STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION L. HURST, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2190

)

V. JAMES NAVITSKY and MARTIN ) COUNTY SCHOOL BOARD, )

)

Respondents. )

and )

) NORMAN A. JACKSON, EXECUTIVE ) DIRECTOR, FLORIDA COMMISSION ) ON HUMAN RELATIONS, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 19,

20 and 21, 1980, at the Instructional Center of the Martin County School Board in Stuart, Florida.

APPEARANCES

For Petitioner: Paul A. Gamba, Esquire

Post Office Drawer 1016 1451 East Ocean Boulevard Stuart, Florida 33494

For Respondent: Douglas K. Sands, Esquire

300 Colorado Avenue Post Office Box 287 Stuart, Florida 33494

For Intervenor: Marva A. Davis

Assistant General Counsel

2562 Executive Center, Circle E Tallahassee, Florida 32301

INTRODUCTION

The issue for determination in this proceeding is whether the respondents committed unlawful employment practices when a candidate other than petitioner was appointed to the Indiantown Middle School principalship in July of 1978 and

/or the Murray Middle School curriculum coordinator position in September of 1978. It is the petitioner's contention that he was denied these two positions

on the basis of racial discrimination. The respondents contend that the persons appointed to these two positions were better qualified than the petitioner.

The undersigned permitted the parties to present evidence concerning acts and other administrative appointments within the Martin County school system which occurred both before and after the effective date of the Human Rights Act. Such evidence has been considered insofar as it is corroborative of a pattern of conduct, course of action or otherwise either evidences or fails to evidence intent to engage in racial discrimination on the part of the respondents.

During the hearing, the petitioner and the intervenor offered into evidence the "Determination: Cause" signed by the intervenor's Executive Director. The respondent objected. The respondent having stipulated to the jurisdiction of the Florida Commission on Human Relations and the undersigned finding no other probative value to be assigned to this document, the objection was sustained.

After the hearing was closed, the petitioner moved to introduce certain exhibits into evidence. The respondent objected. Based upon the hearsay nature of such documents as well as the remoteness in time of the events contained therein, the respondents' objection is sustained.

The parties have submitted written closing statements, as well as proposed recommended orders. These documents have been carefully considered by the undersigned. To the extent that the proposed findings of fact are not included in this Recommended Order, they are rejected as being either unsupported by competent, substantial evidence, irrelevant and immaterial to to the issues for determination or as conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The petitioner Marion L. Hurst, a black male, has been employed with the Martin County school system since 1969. He presently holds an M.S. degree in Educational Administration and a Rank II certification in administration. Petitioner lacks two hours of graduate courses to add the subject of supervision to his certification. For the past nine years, in addition to teaching social studies classes, petitioner has held the position of team leader at Stuart Middle School, being responsible for the seventh grade reading, language arts and social studies programs. This involves approximately 350 students, six teachers and one or more teacher aides. The duties of a team leader include the scheduling and "levelling" of students, scheduling special assignments to teachers within the team, coordinating information and activities from the administration to the teachers, and weekly meetings with the school administrators.

   
   

2. The petitioner adduced evidence that his teacher evaluations during his tenure at Stuart Middle School had been good to excellent overall. In contrast, the respondent presented evidence from several of his coworkers that petitioner occasionally has communication problems with the members of his team, receives complaints from the parents of his students regarding excess paperwork by the students as opposed to teaching by petitioner, and grammatical and spelling errors on petitioner's blackboard. While it is the team leader's responsibility to schedule students, petitioner has for the past several years utilized the reading teacher, Ms. Askeland, to perform that task.

   
   

3. The petitioner has applied for many administrative positions in the school system. In April of 1977, petitioner, along with several other persons,

   applied for the position of assistant principal of Martin County High School -- the only high school in the county. The job description for that position required a Rank II certification with coverage in administration, supervision or curriculum. Petitioner did hold a Rank II certification in administration at the time of his application for the position. Another applicant, Wanda Yarboro, did not hold a Rank II certification with coverage in the required fields in April, 1977.

   
   

4. Respondent Navitsky, Superintendent of the Martin County school system, recommended to the School Board that Ms. Yarboro receive the appointment as assistant principal of Martin County High School. Either because of a lack of funding due to the reorganization of the administration at Martin County High, or because Ms. Yarboro did not hold the certification required in the job description, the School Board originally failed to approve her appointment. During the summer months of 1977, a change was being effected in the School Board policy. The change allowed instructional administrators to acquire within twelve months of assignment a certificate covering the areas in which they are placed. Ms. Yarboro's appointment as assistant principal was approved by the School Board in August of 1977, and she received her certification in administration and supervision on September 28, 1977.

   
   

5. Conflicting evidence was adduced at the hearing on the issue of whether Dr. Clifford Rollins, a person holding a higher ranked certificate and greater administrative experience than either Ms. Yarboro or petitioner, was also a candidate for the assistant principalship of Martin County High School in April of 1977. While his name appears on several lists of candidates for this position, the greater weight of the evidence leads to the finding that Dr. Rollins was not a candidate for that position. Superintendent Navitsky, though aware of Dr. Rollins desire to return to Martin County, did not consider him a candidate. Dr. Rollins testified that he was not a candidate for the position of assistant principal of the high school. While he did express an interest in returning to the community, he did not apply for this position because he was a former principal of that school and also because he was aware that other teachers and the department chairmen wanted Ms. Yarboro, who had been at the school for some time, to be promoted to the assistant principalship. Dr. Rollins had instructed the school personnel office to keep his application file active and this fact was offered in explanation of why his name appears on the list of candidates for the position.

   
   

6. Ms. Yarboro had formerly occupied the position of department head of social studies at Martin County High School, which position became vacant upon her promotion to assistant principal. Although the school principal had recommended that Ann Crook be promoted to department head, Superintendent Navitsky called petitioner Hurst and offered him the position. This position involved responsibility for 33 teachers. Dr. David Anderson, a member of the Martin County School Board, received numerous telephone calls from other teachers at the high school in opposition to petitioner's appointment as department head of social studies. Dr. Anderson became concerned that petitioner was being "set up" in a hostile environment which would eventually lead to poor evaluations of petitioner and dismissal from his administrative position. Anderson believed that such an appointment may not be a good way for petitioner to begin his administrative career. Thereupon, Dr. Anderson arranged a meeting with Superintendent Navitsky, petitioner, himself and several other administrators. Dr. Anderson expressed his concerns at this meeting. Mr. Navitsky offered petitioner his support if he accepted the position. After discussing the matter, petitioner decided to withdraw his name as a candidate for the department head position. Superintendent Navitsky assured petitioner

   that declining the position would not adversely affect his candidacy for other positions. Petitioner believed that Navitsky was making him a promise that he would be appointed to the next administrative position. Gilbert Miller, the deputy superintendent for noninstructional services, was present at the meeting and recalled that Navitsky made no promise that petitioner would receive a specific appointment at a specific time in the future, but only an indefinite promise of a future administrative position.

   
   

7. The next administrative position applied for by petitioner occurred in July of 1978. The former principal of Indiantown Middle School, located some twenty miles west of Stuart, resigned on short notice. Seven or eight persons applied for the position. Superintendent Navitsky interviewed all the candidates, including petitioner and Dr. Clifford Rollins. As noted above, Dr. Rollins had previously been the principal at Martin County High School. He had also been a principal at another Indiantown school and had most recently been a director of teacher education and the acting chairman of the department of education at a college in West Virginia. Dr. Rollins was recommended to the School Board by Superintendent Navitsky to fill the Indiantown Middle School principalship because of his past administrative experience and his previous service with and knowledge of the school district and the Indiantown area. The School Board approved the recommendation of Dr. Rollins. All witnesses, including petitioner Hurst, agreed that Dr. Rollins had better credentials than petitioner for this position.

   
   

8. In August of 1978, the administrative position of curriculum coordinator at Murray Middle School became available. Seven or eight persons applied for the position, including the petitioner. The duties of a curriculum coordinator at a middle school include working with teachers to help develop curriculum and choose teaching material, evaluating testing and teaching techniques, assisting and scheduling students, evaluating teachers and a general knowledge of curriculum content at all levels. The principal at Murray Middle School, Edward Sheridan, personally interviewed all candidates for the position and developed a factoring or rating sheet for each candidate. He also discussed the candidates with his assistant principal, Quilley McHardy. The candidate receiving the highest rating was Joan Gallagher and Mr. Sheridan therefore recommended her for the position. Assistant Principal McHardy, a black, concurred in the recommendation. Superintendent Navitsky recommended her to the School Board because of Mr. Sheridan's recommendation and Ms. Gallagher was appointed as the curriculum coordinator at Murray Middle School.

   
   

9. Joan Gallagher has been in the field of education for seventeen years. Until 1974, she taught at the elementary school level. Since 1974, she had been a sixth grade teacher at Murray Middle School and was the sixth grade team leader for a few months immediately prior to her appointment as curriculum coordinator. Two witnesses who were employed at Stuart Middle School had worked with both Ms. Gallagher and petitioner Hurst. The curriculum coordinator at Stuart testified that Ms. Gallagher was superior to petitioner Hurst in scheduling techniques. Ms. Askeland, the seventh grade reading and language arts teacher at Stuart who helped petitioner with scheduling at Stuart, testified that Ms. Gallagher had a better knowledge and understanding of curriculum concepts than petitioner.

   
   

10. In the summer or fall of 1978, several members of the Young Men's Progressive Association, a civic organization of black businessmen and professionals, met with Superintendent Navitsky regarding the lack of black teachers in high school academics and in administration. According to two witnesses who attended the meeting, Mr. Navitsky acknowledged this problem, was

    sympathetic to their concerns, and agreed to do what he could to remedy this situation. While these witnesses felt there had been systematic discrimination in the school system, it was acknowledged that progress had been made in the promotion and recruitment of black teachers in Martin County due to the positive efforts of Superintendent Navitsky.

    
    

11. Joint Exhibits 1A through 1D illustrate that during the period between 1974 and 1979, black persons received the appointment to an administrative position in those instances where they were candidates sixty percent of the time. In those instances where the only candidate was black, he or she received the appointment. Also, the percentage of black administrators to the total population of administrators in the Martin County school system increased from

    13.6 percent in the 1974-75 school year to 19.2 percent in the 1979-80 school year. As of the date of the hearing in this cause, one-half of the ten available administrative positions in the 1979-80 school year were filled or offered to black candidates. In two of the instances where whites were appointed, there were no black candidates for the position.

    
    

    CONCLUSIONS OF LAW

    
    

12. The pertinent provisions of the Human Rights Act of 1977 (codified as Part IX of Chapter 23, Florida Statutes, 1979) from which the Commission on Human Relations derives its jurisdiction, became effective on July 1, 1978. Section 23.167, Florida Statutes (1979), provides that it is an unlawful employment practice for an employer to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment because of such individual's race or color. When an unlawful employment practice has been established, the aggrieved person is entitled to affirmative relief. Thus, the issue in this case is whether the respondents' failure to appoint petitioner to the positions of principal of Indiantown Middle School and curriculum coordinator of Murray Middle School (the two events occurring after July 1, 1978) constituted unlawful employment practices within the meaning of Florida Statutes Section 23.167(1).

    
    

13. The Florida Human Rights Act is similar to and patterned after Title VII of the Federal Civil Rights Act of 1964, as amended. Federal cases which construe the federal act are thus persuasive and offer guidance in interpreting the Florida act. Pasco County School Board v. Florida Public Employees Relation Commission, 353 So.2d 108 (Fla. 1st DCA, 1977). The order and allocation of proof in actions challenging employment discrimination has been established in the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). There, the United States Supreme Court held that the initial burden is upon the complainant (employee) to establish a prima facie case of racial discrimination. The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action, whereupon the complainant must then be given the opportunity to demonstrate by competent evidence that the employer's reasons were in fact a coverup or a pretext for a racially discriminatory decision.

    
    

14. Taking first the Indiantown Middle School principal position for which petitioner applied and Dr. Clifford Rollins received the appointment, it is concluded that petitioner has failed to make a prima facie case of racial discrimination in the appointment decision. The evidence conclusively demonstrates, and petitioner so admits, that Dr. Rollins was the candidate with the best credentials for the position. Petitioner offered no evidence to suggest that race was a motivating factor in this appointment process. Petitioner's allegation of disparate treatment on the ground that Ms. Yarboro received the appointment in 1977 for the assistant principalship of Martin

    County High School when Dr. Rollins was the better qualified candidate for that position is unsupported by the record in this proceeding. Dr. Rollins was not a candidate for appointment to that position. In summary, the petitioner has failed to make a prima facie case of an unlawful employment practice with respect to the appointment of Dr. Rollins as the Indiantown Middle School principal.

    
    

15. With respect to the curriculum coordinator position at Murray Middle School, the undersigned finds that petitioner did present evidence that he held the required qualifications for the position and that a racially biased statement was made by Principal Sheridan concerning the appointment. However, the respondent presented sufficient evidence that such a statement was not made, and that the recommendation and appointment of Ms. Gallagher to the position was based upon the administrators' opinions that Ms. Gallagher was better qualified than petitioner to be the curriculum coordinator. Petitioner has failed to demonstrate that the reasons for appointing Ms. Gallagher constituted a mere pretext for a racially discriminatory decision.

    
    

16. In summary, with regard to the two appointments in dispute herein, the respondents have articulated and proven valid, nondiscriminatory reasons for the decisions made. Petitioner has failed to prove that there was discriminatory intent or that the reasons were merely pretextual. The evidence offered by both the petitioner and the respondents as to activities occurring prior to July 1, 1978 -- the effective date of the Human Rights Act, was not sufficient to establish a pattern of conduct evidencing either racial discrimination or nondiscrimination in the promotion practices of the school system in Martin County. Unrebutted evidence concerning other administrative appointments over the past six years would suggest an absence of racial motivation in the appointment process.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is recommended that the Commission on Human Relations enter a final order finding that the respondents did not engage in unlawful employment practices in appointing Dr. Rollins to the position of principal of Indiantown Middle School or in appointing Ms. Gallagher to the position of curriculum coordinator of Murray Middle School; dismissing petitioner's petition for relief in this cause; and denying petitioner's motion for attorney's fees.

Respectfully submitted and entered this 25th day of June, 1980, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Paul A. Gamba, Esquire Post Office Drawer 1016 1451 East Ocean Boulevard Stuart, Florida 33494

Douglas K. Sands, Esquire

300 Colorado Avenue Post Office Box 287 Stuart, Florida 33494

Marva A. Davis, Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center, Cricle E Tallahassee, Florida 32301

Norman A. Jackson, Executive Director Florida Commission on Human Relations 2562 Executive Center, Circle E Tallahassee, Florida 32301

Docket for Case No: 79-002190

Orders for Case No: 79-002190