STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY C. HARRIS, )

)

Petitioner, )

)

vs. ) Case No. 85-3909

) PINELLAS VOCATIONAL TECHNICAL ) INSTITUTE, and the SCHOOL BOARD ) OF PINELLAS COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on August 25, 1986, in Clearwater, Florida. The following appearances were entered:

For Petitioner: Jeffrey C. Harris (pro se) For Respondent: Bruce P. Taylor, Esquire

Associate School Board Attorney

Post Office Box 6374 1960 East Druid Road

Clearwater, Florida 33516

The issue for determination at the final hearing was whether the Respondent, Pinellas Vocational Technical Institute, a subdivision of the School Board of Pinellas County, committed an unlawful public accommodations practice against Petitioner by expelling him on the basis of race in violation of Human Rights Ordinance Number 84-10 of Pinellas County, Florida.

PROCEDURAL BACKGROUND

By letter dated November 12, 1985, the City of Clearwater requested that the Division of Administrative Hearings assign a Hearing Officer to conduct a formal administrative hearing pursuant to Section 120.65(6), Florida Statutes and Section 99.09(d), Clearwater City Code.

This cause came on for final hearing on August 25, 1986.

Petitioner's Exhibits 2 and 2A and Respondent's Exhibits 1-5 and 7-11 were duly offered and admitted into the record. The parties have submitted post hearing proposed findings of fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact:

1. The Pinellas Vocational Technical Institute is operated by the School Board of Pinellas County, Florida and consists of the Police Academy and the Pinellas Corrections Academy.

   
   

2. The Corrections Academy and the Police Academy are housed in separate buildings and offer different curriculum and degree programs, although certain faculty and staff members are shared.

   
   

3. Students enrolled at the Police Academy or Corrections Academy are usually employed by a police department. The employer police department serves as the sponsoring agency for the student at the Academy.

   
   

4. While employed with the Pinellas County Sheriff's Department, the Petitioner, a black male, was enrolled in Class XI at the Corrections Academy. The Petitioner was removed from his class at the Corrections Academy on December 3, 1984 by Mr. Paul Drolet, the instructor and class coordinator. The Petitioner was subsequently discharged from the Academy by Mr. Mario Vitelli, the Assistant Director.

   
   

5. On December 3, 1984, Mr. Drolet called roll in class and discovered that a white female student, Donna Harper, was not in her assigned seat. Mr. Drolet asked Ms. Harper why she was not in her assigned seat. Ms. Harper, who had been sitting next to the Petitioner, stated that she was annoyed by the Petitioner and the things that he was doing.

   
   

6. Ms. Harper complained that the Petitioner constantly annoyed and bothered her. Ms. Harper stated that the Petitioner constantly opened and closed his briefcase during class and generally displayed a disinterested attitude. This apparently disturbed Ms. Harper. Ms. Harper also complained that the Petitioner's legs and knees were constantly touching hers because

   he would spread his legs real wide and have them over on her space.

   
   

7. The class had been in session for approximately six days and Ms. Harper complained that the Petitioner's actions had been going on since the beginning of class.

8. After Ms. Harper informed Mr. Drolet of Petitioner's actions, he requested that she give a statement to her sponsoring employer, the Hillsborough County Police Department.

   
   

9. After Ms. Harper gave her statement, Mr. Drolet called the Petitioner out of class and asked whether or not the Petitioner wanted to talk about the allegations. The Petitioner stated "I didn't do it, and I have nothing to say". Later, Mr. Drolet informed Petitioner that he was being withdrawn from the class.

   
   

10. The Petitioner had been enrolled in the previous class (class IX) at the Corrections Academy. While in class IX, the Petitioner was late to class on several occasions, was found in the Police Academy building (students in the Corrections Academy are not allowed to go into the Police Academy building without permission) and was caught using the non-public telephone at the academy for personal reasons. The Petitioner's major disciplinary problem while in class IX was a complaint made against him by Tia Throckmorton, a white female student.

    
    

11. Ms. Throckmorton complained to Larry Wagner, the class coordinator, about a series of events involving the Petitioner. Ms. Throckmorton complained that on one occasion, after the class was shown a .22 caliber gun that a female inmate had attempted to smuggle into a local jail by hiding it in her vaginal area, the Petitioner told Ms. Throckmorton that she could probably hide a

    .38 caliber gun in her vaginal area. Ms. Throckmorton also complained that during class breaks, the Petitioner would constantly touch her on the shoulders and neck, even after she would pull away to demonstrate that she did not want to be touched.

    
    

12. On another occasion at the firing range, the Petitioner stood behind Ms. Throckmorton and squeezed next to her in a "grinding" fashion even though there was plenty of space to pass by. Subsequent to that, the Petitioner attempted to follow Ms. Throckmorton home one day after class. Following this last incident, Ms. Throckmorton decided to complain.

    
    

13. The administration of the Corrections Academy, through Mr. Larry Wagner, informed the Pinellas County Sheriff's Department of the complaint by Tia Throckmorton.

    
    

14. Upon receiving the information concerning Ms. Throckmorton's complaint, the Sheriff's office withdrew the Petitioner from the Corrections Academy and conducted an internal affairs investigation into the incident.

    
    

15. The internal affairs investigation resulted in a

    finding that there was insufficient evidence to either prove or disprove the allegations of Ms. Throckmorton. Thereafter, the Sheriff's office re-enrolled the Petitioner at the Corrections Academy for the next class.

    
    

16. Due to a large number of students entering the Corrections Academy in the next term, the administration decided to operate two separate classes simultaneously, numbered X and XI, with Larry Wagner and Paul Drolet as the respective class coordinators.

    
    

17. Due to the prior problems that Petitioner had experienced in Wagner's class, Wagner suggested to Drolet that the Petitioner be placed in class XI, so that Petitioner would feel less stigmatized by his previous withdrawal. Drolet agreed, and the Petitioner was assigned to class XI.

    
    

18. While in class XI, and prior to the complaint against Petitioner by Ms. Harper, Mr. Drolet had experienced problems with the Petitioner. On several occasions, the Petitioner fell asleep in class, including a class on unarmed self-defense. On another occasion, the Petitioner wore a utility uniform to class after the students had been specifically instructed to wear their dress uniforms.

    
    

19. The Petitioner had also been enrolled in a previous class at the Police Academy. While at the Police Academy, the Petitioner fell asleep on several occasions, and wore an improper uniform on at least two occasions. The Petitioner graduated from the Police Academy on January 3, 1984 with an overall rating of "poor" and the lowest grade average of all students in his graduating class.

    
    

20. After Ms. Harper made her complaint against the Petitioner, Mr. Drolet considered the Petitioner's past performance and complaint record at the Pinellas Vocational Technical Institute and recommended to Mr. Vitelli, the Assistant Director, that Petitioner be withdrawn from the academy.

    
    

21. Mr. Vitelli instructed Drolet to question the Petitioner about the incident. When Drolet questioned the Petitioner, the Petitioner stated that he didn't do anything and that he had nothing to say.

    
    

22. Based on the Petitioner's past record of complaints and discipline problems, and on Petitioner's response to the latest complaint, Mr. Vitelli discharged the Petitioner from the Academy on December 3, 1984.

    
    

23. Vitelli explained to Petitioner his right to appeal his

    dismissal from the Academy to the Director of the Pinellas Vocational Technical Institute, to the Director of Adult Education and to the Superintendent of the School Board of Pinellas County. The Petitioner did not avail himself of any of these direct appeals.

    
    

24. The Pinellas County Sheriff's office initiated an internal affairs investigation into the complaint made by Donna Harper, which was scheduled to commence on December 5, 1984.

    
    

25. On December 5, 1984, the Petitioner resigned from the Sheriff's office.

    
    

26. In classes I through XV at the Corrections Academy, a total of 15 different students were withdrawn for disciplinary reasons, 4 of whom were minorities. During the same period, 56 minority students entered the Corrections Academy.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. See Section 120.65(6), Florida Statutes and Section 99.09(d), Clearwater City Code.

    
    

28. Section 2-17.5-4, Pinellas County Code, provides that it is an unlawful discriminatory practice for a person to deny, withhold or refuse an individual full and equal enjoyment of the services of a place of public accommodation because of race. Educational facilities supported in part or whole by public funds are defined as places of public accommodation. See Section 2- 17.5-2(s), Pinellas County Code. By interlocal agreement, Pinellas County has delegated authority for enforcement of this Ordinance, within the geographical area relevant hereto, to the City of Clearwater. The Pinellas County Human Relations Ordinance is markedly similar to, and patterned after the Federal Civil Rights Act. Thus, federal cases construing the federal act are persuasive and offer guidance in interpreting the local act. See Pasco County School Board v. Florida PERC, 353 So. 2d 108 (Fla. 1st DCA, 1977).

    
    

29. In a discrimination case, the Petitioner has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. If the Petitioner succeeds in establishing the prima facie case, the burden shifts to the Respondent to articulate some legitimate nondiscriminatory reason for the actions complained of. Should the Respondent carry this burden, Petitioner must then have the opportunity to prove, by preponderance of the evidence, that the legitimate reasons offered by the Respondent were not its true reasons, but were a

    pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct 1089 (1981). To establish the prima facie case, the Petitioner must present facts which "raise an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of inpermissible factors." Id. at 450 U.S. 254. It is at this point that a Petitioner's burden of proving pretext and his ultimate burden of persuasion merge, requiring that the complainant establish the existence of intentional discrimination.

    
    

30. The Petitioner has failed to meet his burden of establishing that the Respondent discriminated against him on the basis of race. While the Petitioner did establish a prima facie case, the Respondent articulated legitimate, nondiscriminatory reasons for the actions complained of. Thereafter, the Petitioner failed to show that the articulated, nondiscriminatory reasons were a mere pretext for unlawful discrimination. The Petitioner failed to show that he was treated differently than similarly situated white students or that his race formed the basis for the actions complained of.

    
    

31. While reasonable minds may differ as to the appropriateness of expulsion as a sanction for the allegations of misconduct made against Petitioner by Tia Throckmorton and Donna Harper, the Petitioner has not shown the crucial element that he must discriminatory intent. The Petitioner was expelled because of the recent allegations by Donna Harper in conjunction with the previous allegations of Tia Throckmorton and his overall performance within the Academy. In an employment case, unless the complainant proves that he was treated differently on account of his race from other employees with the same work history, committing the same type of infractions, the employer is not guilty of racial discrimination even if the employee is discharged unnecessarily or in error. See Turner v. Texas Instruments, Inc., 555 F 2d 1251 (5th Circuit 1977). The same principles apply here where the Petitioner was expelled from an educational institution. Of course, the existence or nonexistence of reasonable and objective grounds for the challenged action may be probative on the issue of discriminatory intent. However, in the instant case, the evidence fell far short of establishing that the consideration of race played any part in Respondent's decision to expel him from the Academy.

RECOMMENDATIONS

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered dismissing the complaint and the Petition for Relief filed by Mr. Jeffrey C. Harris.

DONE and ORDERED this 27th day of March, 1987 in Tallahassee, Florida.

W. MATTHEW STEVENSON, Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1987.

COPIES FURNISHED:

Bruce P. Taylor, Esquire

School Board of Pinellas County Post Office Box 6374 Clearwater, Florida 33518

Jeffrey C. Harris

2805 West Horatio Street Tampa, Florida 33619

Miles A. Lance, Esquire Post Office Box 4748

Clearwater, Florida 33518-4748

Community Relations Board City of Clearwater

Post Office Box 4748 Clearwater, Florida 33518-4748

Pinellas Vocational Technical Institute

6100 154 Avenue, North

Clearwater, Florida 33520

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings

of Fact Submitted by the Petitioner

1. Rejected as a recitation of testimony.

2. a. Rejected as contrary to the weight of the evidence.

   1. Rejected as contrary to the weight of the evidence.

   2. Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate and/or

      misleading.

3. a. Rejected as contrary to the weight of the evidence.

   1. Rejected as a recitation of testimony.

   2. Partially adopted in Finding of Fact 18. Matters not contained therein are rejected as contrary to the weight of the evidence and/or subordinate.

   3. Partially adopted in Findings of Fact 5 and 8. Matters not contained therein are rejected as subordinate and/or misleading.

   4. Rejected as contrary to the weight of the evidence and/or subordinate.

Rulings on Proposed Findings

of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 1.

3. Adopted in Finding of Fact 2.

4. Adopted in Finding of Fact 26

5. Adopted in Finding of Fact 26.

6. Adopted in Finding of Fact 19.

7. Rejected as subordinate.

8. Adopted in Finding of Fact 19.

9. Rejected as subordinate.

10. Adopted in Finding of Fact 19.

11. Adopted in Finding of Fact 19.

12. Rejected as subordinate.

13. Adopted in Finding of Fact 19.

14. Adopted in Finding of Facts 10 and 18.

15. Rejected as subordinate.

16. Adopted in Finding of Fact 10.

17. Adopted in Findings of Fact 11 and 12.

Docket for Case No: 85-003909

Orders for Case No: 85-003909