STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNETTE M. MEYERS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4323

) NASSAU COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on January 16, 1992 in Fernandina Beach, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Harry L. Lamb, Jr., Esquire

Perry & Lamb, P.A.

605 E. Robinson Street, Suite 630

Orlando, Florida 32801

For Respondent: Marshall E. Wood, Esquire

303 Centre Street, Suite 200 Post Office P

Fernandina Beach, Florida 32034 STATEMENT OF THE ISSUE

Petitioner has brought a claim, pursuant to the Florida Human Rights Act of 1977 as amended [Section 760.10 et.seq., F.S.], alleging that she was denied a promotion to the position of "Assistant Principal-Student Services" at the Fernandina Beach High School and that such action was racially discriminatory.

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Margaret McKee, Superintendent Craig Marsh, and Dr. William R. Fryar, and testified in her own behalf.

Petitioner had 12 exhibits admitted in evidence. Respondent presented the oral testimony of Eugene Grant and had 10 exhibits admitted in evidence.

No transcript was provided but all timely-filed proposed findings of fact have been considered and ruled upon in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner is an adult black female. At all times material, she was employed by Respondent, School Board of Nassau County, as a Guidance Counselor at Fernandina Beach High School.

2. Petitioner was initially employed by the Respondent in 1959 as a teacher of physical education, but she has been a guidance counselor in her present location since the 1972 school term. Her total tenure with the School Board is approximately 29 years. She is certified in Administration and Supervisory Guidance, Physical Education, Health Education, and Driver Education.

   
   

3. On June 28, 1989, the Respondent posted/published an advertisement for the newly created position of "Assistant Principal-Student Services" (AP-Student Services) at Fernandina Beach High School.

   
   

4. The new position had come about through a study commission. The membership of the commission included Fernandina Beach High School Principal William R. Fryar. The commission had been appointed by Respondent's Superintendent Craig Marsh. Over the course of a year, the commission had developed the criteria and threshold qualifications for the new position along with other proposed staffing changes.

   
   

5. The method by which a person would be hired for any such position with Respondent would include meeting the threshold qualifications, passing successfully through an interview panel, interviewing with Principal Fryar, being recommended by Principal Fryar to Superintendent Marsh, and being recommended by Superintendent Marsh to the School Board. The School Board would do the ultimate hiring.

   
   

6. The threshold qualifications for the position vacancy, as stated in Respondent's June 28, 1989 announcement included the following: a) three years counselling experience preferred at 9-12 level; b) hold or be eligible for Level I certificate; c) hold or be eligible for Florida Counselor certification; and d) experience in managing student data entry, Florida experience preferred.

   
   

7. On July 24, 1989, Petitioner applied for the position vacancy. She was the only one of Respondent's employees who met the foregoing qualifications. Only one other person, a white male, submitted an application in response to the June 28, 1989 position vacancy announcement. The white male was from out of state but eligible for in-state certification.

   
   

8. Both Petitioner and the sole other applicant met the published/posted threshold qualifications.

   
   

9. Petitioner and the sole other applicant were individually interviewed by a three person interview panel made up of three state certified interviewers. Two interviewers were white females and one interviewer was a black male. All the interviewers were employed by the Respondent.

   
   

10. The white male applicant received a slightly higher interview score than did Petitioner, but neither scored outside the average range. The interview scores were not passed on to Dr. Fryar, and the committee did not relay any recommendation to hire either applicant.

    
    

11. Dr. Fryar did not interview either applicant because there were only two applicants and because neither applicant had been recommended by the interview panel. Consequently, neither Petitioner (a black female) nor the white male was selected to fill the vacancy. The Respondent had previously and consistently hired only from a field of three or more applicants. Page 3,

    Section II. C. 12. of the School Board of Nassau County Human Resource Management Manual (Adopted 12/11/86; Revised 6/22/89) provides, "The selection system includes the recommendation of three to five candidates to the superintendent." Superintendent Marsh's personal preference also was to not hire for any position unless there was a field of at least three applicants who had successfully passed the interview panel stage.

    
    

12. On August 3, 1989, the position vacancy remained open and the Respondent published a readvertisement for the position. The threshold qualifications and the duties projected for this position remained identical to those published in the June 28, 1989 announcement.

    
    

13. Respondent received only one application in response to the August 3, 1989 advertisement. That applicant subsequently withdrew. When he was not hired, the white male applicant had asked not to be notified of future advertisements. Petitioner did not apply in response to the August 3, 1989 readvertisement although she was still interested in the position, because she had not received the second advertisement.

    
    

14. Petitioner discovered she had not received the second advertisement and was upset about it because Respondent had notified her that her first application would be kept on file for a year.

    
    

15. After the second advertisement netted no applicants, the same consideration of not hiring from a field of applicants of less than three still obtained. Presumably, that consideration would have prevailed even if Petitioner had re-applied in response to the second advertisement.

    
    

16. Originally, the belief had been that the AP-Student Services should be required to hold a counselling certificate because he or she would oversee three counsellors in addition to being required to devise, upgrade, and maintain student data bases on a computer. However, because Dr. Fryar and Superintendent Marsh and their advisers believed there was a greater need to develop a data base on the students than to have yet another counselor, Dr. Fryar and Superintendent Marsh incorporated the duties of the Fernandina Beach High School's data systems manager into the threshold qualifications for AP-Student Services. Also, in order to widen the potential field of applicants, they revised the requirement of counselor certification out of the threshold qualifications. Neither revision was done by running the idea through a committee again.

    
    

17. On October 16, 1989, the Respondent advertised the AP-Student Services position for a third time. In an effort to get more and better applicants, this third advertisement was circulated differently than the two prior advertisements. Respondent devised a new distribution system for its third advertisement. Under the new system, the specific schools received the posting directly rather than having it funneled to them through the district.

    
    

18. For the reasons indicated above, the threshold qualifications for the position as advertised the third time were different from those stated in the June 28, 1989 and August 3, 1989 postings in the following particulars: a) the requirement of guidance certification was eliminated; b) "three years counseling experience preferred at 9-12 level" was amended to read "three years counselling and/or other student services experience preferred at 9-12 level"; c) the requirement of "hold or be eligible for Florida Counselor certification" was deleted in its entirety; and d) the requirement of "experience in managing

    student data entry Florida experience preferred" was amended to read, "experience with computerized data systems: Florida experience preferred."

    
    

19. In response to the October 16, 1989 vacancy posting, the Respondent received approximately 10 applications. Eight of the ten applicants were interviewed.

    
    

20. Petitioner timely submitted her application in response to the October 16, 1989 vacancy posting. Petitioner met the changed threshold qualifications and was interviewed.

    
    

21. On November 1, 1989, interviews were conducted with eight applicants, including Petitioner, all of whom met the threshold qualifications. The interviewees consisted of five white males, one white female, one black male, and Petitioner, a black female. The interviewers were all certified interviewers, and this time the interviewers were selected from outside the school district, so they were not Respondent's employees. The interviewer pool was racially mixed. Three interviewers interviewed each applicant. Not all interviewees were interviewed by the same interviewers. Petitioner was interviewed by Cathy Merritt, Bob Kuhn, and Doris Thornton. Ms. Thornton is black. At the conclusion of the interviews, the interviewers, through data integration, by consensus and not by averages, awarded a consensus score to each applicant in each of fourteen categories. The three applicants with the highest scores consisted of one black male and two white males. Petitioner's scores were lower than those of the top three applicants and in the average range.

    
    

22. Principal Fryar interviewed the three highest scoring applicants without benefit of knowing their scores. However, the applicant ultimately appointed to the position did, indeed, have the highest scores among all the applicants. His scores were all above average.

    
    

23. The procedure used to fill the new position is called "target selection," and is enumerated in the School Board's Human Resource Management Plan, which plan is mandated pursuant to Section 231.087, F.S. and approved by the Florida Council on Educational Management.

    
    

24. Petitioner was not selected for the position of AP-Student Services. She was notified on November 10, 1989 of the selection of one of the three finalists, a white male, Richard Galloni. Prior to his promotion, Mr. Galloni was chairman of Fernandina Beach High School's mathematics department and served as the school's data systems manager.

    
    

25. On December 28, 1989, Petitioner timely filed a charge of racial discrimination with the Florida Commission on Human Relations pursuant to Section 760.10, F.S. alleging that she had been discriminatorily denied promotion to the position of AP-Student Services.

    
    

26. All of the administrators of Fernandina Beach High School are white. Approximately, 8% of the teaching faculty is black. Twenty-five per cent of the student body is black. Greater percentages of blacks in each category exist in other schools in the County.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

28. The United States Supreme Court set forth the procedure essential for establishing claims of racial discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973), which was then revisited in detail in Texas Department of Community Affairs v. Burdine, 450

    U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee.

    The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, the employer is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies its burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was a pretext for intentional discrimination. The employee may 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. If such proof is adequately presented, the employee satisfies his or her ultimate burden of demonstrating by a preponderance of the evidence that he or she has been the victim of intentional discrimination. Id. at 252-56, 101 S.Ct. at 1093-95, 67 L.Ed.2d at 215-17. As applied to a claim alleging discrimination resulting from an employer's decision not to promote, the prima facie case an employee is required to establish is

    
    

    that [he or] she belongs to a protected group, that [he or] she was qualified for and applied for a promotion, that [he or] she was considered for and denied the promotion, and

    that other employees of similar qualifications who were not members of the protected group

    were indeed promoted at the time the plaintiff's request for promotion was denied.

    
    

    Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir 4. 1981) (modifying formula approved in McDonnell Douglas Corp. v. Green, supra. for cases involving discriminatory refusal to hire).

    
    

29. Petitioner Myers has established a prima facie case of discrimination, but has not overcome the non-discriminatory reasons articulated by the Respondent School Board.

    
    

30. Petitioner suggested, obliquely at least, that because she was the only one of Respondent's employees who met the initial threshold qualifications, she should have been hired after either of the first two advertisements. She also suggested, again obliquely, that the threshold qualifications were eventually relaxed on counselling and guidance qualifications to eliminate her as a candidate and were specifically molded to favor Mr. Galloni, who was already the Fernandina Beach High School data systems manager.

    
    

31. Petitioner's first proposition clearly is not supported by the evidence. Respondent's articulated reasons for not selecting Petitioner in response to the June 28, 1989 advertisement were that it wanted a broader base of applicants (at least the required three) and that the lack of any interview

    panel recommendation to hire meant the interview ratings score for Petitioner and the only other applicant, a white male, were below Respondent's usual standard. The situation had not changed after the August 3, 1989 advertisement except that Petitioner constituted a field of one who still did not meet the Respondent's standards. Respondent's position is credible and reasonable and has not been refuted.

    
    

32. Petitioner's second proposition is not clearly substantiated. It might have been better for the Respondent to return the problem of the narrow qualifications to its study commission, but there was no requirement that it do so. The Superintendent and Principal were clearly qualified to make the decision to amend the position qualifications to accommodate perceived needs. Once those needs were clearly perceived and committed to the third advertisement, Petitioner was still considered qualified at the threshold level and was impartially interviewed with all other candidates. It is very probable that Mr. Galloni's current computer duties made him more qualified than many other applicants once the concept for the vacant promotional position changed from counselling to data processing, but the interviewers and the process were impartial in the selection of the finalists, of whom Mr. Galloni was only one of three. Petitioner, a black, was admittedly not selected as a finalist by her racially mixed interview panel, but one of the three finalists was also black. Assuming arguendo, but not ruling, that some unfair practice or favoritism took place in the Respondent's promotional screening, the fact that one finalist was black is strongly persuasive that the Respondent's promotional policy and practice did not discriminate on the basis of race.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing the Petition.

RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of April, 1992.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4323

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

1-9, 11-21, and 23: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material.

10: Rejected as not supported by the record. Covered in Findings of Fact 13- 15.

22: Covered as modified to more correctly reflect the record in Findings of Fact 10-12. See also Conclusions of Law.

Respondent's PFOF:

1-7, 10, 11-12, and 14: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material.

8, and 13: Rejected as subordinate and unnecessary.

9: Accepted in part and in part rejected as not supported, by the record as a whole, as covered in the recommended order.

COPIES FURNISHED:

Harry Lamb, Jr., Esquire Perry & Lamb, P.A.

605 E. Robinson Street Suite 630

Orlando, Florida 32801

Marshall E. Wood, Esquire

303 Centre Street Suite 200 Post Office P

Fernandina Beach, Florida 32034

Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, Florida 32303-4113

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, Florida 32303-4113

Mr. Craig Marsh, Superintendent Nassau County School Board

1201 Atlantic Avenue

Fernandina Beach, Florida 32034

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions to 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: 91-004323

Orders for Case No: 91-004323