STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QUINCY L. MOORE,

Petitioner,

vs.

NORTH FLORIDA COMMUNITY COLLEGE,

Respondent.

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) Case No. 03-1612

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RECOMMENDED ORDER

A hearing was held pursuant to notice, on August 25, 2003, in Tallahassee, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Quincy L. Moore, pro se

41 Green Briar Road

Thorndale, Pennsylvania 19372

For Respondent: Bruce A. Leinback, Esquire

Bird & Leinback, P.A. Post Office Box 15556

Tallahassee, Florida 32217 STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 5, 2001.

PRELIMINARY STATEMENT

On February 5, 2001, Petitioner, Quincy L. Moore, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) which alleged that North Florida Community College violated Section 760.10, Florida Statutes, by discriminating against him on the basis of race.

There is nothing in the file to indicate that an investigation of the allegations took place by FCHR.

A Request for Administrative Hearing was filed with FCHR by Petitioner on April 29, 2003. FCHR transmitted the case to the Division of Administrative Hearings (Division) on or about

May 2, 2003. A Notice of Hearing was issued setting the case for formal hearing on July 18, 2003. On July 9, 2003, the parties filed an Agreed Motion for Continuance which was granted. The hearing was rescheduled for August 25, 2003.

Petitioner filed a request to appear by telephone at the formal hearing. The request was granted subject to Petitioner being sworn by a notary public at Petitioner's location.

At hearing, Petitioner testified on his own behalf.

Respondent presented the testimony of William Hunter. Respondent offered into evidence Exhibits 1 through 18, which were admitted into evidence.

A Transcript consisting of one volume was filed on September 4, 2003. A Proposed Recommended Order was filed by

Respondent on September 30, 2003, and has been considered in the preparation of this Recommended Order. Petitioner did not file any written post-hearing submission. All citations are to Florida Statutes (1999) unless otherwise indicated.

FINDINGS OF FACT

1. In the fall of 1999, Respondent, North Florida Community College (NFCC), advertised for candidates for the position of Vice President for Academic and Student Affairs. Respondent advertised to fill this position by placing an advertisement in local newspapers, as well as in Gainesville, Florida. Additionally, an advertisement for this position was placed in the Affirmative Action Register, which is a publication for minorities, as well as in the Chronicle of Higher Education. The advertisement did not specify a salary and specified an application deadline of November 9, 1999.

2. The position vacancy advertisement included the following:

   Qualifications include: an earned doctorate from an accredited institution of higher education; at least five years of successful progressively responsible administrative experience in academic programs, preferably at a community college; some previous experience in teaching at the postsecondary level; and/or experience as a counselor or administrator for student services functions, this latter qualification being preferable. Experience in the Florida Community College System is a plus.

3. William Hunter is the Human Resources Director for NFCC. Mr. Hunter was responsible for placing the advertisements for the Vice President's position in the various publications. He is also responsible for ensuring that search committees are appointed, communicating with applicants, determining salaries to be offered to individual candidates based upon an established procedure, and offering positions by telephone to those persons selected.

4. A search committee was appointed by the President of NFCC, Dr. Grissom. There were five members of the selection committee, including Clyde Alexander, NFCC's Athletic Director and Equity Coordinator. Mr. Alexander is African-American. Initially, 51 persons applied for the position.

5. The selection committee narrowed the list of applicants from 51 to eight semi-finalists.

6. Mr. Hunter was instructed to notify each semi-finalist that he/she was selected. He notified each of the semi- finalists by telephone and coordinated interview dates.

   Mr. Hunter sent a letter to each semi-finalist. The letters informed the candidates of their selection as a semi-finalist, confirmed their interview date and time, and advised them that NFCC would be paying for the travel expenses to Madison, Florida, for the interviews.

7. The letters to the semi-finalists also stated that the salary range was $45,000 to $75,000 per year, "depending on experience." The salary range was established by the college's Board of Trustees.

8. Petitioner is an African-American male. Petitioner was selected as a semi-finalist. Also among the semi-finalists were Dr. Barry Weinberg and Dr. Thomas Eaves, both white males.

9. Interviews were conducted between December 1 and December 9, 1999. Each of the semi-finalists was given a tour of the campus and had an opportunity to meet with various college officials, as well as the President and members of the search committee.

10. After the interviews of the semi-finalists were completed, the selection committee provided a list of finalists to the President.1/ The first choice of the selection committee was Dr. Barry Weinberg, who at that time was employed as Vice President for College Advancement at Rockingham Community College in Wentworth, North Carolina. Dr. Weinberg holds a Bachelor of Science in Education from State University of New York at New Paltz; a Master of Science in Student Personnel Services (Higher Education Administration) from State University of New York at Albany; a Certificate of Continuing Studies in Applied Behavioral Sciences from Johns Hopkins University; and a

    Doctor of Education in Higher Education Administration from Vanderbilt University.

11. Mr. Hunter offered the position to Dr. Weinberg pursuant to instructions from President Grissom. Despite the letter which informed the semi-finalists that the top of the salary range was $75,000, Mr. Hunter was informed by the President that no applicant could be offered more than $70,000 per year because of a budget shortfall.

12. The salary to be offered to an applicant was based on the application of an established formula to the applicant's experience as follows: subtracting the minimum salary from the maximum salary in the published salary range for the position; dividing that number by (30) to arrive at a multiplier; multiplying the applicant's years of relevant experience (after subtracting the years of experience required to qualify for the position) by the multiplier; and adding the result to the minimum salary in the range. The multiplier for the Vice President's position was $1,000.

13. In applying the salary formula to Dr. Weinberg, Mr. Hunter determined that he had 29 years of relevant experience. He then subtracted the five years required

    experience, resulting in Dr. Weinberg having credit for 24 years of relevant experience, for purposes of the salary formula. The

    24 years of experience was multiplied by $1,000 and added to the

    published base salary of $45,000. This resulted in the initial starting salary to be offered to Dr. Weinberg to be $69,000.

14. Mr. Hunter had authority from President Grissom to add an additional amount of $2,500 per year in order to attract a candidate, provided that no candidate was offered more than

    $70,000 per year.

    
    

15. Dr. Weinberg did not accept the initial offer of

    
    

    $69,000. Mr. Hunter then offered $70,000, which was ultimately rejected by Dr. Weinberg.

16. Pursuant to direction from President Grissom,

    
    

    Mr. Hunter then offered the job to Petitioner. Petitioner holds a Bachelor's degree in Business Administration from Culver- Stockton College; a Master of Science in Guidance Counseling from University of Nevada; a Doctorate in Counselor Education from the University of Iowa; and holds a certificate from Harvard University in the Management Development Program.

17. Mr. Hunter applied the salary formula by determining that Petitioner had 21 years of relevant experience. He subtracted the five required years of experience resulting in 16 years of relevant experience. After multiplying 16 by $1,000 and adding that to the minimum salary of $45,000, Mr. Hunter offered $61,000.00 to Petitioner. When Petitioner did not accept the offer, he increased the offer to $62,500. Although he was authorized to offer him $63,500, it was Mr. Hunter's

    understanding, after a telephone conversation with Petitioner, that Petitioner would not accept the job for less than $82,000. Therefore, Mr. Hunter did not bother offering the additional

    $1,000 to Petitioner.

    
    

18. In any event, whether or not Mr. Hunter offered

    
    

    $63,500 to Petitioner, he was not authorized to offer $70,000 to Petitioner, as had been offered to Dr. Weinberg, because of the application of the salary formula to Petitioner.

19. Pursuant to instruction from Dr. Grissom, Mr. Hunter next offered the position to Dr. Thomas Eaves. Dr. Eaves holds a doctorate and lesser degrees from North Carolina State University, and has teaching and related research experience at numerous universities.

20. Mr. Hunter applied the salary formula and determined that Dr. Eaves should be offered $67,000. Mr. Hunter was authorized by the President to an additional $500.00 on top of the $2,5000 salary "sweetener" because the college had been turned down twice.

21. Mr. Hunter called Dr. Eaves and initially offered him

    
    

    $67,000. Ultimately, Mr. Hunter increased the offer to $70,000, which was accepted by Dr. Eaves.

22. Petitioner left Virginia Commonwealth University in July 2001 to work at West Chester University where he is Dean of Undergraduate Studies and Student Support Services. His

    starting salary at West Chester University was $84,500. His current salary, which was effective July 1, 2002, is $88,500.

23. If Petitioner had accepted the position at NFCC for

    
    

    $63,500, he would have received a five percent pay increase in 2000 to $66,675 per year. However, because of a college-wide salary freeze which has been in place since 2000, Petitioner would not have received any further salary increases.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Sections 120.569 and 120.57, Florida Statutes (2002).

25. Section 760.10(1) states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race.

26. In order to make out a prima facie case of race discrimination under Section 760.10(1)(a)2/, Petitioner must show that he was a member of a protected class, that he was qualified for the job he was seeking, and that a person outside the protected class with equal or lesser qualifications was hired. See McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973); and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under this well established model of proof, a Petitioner bears the initial burden of establishing a prima facie case of discrimination.

27. Arguably, Petitioner has met his burden of proving a prima facie case of race discrimination. He is African- American, he was qualified for the job he was seeking, and persons outside the protected class who were also qualified were offered the position.

28. When the charging party, i.e., Petitioner, is able to make out a prima facie case, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. See Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting burdens of proof in discrimination cases). The employer has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Department of Corrections v.

    Chandler, supra; Alexander v. Fulton County, GA, 207 F.3d 1303 (11th Cir. 2000).

29. Respondent has met its burden of production.

    
    

    Respondent has adequately articulated a legitimate, non- discriminatory explanation for hiring Dr. Eaves and for offering him, and Dr. Weinberg, a higher salary than was offered to Petitioner. Respondent established that its policy is to apply the salary formula using an applicant's relevant years of experience within the salary range approved by the Board of Trustees. The upper limit of the salary range was not offered

    to any of the finalists for the same budgetary reasons. The salary formula was applied in the same manner to the three finalists who received job offers. As such, Respondent has asserted a legitimate non-discriminatory reason for offering a higher salary to the other two finalists. The employment actions of Respondent were based upon legitimate means that did not penalize Petitioner based upon his race.

30. Once the employer articulates a legitimate non- discriminatory explanation for its actions, the burden shifts back to the charging party to show that the explanation given by the employer was a pretext for intentional discrimination.

    "The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Department of Corrections v. Chandler, 582 So. 2d 1183 at 1186; Alexander v.

    Fulton County, GA, supra. Petitioner has not met this burden.

    
    

31. Other than Petitioner's assertions that he believed that he was the top candidate and should have been offered the same salary as the other two finalists, Petitioner presented no evidence establishing that Respondent's actions were pretextual.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination.

DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2003.

ENDNOTES

1/ Petitioner does not allege that the other candidates who were offered the job were not qualified. The thrust of his charge is that he believes that he was the top candidate and, therefore, should have been offered as much money as the other candidates.

Petitioner believes that he was offered less money because of his race.

2/ FCHR and Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

COPIES FURNISHED:

Quincy L. Moore

41 Green Briar Road Thorndale, Pennsylvania 19372

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Bruce A. Leinback, Esquire Bird & Leinback

Post Office Box 15556 Tallahassee, Florida 32317

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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.

Docket for Case No: 03-001612

Orders for Case No: 03-001612