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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES WEAVER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0605

) SCHOOL BOARD OF LEON COUNTY, ) FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in this case was held pursuant to notice on September 9, 1987, in Tallahassee, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter was referred for hearing by the Florida Commission on Human Relations based upon the petition of Dr.

James Weaver to the Commission asserting discrimination on race and sex by the Respondent, School Board of Leon County.

APPEARANCES

For Petitioner: Curley R. Doltie, Esquire

Post Office Box 125

Tallahassee, Florida 32302-0125

For Respondent: C. Graham Carothers, Esquire

AUSLEY, McMULLEN, McGEHEE, CAROTHERS & PROCTOR

227 South Calhoun Street Post Office Box 91 Tallahassee, Florida 32302

The parties filed Proposed Findings of Fact and Conclusions of Law in this case, which are treated in Appendix A attached hereto and incorporated by reference herein.

ISSUES

The Petitioner's Amended Petition for Relief involves matters which have been the subject of final agency action in other administrative and court proceedings in which the Petitioner was a party. On September 1, 1987, the Respondent filed a "Motion to Take Official Recognition" pursuant to Section 120.61, Florida Statutes, in which the Respondent prayed for an order taking official recognition of the Final Orders in each of those proceedings and prohibiting the parties from relitigating issues previously adjudicated in those proceedings. Respondent's motion is well taken and is GRANTED in all respects. Therefore, the hearing is limited to a consideration of whether the Respondent was in violation of Section 760.10, Florida Statutes. The issue presented is whether the Respondent has discriminated against the Petitioner in its

employment practices on the basis of the Petitioner's race or sex in violation of Section 760.10, Florida Statutes, in the hiring of persons for the 15 positions for which the Petitioner applied between January 1, 1985 and August 27, 1985.

FINDINGS OF FACT

1. Stipulation and Admissions

   
   

   1. Petitioner is a black male.

      
      

   2. Respondent is a public employer within the meaning of Section 760.02(6), Florida Statutes.

      
      

   3. During the period between January 1, 1985 and August 27, 1985, the Petitioner applied for 15 positions within the school district of Leon County, Florida.

      
      

2. Findings Based on Evidence Presented at Hearing

   
   

   1. Petitioner, James Weaver, holds a bachelor's degree in political science with a minor in history from North Carolina A & T State University in Greensboro, North Carolina; a master's degree in education with a concentration in social studies from the same institution; and a Ph.D. in education leadership with a concentration in adult education and social studies from Florida State University. The Petitioner held these degrees prior to his employment with the Respondent. The Petitioner has been certified to teach social studies in grades 7-12 since July 1, 1978 and is certified through June 30, 1993. The Petitioner taught social studies at North Carolina A & T State University while working on his master's degree in 1974-75. While an officer in the U.S. Air Force, he taught history at Gulf Coast Community College in Panama City, Florida. The Petitioner was given a year's teaching credit for teaching social studies at FAMU High School from January 1980 until June 1980. Petitioner was a substitute teacher for the Leon County School Board from the period 1979 until 1985. He held a temporary position with the Leon County School Board from November 2, 1984 until March 15, 1985. He had significant teaching experience.

      
      

   2. Based upon his master's degree in social studies, the Petitioner is qualified to teach social studies in the schools of the State of Florida. This is the minimum qualification necessary for the positions for which the Petitioner applied.

      
      

   3. The Petitioner applied for 15 positions, six of which were part-time hourly positions and nine of which were full-time. The Respondent filled 11 of the 15 positions. Four of the positions, one full-time and three part-time, were not filled due to budgetary constraints. However, one full-time position was filled twice and one part-time position was filled twice. Consequently, there were nine hiring opportunities for full-time positions and four hiring opportunities for part-time positions.

      
      

   4. The evidence indicates that the wages and benefits for the part-time positions were less than the wages and benefits for full-time positions. When the statistics are analyzed separately for full-time and part-time positions which were actually filled, a picture develops which is different from what Respondent reports.

   5. The Respondent reports that there were 109 white applicants and 73 black applicants and 1 applicant from the group denominated as "other" for all

      15 positions. Further, Respondent represents that 89 of these applicants were male and 94 were female. Based upon these statistics, approximately 60 percent of the applicants for the 15 positions were white and 40 percent were black.

      The Respondent represents that 64 percent of the persons hired were white and 36 percent were black based upon its statistics which combine full-time and part- time positions and positions which were filled and not filled. These representations distort the real picture and are rejected.

      
      

   6. There were only 23 applicants for the three part-time positions which were actually filled: 15 blacks (65 percent) and 8 whites (35 percent). There were 85 applicants for the full-time positions which were actually filled: 27 blacks (32 percent) and 58 whites (68 percent). The 35 percent of applicants for part-time jobs who were white accounted for 50 percent of those hired, and the 68 percent of the applicants for full-time jobs who were white accounted for

      87.5 percent of those hired.

      
      

   7. Appendix B, based on Respondent's Exhibits 8 and 9, is included and made a part of these findings. Appendix B sets forth the closing date, position number, location, type of position, number of applicants, a break down of the applicants by race and sex, the race and sex of the individuals hired to fill the positions, and indicates by a single asterisk those positions in which individuals were hired who had not applied for the positions.

      
      

   8. In Appendix B, those positions indicated by an asterisk clearly reflect that the individuals hired to fill the position are inconsistent with the race and sex of applicants reportedly applying for the jobs. For example, in the first position, a white male was hired for the position yet the break down of the applicants by race and sex indicate that there were no white male applicants. Either the Respondent hired persons to fill the positions who did not apply for the positions or the data provided by the Respondent in Exhibits 8 and 9 to show the relative equality of its hiring practices is inaccurate.

      
      

   9. The Respondent offered the testimony of those administrators who made the hiring recommendation to the Respondent regarding the positions involved in this case. In two cases, position 0040-0011 and position 0040-0001, the reason the Petitioner was not hired was that the administrator making the recommendation was actually hiring a coach for one of the school's athletic teams; however, coaching was not a stated part of the positions' criteria. At Fairview, the Petitioner was not considered because the administrator could not contact the Petitioner at his home number during the day. Other administrators within the system indicated that they called applicants after 5:00 p.m. and took other action to notify them of job interviews. In the remaining cases, the administrators stated that the sole reason they did not hire the Petitioner was because he lacked experience in teaching.

      
      

   10. There was no evidence presented concerning the experience of Messina who filled position 0590-0004, the Detention Teacher at Rickards High School. Nix(W/F) had a BS and two years of experience, Davis(W/M) had a BS and five years of experience, McCarron(W/F) had a BS and six years of experience, and Boggs(W/M) had an MS and five years of experience. Nix, who had the least experience, was employed in two full-time positions at Fairview Middle School.

       
       

   11. Only the administrator at SAIL facility presented credible testimony that the conditions of teaching at that facility were unique and that Cynthia Waddell, who was employed, possessed specialized training and experience

       required in the job. It was established that the Respondent had a legitimate, nondiscriminatory reason for not hiring the Respondent at SAIL.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has juris- diction over the parties to and the subject matter of this proceeding. Section 760.10, Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person by refusing to hire such person because of the person's sex or race.

   
   

   1. In order to establish a prima facie case, the Petitioner must show:

      (1) that he belongs to a racial or sexual minority; (2) that he applied and was qualified for a job for which the employer was seeking an applicant; (3) that he was rejected despite his qualifications; and (4) that after his rejection, the position remained open and the employer continued to seek applicants from persons with the complainant's qualifications. See McDonald Douglas Corp. vs. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817; and Holmes vs. Bevilacqua, 774 F.2d 636 (4th Cir. 1985).

      
      

   2. By stipulation, the parties have agreed that the Petitioner is a black male, the Respondent is a public employer within the meaning of Section 760.02(6), Florida Statutes; and that the Petitioner applied for 15 positions within the school district of Leon County, Florida. The evidence reflects that the Petitioner was fully certified to teach in any of the 15 positions for which he applied. Nine of those positions were full-time positions, and six were

      part-time positions. The only position in which the Petitioner was employed was a part-time position as an adult education teacher in which the number of hours he taught was limited. Because of the difference in full- time and part-time positions, they will be considered separately.

      
      

   3. The Petitioner, in addition to showing that he meets the first three criteria above, also has established that the employer hired persons with the complainant's qualifications for full-time positions having considered and rejected the Petitioner's application. Petitioner establishes a prima facie case of violation of Section 760.10, Florida Statutes. The Respondent bears the burden of showing that the Respondent had a legitimate, nondiscriminatory reason for not employing the Petitioner in the full-time positions for which the Petitioner had applied and which were filled by other applicants.

      
      

   4. The Respondent presented statistical data related to the race and sex of the applicants and the persons hired for the positions in question and the testimony of various administrators who made hiring recommendations related to the positions. The statistical evidence of Respondent erroneously considered part- time and full-time positions together. Further, the data is either (1) inaccurate and, therefore, unreliable, or (2) 4 of 11 persons hired did not apply for their jobs. See Appendix B. Assuming that the data is accurate, the statistics are not favorable to the Respondent if adjusted to exclude data for the positions which Respondent chose not to fill. (See Paragraph 7, Findings of Fact).

      
      

   5. The statistics reveal that 68 percent of the applicants for the most desirable, full-time positions were white, yet they filled 87.5 percent of the positions. In fact, of nine hiring opportunities for full-time positions, only one black was hired. The fact that Parrish (B/M) was hired to fill two different positions inflates the Respondent's percentages 11 percent to 12.5 percent. When the data on less desirable, part-time positions is adjusted to

      exclude data on positions which the Respondent chose not to fill, it reveals that 35 percent of the applicants were white, yet 50 percent of those hired were white.

      
      

   6. It is difficult to reconcile this disparity in the percentages of blacks hired with the statements of the administrators that their choices were made on legitimate, non- discriminatory grounds. The testimony of the administrators reflects that Petitioner was not hired because (a) he was not a coach, (b) he could not be reached between 8:00 a.m. and 5:00 p.m. at his home, and (c) he lacked teaching experience.

      
      

   7. Petitioner was certified in social studies, in which he has an advanced degree and which he taught at the college level. Petitioner was qualified to be a detention teacher, which has no specified academic criteria. Presumably Petitioner's experience as an officer in the U.S. Air Force, if not his doctorate, would qualify him to maintain discipline the students in detention class.

      
      

   8. There is no explanation why another applicant, Messina was hired for the position of Detention Teacher at Rickards High School. Nix (W/F), who had two years of experience and a bachelor's decree, was hired to fill two positions at Fairview Middle School, Detention Teacher and Social Studies Teacher, presumably because the school secretary could not contact Petitioner. The primary basis for hiring Davis (W/M) and Boggs (W/M) as a social studies teachers was their experience as coaches, although the stated criteria for positions 0040-0010 and 0040-0001 did not reference coaching, and although the Petitioner advised one administrator he would coach if that was necessary. The grounds stated fall short of legitimate, nondiscriminatory reasons for not hiring the Petitioner. Only one administrator, the principal at SAIL, articulated a legitimate, non- discriminatory reason for not hiring the Petitioner.

      
      

   9. The fact that the Petitioner was hired in a part-time position in which the hours he could work and the amount he could earn was limited does not insulate the Respondent from a charge that it discriminated against Petitioner with regard to full-time positions. The Petitioner has presented a prima facie case with regard to the full-time positions for which he applied. The Respondent failed in its attempt to show by statistics and testimony that it had legitimate, nondiscriminatory grounds for hiring other applicants for these

      full-time positions.

      
      

   10. In summary, the Petitioner showed a violation of Section 760.10, Florida Statutes. Petitioner is entitled to the relief prescribed by statute. See Section 760.10(13), Florida Statutes.

   
   

   RECOMMENDATION

   
   

   Having found that the Petitioner has presented a prima facie case of discrimination, and having found that the Respondent did not have a legitimate, nondiscriminatory reason for not hiring the applicant, it is

   
   

   RECOMMENDED that the Commission grant the Petitioner such relief as is necessary to rectify the Respondent's discrimination against him to include but not limited to a Final Order directing the Respondent to desist from its discriminatory practices, to hire Petitioner in a full-time position, and to award him attorney fees.

   DONE and ORDERED this 18th day of November, 1987, in Tallahassee, Florida.

   
   

   STEPHEN F. DEAN

   Hearing Officer

   Division of Administrative Hearings The Oakland Building

   2009 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1987.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0605

   
   

   The Respondent presented Proposed Findings of Fact and Conclusions of Law which were read and considered by the Hearing Officer, as follows:

   
   

   1. Incorporated in Appendix B.

   2. Adopted.

   3. Rejected on the basis of the inconsistencies in the data pointed out in Appendix B.

   4. True; however, it is rejected as irrelevant.

   5-6. Rejected on the basis of the inconsistencies in the data pointed out in Appendix B.

   7-9. Consistent with the testimony of the administrators; however, their testimony is inconsistent with the statistical facts and it is highly doubtful that these administrators would admit to any discriminatory motive.

   8-10. Portions of these paragraphs relating to the Petitioner's background experience and certification are adopted and consolidated.

   1. Rejected. See transcript, page 69.

   2. First sentence is rejected as inconsistent with the evidence. Remainder of the paragraph is rejected as irrelevant.

   3. Although the Notice of Determination: No Cause was read and considered, it was concluded that the Commission's hearing officer had not considered the eight full-time positions separately and had not identified the inconsistencies in the statistics submitted by the Respondent.

   
   

   The Petitioner presented Proposed Findings of Fact and Conclusions of Law which were read and considered by the Hearing Officer, as follows:

   
   

   1-8. Adopted

   9. Rejected as irrelevant 10-12. Adopted

   13 Restated in greater detail. SAIL articulated a legitimate, nondiscriminatory reason for not hiring Petitioner.

   14. Petitioner lost the wages he would have earned from Respondent. Petitioner was not employed in other positions during the period. However, the statute apparently does not permit recovery of economic damages, therefore, 14 is irrelevant.

   
   

   APPENDIX A

   
   

   SCHOOL # APPS. B/M B/F W/M W/F HIRED

   
   

   *01/08/85	0040-0011	Lincoln Soc. Studies 3				1	1	0	1	W/M	Davis
   01/11/85	0590-0004	Rickards Det. Tchr. 12				2	4	2	4	W/M	Messina
   01/11/85	0011-0051	Ad. Ed. Adult Ed. 8				1	6	1	0	B/M	Weaver
   01/18/8	0040-0003	Rickards Soc. Stud. 7				2	0	2	3	B/M	Parrish
   *01/18/85	0011-0051	Ad. Ed. Adult Ed. 3				0	0	1	2	B/M	Weaver
   *01/25/85	0011-0087	Gilchrist	Adult	Ed.	13	3	5	0	W/F 4	Stephenfield W/M Andrews
   02/01/85	0011-0051	Ad. Ed.	Adult	Ed.	26	3	8	4	11	N/A
   02/08/85	0011-0087	Gilchrist	Adult	Ed.	4	2	1	0	1	N/A
   02/12/85	0011-0051	Ad. Ed.	Adult	Ed.	12	2	2	3	5	N/A
   02/15/85	0590-0005	Fairview	Detent. Tchr.			14	5	4	1	4 W/F Nix
   06/14/85	0040-0011	Lincoln	Soc. Studies			14	3	1	8	2 W/F McCarron B/M Parrish
   *06-14-85	0040-0006	SAIL Soc. Studies 6 2				0	4	0		W/F Waddell
   08/23/85	0590-0005	Fairview	Detent. Tchr.			32		5	8	12	7	N/A
   08/23/85	0040-0010	Fairview	Soc. Studies			19		1	0	11	7	W/F Nix
   08/23/85	0040-0001	Leon	Soc. Studies			10		1	0	7	2	W/F Boggs

   
   

   Based upon Resp. Exh. 8 & 9.

   
   

   *Person hired did not apply based on Respondent's data.

   
   

   COPIES FURNISHED:

   
   

   Curley R. Doltie, Esquire Post Office Box 125

   Tallahassee, Florida 32302-0125

3. Graham Carothers, Esquire AUSLEY, McMULLEN, McGEHEE,

CAROTHERS & PROCTOR

227 South Calhoun Street Post Office Box 91 Tallahassee, Florida 32302

Donald A. Griffin Executive Director

Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1570

Docket for Case No: 87-000605

Orders for Case No: 87-000605