee has been working at FAMU for seven years.
Salary compression/inversion, however, cannot explain the great disparity in salaries between the Petitioner and his black professor colleagues. The Petitioner had not been at the university long enough to even qualify for his first salary compression increase (7 years). The large gap between his and the comparative black employees' salaries occurred too quickly and in too large a magnitude merely to be explained as being due to this reason, given the time period since his hiring and their entry-level salary or incumbent salary raise dates and the
totality of the applicable circumstances found above. There was no evidence that salary rates had increased so markedly in five to seven years, as to explain the large disparity in pay. The evidence shows that the Respondent had no definitive pay plan for these faculty members and positions which, for instance, might depict discrete minimum and maximum salary rates for the Petitioner’s and his colleagues' positions. It is difficult to conceive how the salary rate could change so markedly, so quickly, as to authorize an entry level, assistant professor to be paid approximately $15,000 more than Petitioner. The same is true with regard to the rate and positions of the other comparative employees. Moreover, the disparity between the Petitioner's and Dr. Harmon's and Mr. Barnes' salaries cannot be thus explained since they were hired at about the same time and before the Petitioner, respectively. In any event, there is no evidence of the authorized rate for any of the positions. In fact, the only evidence of actual pre-established entry level salaries, at least for assistant professors, (aside from stated "minimums" of $12,500 or $23,000, in various contracts in evidence), is Dr. Harmon’s testimony that he offers positions at "$42,000 to $45,000 per year negotiable" or, in other words, close to the national average for such positions. If the Respondent actually hired new Ph.D.s at that level, the problem addressed in this case may never have occurred.
The second non-discriminatory reason for the salary disparity articulated by the Respondent is that the Petitioner failed to present an offer from another institution after obtaining his Ph.D. and had rejection letters from other institutions where he sought positions. Therefore, the Respondent claims he did not demonstrate his marketability at a higher pay level, even with the earning of his Ph.D. Respondent cites the $10,000 pay increase to Dr. Stoecklin as an example of equivalent treatment for white professors, provided they obtain a competitive job and salary offer to prove their "marketability."
The Respondent asserts that black Ph.D.s had a higher marketability, as stated in the president’s grievance committee chair’s step-one grievance decision, ". . . race and gender affect salaries. . . .Blacks . . . do command a higher salary. . . . Dean Perry in his testimony concurred with this
statement, and, thus, the Respondent has taken the position that black Ph.D.s in the relevant computer science discipline are scarce and therefore command higher salaries because of their market value as a "scarce commodity." The Respondent is thus asserting that not only has the Petitioner failed to prove his marketability by obtaining an outside offer from another institution but that black Ph.D.s, as his counter-parts, have a higher marketability in terms of salary which it must pay in order to attract them as new hires or to retain them as incumbent
faculty members. The Respondent contends, in essence, that this is because of economic factors it did not create or control.
The Respondent’s contention concerning its treatment of Dr. Stoecklin as a white exemplar for its "market value" justification as to why its treatment of the Petitioner was not discriminatory is not persuasive. The Respondent gave Dr. Stoecklin (white) an increase of approximately $10,000 in 1991 when she got her Ph.D. It was only granted after Dr. Harmon had already received such a raise and Dr. Stoecklin complained about unfairness. They had earned their Ph.D.s at about the same time and had been employed for a similar period of time. She was told to do as Dr. Harmon did and get an outside offer from another school. She did, and the raise was granted. Thereafter, however, she was denied tenure for a year for unexplained reasons. Denial of tenure would normally have resulted in her dismissal had she not legally challenged that denial. She has never been promoted, and her salary equity since that time has been neglected. In 1991 the $10,000 raise increased her salary to approximately $48,921. Only in January of 1996 did it get raised to $50,297 and that was only by legislative salary action, not by an equity increase generated by the Respondent. Thus, until August 1996, after at least eight years of experience at FAMU, twenty-five years' total experience, twelve years' teaching experience, and the earning of a Ph.D., Dr. Stoecklin was not paid as much as the entry-level, Ph.D., black, assistant
professors who were hired at $52,000, or more, without tenure and with much less relevant experience.
In the meantime, Dr. Harmon, who started out at FAMU approximately equivalent to Dr. Stoecklin in salary (approximately $1,000 more than her salary) before the 1991 Ph.D.-related increase, by January of 1996 had been raised to
$66,641 per year as an associate professor. He did get promoted when he earned his Ph.D. in 1991 and was granted tenure as well. That salary figure does not include the extra $1,500 he is paid as the elected department chair. The black assistant professors and one associate professor hired in the period 1993 to 1995 were hired at much higher salaries than Dr. Stoecklin or Petitioner.
Moreover, there is no evidence that any deficiency exists in Dr. Stoecklin’s performance or that it is other than satisfactory. She has been a leader in grant production, has published papers and received good teaching ratings. These considerations thus show, in spite of her initial raise and contrary to the Respondent’s assertion, that Dr. Stoecklin is not a white employee who is similarly situated and treated compared to the black faculty members used as comparatives by the Petitioner, some of whom are of lower rank than the Petitioner but were paid much higher salaries during the period from 1991 through March 1996. Even assuming, arguendo, that she was, Title VII does not "give an employer license to discriminate against some employees on the basis of race or sex merely because he
favorably treats other members of the employee’s group." Connecticut v. Teal, 457 U.S. 440, 453-454, 102 S. Ct. 2525, 73
L. Ed. 2d 130 (1982).
The Petitioner’s "lack of marketability" is not credible as a true reason for the salary disparity at issue. Getting competitive offers was not shown to be an actual policy requirement of FAMU as the only way for a person such as the Petitioner to get a salary raise. It was also not shown that the purported necessity that the black Ph.D.s be paid at much higher salary levels was due to an economic situation beyond the Respondent’s control. The Petitioner proved just the contrary by clearly preponderant evidence and, therefore, this reason has been shown to be pre-textual.
More specifically, the Respondent never told the Petitioner he would need to get an offer to obtain a salary adjustment. Unlike the case of Dr. Stoecklin, who was specifically told to get an offer, the evidence showed that the Respondent led the Petitioner to believe that his credentials and performance were such that his value was recognized and that a salary adjustment would be forthcoming. Indeed, given the Petitioner’s credentials, performance, and experience, it was in the self-interest of the Respondent to discourage him from seeking other positions with other institutions. This is consistent with the communications the Petitioner had with his superiors, particularly Dean Perry, who told him to stop seeking
other positions, take his house off the market, and stay at FAMU and that he, Dean Perry, would support a salary adjustment for him because he recognized that the Petitioner’s salary was inequitably low.
These representations, along with family and personal reasons for his wanting to remain in Tallahassee, caused the Petitioner to be very reluctant and selective concerning job searching activities. He really did not want to leave FAMU. Moreover, Dean Perry testified that if the Petitioner had presented an offer there was no guarantee that the university could have matched it.
Dean Perry also testified that an offer was not actually required for a faculty member to obtain a salary adjustment. He acknowledged he could not support the idea of a faculty member of another school interviewing at FAMU just to get an offer to take back to that other school to seek his salary increase. He thus tacitly acknowledged the questionable ethics involved in a facultymember of FAMU falsely seeking offers from another school just to bid up his salary request at FAMU. Thus, for the Respondent to claim that the Petitioner needed an offer in order to obtain an equitable salary and was unmarketable because he failed to present one, as a legitimate reason for his salary inequity, is disingenuous.
Further, the Respondent approved a grant proposal in May of 1993 that budgeted a large salary adjustment for the
Petitioner, to the $50,000 salary level (never awarded). It pledged in early 1994, through the recommendations of the Dean and Provost Hogg, as a result of his SES process, to adjust the Petitioner’s salary to reflect his current market value for his rank and experience in his discipline. Finally, some market equity and other types of increases were given to the Petitioner and other faculty members, without the necessity of being predicated on outside salary and job offers.
In short, while the lack of a job and salary offer from an outside institution may provide a convenient excuse for not raising the Petitioner’s salary in an equitable fashion, it cannot be legitimately claimed in this case as a non- discriminatory, business reason as to why the Petitioner’s salary was not equitably adjusted. Clearly, it was not the only means whereby one could obtain a salary adjustment at FAMU and, given the Petitioner’s credentials and experience in teaching, private industry, research, and publications, it is not credible that job offers were the only way the Petitioner could establish his worth. It was not shown for that matter that Mr. Barnes had obtained a job offer from another institution. He was the beneficiary of substantial salary increases without so proving his "marketability." Given the preponderant weight of the evidence, it has been shown by the Petitioner that this purported reason for the failure to accord him similar salary treatment to
his black, comparative colleagues is pre-textual and not the true reason.
The evidence shows that the Respondent has used race- based statements to justify the Petitioner’s inferior salary treatment versus that of his black comparative colleagues. The Respondent hired or sought to retain them by paying thousands of dollars extra annual salary differential just to hire or retain the black Ph.D.s in these positions. These statements are those referenced above, made during the period of the Respondent’s complained-of conduct, in the step-one grievance decision, and as concurred in by Dean Perry in his testimony at hearing. The Respondent’s position is that, in addition to the Petitioner purportedly not establishing his "marketability" or worth, market forces driven by the scarcity of black Ph.D.s in the Petitioner’s discipline of computer science dictate that they command the higher salaries that FAMU contends it had to pay to hire them or retain them.
This was not an economic fact or market force which the Respondent was unable to avoid, however. The Petitioner showed, in part through statistical evidence, that the faculty in the CIS department and in the college of arts and sciences, at times pertinent to this claim, has been made up of a majority of black professors. Therefore, there could be no affirmative action- related, remedial goal to be served by paying the much higher salaries just to hire or retain black Ph.D. professors. There
was no proof of past discrimination against blacks as to hiring or salaries. Therefore, there was no "affirmative action" basis for the Respondent to pay the much-higher salaries that black Ph.D.s can command in the "market" for that discipline in order to attract them as new hires or to retain them. See Adarande Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2100-2119 (1995).
Although, as the Respondent contends in its proposed recommended order, nothing in Title VII indicates that Congress intended to abrogate fundamental economic principles, such as the laws of supply and demand, or to prevent employers from competing in the labor market or to suggest that the employer is responsible for a market disparity it did not create, citing Am. Fed. of Sc. and Mun. Cemt. v. State of Washington, 770 F.2d 1401, 1407 (C.A. 9 1985), the Respondent had no economic, business necessity to subject itself and the Petitioner to the effect of the "market price" for black Ph.D.s. There was no need to hire them and pay more for them to cure the Respondent's previous discrimination against blacks and no economic necessity to hire them at such markedly-higher salaries or pay such higher, disparate amounts to incumbent black professors because the evidence establishes that the Respondent should have been able to employ qualified professors at significantly lower salaries, if their race was disregarded.
The Respondent’s witness, Dr. Harmon, established that there is a glut of computer science Ph.D. applicants on the
faculty job market. He cited an example involving the University of Florida advertising for a Ph.D. faculty position in that discipline and getting approximately 500 applicants.
In light of the over-supply of computer science Ph.D.s, one can clearly infer that the Respondent could have hired Ph.D.s at much lower salaries for the subject assistant professor positions and even the associate professor position for which Dr. Bobbie was hired, in relation to the Petitioner’s salary level and quite likely around the "$42,000 to $45,000 - negotiable" level or range (about the national average). That was the level at which Dr. Harmon testified he had most recently initially offered an assistant professor position; (approximately $51,000 was the national average level for associate professors as of the time of hearing). That is, the Respondent could likely hire computer science Ph.D.s at such lower salary levels if it did not seek out black Ph.D. applicants.
The Respondent did not advertise its open positions widely. Dr. Harmon testified that a recent position he offered only drew about 12 applicants and a substantial number of these applications were transmitted to him for his consideration and recommendation by various members of the FAMU administration. He stated that he was not given funds for advertising open positions and that they are not widely advertised in the common channels, such as broadly disseminated professional or academic journals.
Thus, the Respondent is voluntarily curtailing its access to the open market for computer science Ph.D.s and limiting the pool of potential applicants. Thus, it cannot be maintained in a credible way that the hiring of black Ph.D.s with equivalent or inferior qualifications to the Petitioners, at such substantially higher salaries or the giving of such significant salary increases in a relatively short span of time to incumbent black faculty members, without giving the equivalent treatment to the Petitioner and other white and non-black Ph.D.s, is an unavoidable response to market forces of supply and demand for Ph.D.s. The Respondent did not credibly demonstrate that there is some compelling, racially-neutral, economic reason for such favored compensation treatment for black Ph.D.s, as opposed to the treatment afforded white Ph.D.s during the 1991 through 1996 period at issue. There is no definitive evidence adduced by the Respondent to show what level of qualifications the black Ph.Ds hired had vis-a-vis the other applicants for each of their positions. There was no proof that they were the most qualified applicants in the applicant "pools", however scant they may have been.
The remaining reason articulated for the disparate compensation treatment accorded the Petitioner concerns an alleged unavailability of funds to rectify his salary inequity. This reason was repeatedly communicated to the Petitioner from 1992 forward, during the development of this controversy, and was
reiterated by the Respondent in argument and testimony at hearing. Conversely, the Respondent has also asserted as a reason for the disparity, the failure of the Petitioner to obtain a bona fide offer from another institution which FAMU could have matched as a means of giving him a salary raise at the times pertinent hereto. However, if money would have been available to match an offer presented by the Petitioner, then money should certainly have been available to fulfill the Respondent’s assurances and pledges, primarily communicated through Dean Perry, to address his acknowledged salary inequity.
The preponderant, credible evidence demonstrates that funds were available to hire additional black professors into the department at salaries substantially above the national averages professors whose credential and experiential qualifications were in some cases inferior to those of the Petitioner, when there was no economic or remedial, affirmative action basis for doing so. These facts also show that there were funds to accord large salary increases to equivalent or less qualified incumbents and to fund special benefits to certain black faculty members. Salaries were paid to two black professors who were performing no duties in or for the department, while being paid from the department’s budget. One of them was paid her full salary as a non-Ph.D. professor for her first year of employment while she was on leave of absence at another university working on her Ph.D. Funds were also available to retain a much more highly-
paid, black associate professor and to accord him substantial increases not accorded to the Petitioner after he had failed to attain tenure and had not earned a Ph.D.
Moreover, Mr. Rollins testified that, especially in the most recent two-year period, substantial flexibility had been accorded the university administration to shift funds from expense accounts to salary accounts and to the general effect that shifting of funds between accounts was a matter over which the university had substantial discretion. This is born out by the fact that in August of 1994 there were sufficient surplus salary funds so that the university could give an unprecedented
$1,000 increase to each associate and full professor university- wide, regardless of each faculty member’s salary equity situation. It certainly seems that some of these funds could have been earmarked to address the Petitioner’s salary inequity situation. Such facts belie the purported reason and argument stated at hearing by the Respondent, and in its representations to the Petitioner throughout this controversy, that sufficient funds were not available to address his pay inequity problem.
In fact, the preponderant evidence shows the Respondent had scant interest in adjusting the Petitioner’s inequitably-low salary relative to his black colleagues (or the low salaries of other non-blacks for that matter). The left-over salary funds available at the start of the 1994-1995 academic year could have been used for this but were not. Dean Perry’s
letter recommending a $5,000 increase for the Petitioner, and Dr. Hogg’s denial of it, in early 1995 showed that the Petitioner’s comparisons to his black counterparts were being disregarded.
The Dean apparently thought it sufficient to bring his salary up to the equivalent of the highest paid white, a lower ranking, assistant professor, Dr. Stoecklin. That was only done after the grievance matter was concluded in July, 1995. Later, after the filing of the subject complaint, the Respondent put together a pay increase, effective in January 1996, the date of the included, legislatively-mandated pay raises for all faculty.
This increase raised the Petitioner to $55,625 annually, the then-pay level of Dr. Williams, the black, assistant professor, hired in August 1994, under the above-referenced circumstances, at $55,000.
The evidence establishes that no new white faculty have been hired in the Department in tenure-earning positions in at least five years. Open positions are not advertised in professional journals or widely enough to take advantage of the glut of computer science Ph.D.s in the market. The Respondent has thus limited the available pool of qualified applicants and yet is willing to pay large premiums in annual salaries and cumulative career salaries to hire and retain black faculty. The Respondent has stated that gender and race affect salaries and that black Ph.D.s command higher salaries. Dean Perry in his testimony concurred in these statements and stated, in effect
that, given that black Ph.D.s command and are hired or retained at such premium salaries, the Respondent makes an effort to raise salaries of non-black, deserving incumbent faculty but there is "very, very little money" to accomplish this. Given the salary treatment accorded the Petitioner and the lack of a credible, business necessity, economic or past discrimination-curative reason for hiring and paying black professors at such substantial premiums, it has been demonstrated that the Respondent has had little timely, serious interest in equitably adjusting the Petitioner’s and other whites’ salaries to approximate comparative black employees. Thus the "lack of sufficient funds" reason proffered by the Respondent is also not credible and was not the true reason the salary disparity occurred and continued. It is pre-textual.
In summary, the Petitioner has established a prima facie case from which it may be inferred that he has suffered discrimination in his compensation based upon his race. The Petitioner has adduced preponderant evidence that the above- referenced, purported, non-discriminatory reasons articulated by the Respondent for the disparate salary treatment are pre- textual. They were not the true reasons the disparity was caused, aggravated, and continued, and they are deemed not to be credible. No other reason was offered by the Respondent.
The Petitioner’s preponderant credible evidence, including but not limited to, evidence of the significant salary
disparity for all white and non-black faculty versus that of their majority, black counterparts in the department and college shows that the Respondent has a conscious, operative preference to hire and retain black faculty and a concomitant willingness to pay substantially higher salaries to carry out that preference.
This preference outweighs any concern the Respondent may have for the low salaries of white faculty, which doubtlessly result in part from the biased allocation of funds to the hiring, retention and raises of black faculty. The Court of Appeals for the Eleventh Circuit in Nix, supra, held as follows:
A McDonnell Douglas prima facie case creates an inference of discrimination by eliminating 'the most common non-discriminatory reasons for the plaintiff’s rejection.’ Burdine, 450 U.S. at 253-54, 101 S. Ct. at 1093-94. If
the employer’s articulated reasons are then found to be pretextual, leaving no valid reason for the employer’s actions, it is likely that discrimination was the true reason. See Aikens, 460 U.S. at , 103 S. Ct. at 1482, 75 L. Ed. 2d at 409-410; Id., 460 U.S. at , 103 S. Ct. at 1483, 75 L.
Ed. 2d at 412 (Blackmun, J., Concurring). '[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.’ Furnco Construction Corp. v. Waters, 1978, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949, 57 L. Ed. 2d
957.
It having been established that the Petitioner has been the victim of discrimination based upon his race, it is
RECOMMENDED that a final order be entered by the FCHR ordering that such discrimination in compensation and conditions of employment cease and desist and that the Petitioner be awarded back pay and attendant benefits, including lawful interest on any such late payments, dating from the time he received his Ph.D., such that his compensation since that time shall be equivalent to the black associate professors in his department of equivalent qualifications and experience. No attorney's fees should be awarded since no counsel has appeared for the Petitioner thus far.
DONE AND ENTERED this 26th day of June, 1997, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32301-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1997.
COPIES FURNISHED:
Bryon K. Ehlmann, pro se 4728 Highgrove Road
Tallahassee, Florida 32308
Bishop C. Holifield, General Counsel
Avery D. McKnight, Assistant General Counsel Lee Hall, Room 300
Florida A and M University Tallahassee, Florida 32307
Sharon Moultry, Clerk Florida Commission on
Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
Dana Baird, General Counsel Florida Commission on
Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32303-4149
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| May 26, 1999 | Order sent out. CASE CLOSED. |
| May 11, 1999 | (Petitioner) Notice of Voluntary Dismissal filed. |
| Apr. 19, 1999 | Order sent out. (parties shall file status report by 5/31/99) |
| Apr. 14, 1999 | (G. Anton) Notice of Appearance filed. |
| Apr. 14, 1999 | (Petitioner) Consented Motion for Abatement of Proceedings filed. |
| Apr. 09, 1999 | Order sent out. (briefs shall be submitted by 4/23/99) |
| Apr. 05, 1999 | Notice of Filing; DOAH Court Reporter Final Hearing Transcript filed. |
| Mar. 30, 1999 | (Respondent) Memorandum in Opposition to Petitioner`s Motion to Quash; Memorandum in Opposition to Motion to Quash filed. |
| Mar. 30, 1999 | Respondent`s Motion for Enforcement/Sanctions filed. |
| Mar. 26, 1999 | (B. Ehlmann) (2) Motion to Quash Subpoena filed. |
| Mar. 15, 1999 | Notice of Hearing sent out. (hearing set for 3/30/99; 9:30am; Tallahassee) |
| Feb. 09, 1999 | Order Remanding Case to Administrative Law Judge for a Determination on Damages (filed via facsimile). |
| Feb. 09, 1999 | CASE REOPENED. |
| Feb. 08, 1999 | (S. Moultry) Order Remanding Case to Administrative Law Judge for a Determination of Damages (filed via facsimile). |
| Sep. 22, 1998 | Blue File Returned from HRC filed. |
| Sep. 22, 1998 | Letter to C. Walker from B. Ehlmann Re: Remanding case back to DOAH filed. |
| Aug. 31, 1998 | Final Order Finding a Violation Against Respondent for Relief From an Unlawful Employment Practice filed. |
| Jun. 26, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 11/20-21/96. |
| Jan. 30, 1997 | (Respondent) Proposed Recommended Order filed. |
| Jan. 30, 1997 | Petitioner`s Proposed Recommended Order filed. |
| Dec. 16, 1996 | (3 Volumes) Transcript filed. |
| Nov. 21, 1996 | Petitioner`s Exhibit 73 filed. |
| Nov. 20, 1996 | CASE STATUS: Hearing Held. |
| Nov. 20, 1996 | Respondent`s Motion to Dismiss filed. |
| Nov. 14, 1996 | Respondent`s Motion for Prehearing Conference; Respondent`s Motion for Continuance filed. |
| Oct. 16, 1996 | Order sent out. (re: discovery rulings; Motions to dismiss are denied) |
| Oct. 14, 1996 | (Petitioner) Notice of Service of Interrogatories filed. |
| Sep. 04, 1996 | Petitioner`s Response in Opposition to Respondent`s Motion to Compel Discovery (No. II); Petitioner`s Response in Opposition to Respondent`s Motion to Compel Discovery (No. I) filed. |
| Aug. 26, 1996 | Respondent`s Motion to Compel Discovery (No. I); Respondent`s Motion to Compel Discovery (No. II) filed. |
| Aug. 12, 1996 | Notice of Hearing sent out. (hearing set for Nov 20 and 21, 1996; 10:00am, Tallahassee.) |
| Jul. 22, 1996 | Notice of Petitioner`s Response to Interrogatories and Request for Production of Documents; Petitioner`s Response to Respondent`s Reply to Petitioner`s Response to Respondent`s Motion to Dismiss filed. |
| Jul. 16, 1996 | Respondent`s Reply to Petitioner`s Response to Respondent`s Motion to Dismiss filed. |
| Jul. 08, 1996 | (Respondent) Unilateral Response to Initial Order filed. |
| Jul. 01, 1996 | Petitioner`s Response to Respondent`s Motion to Dismiss; Letter to PMR from Bryon Ehlmann (RE: response to initial order) filed. |
| Jun. 26, 1996 | Respondent`s Request for Production of Documents; Notice of Service of Interrogatories filed. |
| Jun. 25, 1996 | Initial Order issued. |
| Jun. 24, 1996 | Respondent`s Motion to Dismiss filed. |
| Jun. 14, 1996 | Notice; Request for Administrative Hearing, letter form; Charge of Discrimination; Petition for Relief filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 27, 1998 | Agency Final Order | |
| Jun. 26, 1997 | Recommended Order | Petitioner proved a prima facie case of race discimination based on salary deficiency. Respondent's reasons of insufficient funds and "market" being reasonable to pay blacks more was shown to be not credible and the reasons were pretextual. |
