STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALBERT HARRIS, )
)
Petitioner, )
)
v. ) CASE NO. 92-1698
)
BAY COUNTY SCHOOL BOARD, ) JACK SIMONSON and CAROL LOVE, )
)
Respondents. )
) CELESTINE CHERRY, )
)
Petitioner, )
)
v. ) CASE NO. 92-1699
)
BAY COUNTY SCHOOL BOARD, ) JACK SIMONSON and CAROL LOVE, )
)
Respondents. )
) GRACE D. BRYAN, )
)
Petitioner, )
)
v. ) CASE NO. 92-1700
)
BAY COUNTY SCHOOL BOARD, ) JACK SIMONSON and CAROL LOVE, )
)
Respondents. )
) IDA CONNER, )
)
Petitioner, )
)
v. ) CASE NO. 92-2304
)
BAY COUNTY SCHOOL BOARD, ) JACK SIMONSON and CAROL LOVE, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in these cases on May 2 and 3, 1993, in Panama City, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioners: Leslie Holland
Attorney at Law
924 North Gadsden Street Tallahassee, Florida 32303
For Respondent: Franklin Harrison
Attorney at Law
304 Magnolia Avenue
Panama City, Florida 32402 STATEMENT OF THE ISSUES
The ultimate issue is whether the Respondents engaged in an unlawful employment practice by discriminating against the Petitioners on account of race.
PRELIMINARY STATEMENT
The Petitioners presented the testimony of Eli Campbell, Michele Ward, Carol Love, Ida Jean Conner, Celestine Cherry, Kenneth W. Phillips, Albert D. Harris, Grace D. Bryan, Bronkelly Demetrius Porter, Latresha Mackey, Brenda J. Hardrick, Samantha Jones, Manuel Kerns, Stephanie Gary, and Jean R. Phillips. Petitioners' Exhibits 1-3, 5-7, 9, and 10 were admitted in evidence.
Petitioners recalled Conner as a rebuttal witness.
Respondents presented the testimony of Lynn L. Stryker, Jack William Simonson, William B. Harrison, Karla Jean Willis, Jerry Lassiter, Linwood Barnes and Carol Love. Respondents' Exhibits 3-11 were admitted in evidence.
The transcript of the proceedings was filed on March 22, 1993. The parties requested and were granted an extension of time for filing their proposed findings of fact and conclusions of law until April 30, 1993. They timely filed proposed recommended orders as agreed. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
FINDINGS OF FACT
Each of the Petitioners is a school teacher at Rosenwald Middle School in Bay County, Panama City, Florida.
Celestine Cherry has a total of twenty-four years of teaching experience, all of which have been in the Bay County school system. She has taught home economics and physical education at Rosenwald Middle School for the last nine of those years.
Ida Conner has had twenty
which have been in Bay County. She began at Rosenwald teaching language arts and U.S. history in 1988.
Albert Harris has had fourteen years of teaching experience, all but one of which have been in Bay County. He has a BS degree in biology and is certified to teach science to grades seven through twelve.
Grace Bryan has had twenty
time of the hearing, she had been teaching at Rosenwald for fifteen years. She is an ESE teacher who is certified in the area of mental retardtion.
Carol Love became the assistant principal at Rosenwald in 1989 and was promoted to principal of Rosenwald in 1990. During the 1989-90 school year, Love performed teacher evaluations of the four Petitioners and rated each as unsatisfactory. It is these unsatisfactory evaluations which the Petitioners allege were the result of racial discrimination. Love taught for eighteen years at all levels and has been an administrator since 1986. She holds a Masters Degree in Education and had served as assistant principal for three years at Rutherford High School prior to her assignment to Rosenwald.
Jack Simonson was the superintendent of the Bay County schools from November 22, 1988, to November 16, 1992.
The Bay County School Board is the entity ultimately responsible for the operation of the schools of that county and is the Petitioners' employer.
One of Simonson's major campaign promises in seeking election as superintendent was to rigorously evaluate school administrators and employees. After his election, he regularly reminded the administrators of his desire that they conduct accurate evaluations. During his term as superintendent, Simonson strictly pursued the evaluation of district administrators. This policy resulted in the non-renewal of four white administrators, who either returned to the classroom or left the school system. He reduced one black administrator from principal to assistant principal. No black administrators were returned to the classroom or non-renewed.
Except for his demand for rigorous evaluations, Simonson took no part in the 1989-90 annual evaluations of the Petitioners.
When Carol Love began as assistant principal at Rosenwald in 1989, she worked for Eli Campbell, the principal. The other assistant principal was Lynn Stryker. Campbell is black and Stryker is white.
The Bay County School District uses the Florida Performance Measurement System (FPMS), which is a Florida Department of Education approved method for teacher evaluation. Love is a certified FPMS evaluator. The FPMS identifies effective and ineffective teacher behaviors. The evaluator's responsibility is to observe whether or not the teacher exhibits these behaviors during the periods of observation. The actual observations are noted on a summative form and are then transferred to the evaluation form. A tallying of the observations determines whether or not the teacher receives a satisfactory or unsatisfactory evaluation. The FPMS evaluation instrument predetermines which behaviors are effective and which are ineffective. These decisions are not made by the evaluator. The evaluator merely notes the behaviors observed.
Bay County teachers are all given in
includes copies of the evaluation instruments. The teachers are therefore aware, at the beginning of each school year, of the behavior which will be observed, and whether or not they are effective or ineffective under the FPMS.
For the 1989-90 evaluations, Campbell assigned one teachers to himself and one
previously taught with Karl Elliott, who is white, and Conner, who is black, she felt uncomfortable in evaluating these two teachers, and therefore requested Love do their annual evaluations. In addition, the two assistant principals
thought it best to keep departments together for the purpose of evaluation. It was agreed that Bryan and Laticia Washington, both of whom are black, would be assigned to Love, so that she would then be evaluating the entire EMH Department. All of these proposed changes in evaluations were discussed with Mr. Campbell at the administrators' regular Monday morning meeting and he gave his approval for these changes to be made.
In addition to the unsatisfactory evaluations of the Petitioners, Love also gave unsatisfactory evaluations in 1989-90 to Karl Elliott, Fran Walters, Wayne Davidson, and Charles Clark, all of whom are white. Two black teachers, Ms. Washington and Ms. Smith, received satisfactory evaluations from Love for that same evaluation period.
Campbell signed all of the evaluations and improvement notices given to the Petitioners in their annual evaluation in 1989-90. It was not until some time later that he raised some procedural objections to the improvement notices. None of these procedural objections are at issue in this matter.
For the 1989-90 school year, Simonson assigned Assistant Superintendent Glenda Hamby to evaluate Campbell. Prior to the beginning of the 1989-90 school year, Simonson determined that teacher evaluations at Rosenwald had not been appropriately conducted for the 1988-89 school year. By a memo dated August 1, 1989, Simonson gave specific directions to Campbell regarding Campbell's performance and the expectations regarding Campbell's administration of Rosenwald for the 1989-90 school year. Campbell clearly was on notice that big improvements were expected or else Campbell would be removed as principal of Rosenwald.
Rather than making a genuine effort to improve his administration at Rosenwald, Campbell instead embarked on a campaign of public challenges to Simonson, agitated the faculty and the black community to help him keep his position as principal, failed to acknowledge deficiencies in his performance, and publicly alleged that his problems were the result of racism.
Campbell was unhappy that Love had been assigned to Rosenwald and his relationship with her was markedly uncooperative. Campbell publicly aired his allegations of racism, going so far as to discuss them on television.
Hamby's unsatisfactory evaluation of Campbell was the final factor that resulted in his removal as principal at Rosenwald and his reassignment within the Bay County School District.
Love's evaluations of the Petitioners for the 1989-90 school year were consistent with the requirements of the FPMS system. She conducted several classroom observations of each Petitioner and based the teacher assessments, professional development plans and improvement notices on the observations.
Cherry received an overall assessment of unsatisfactory based on deficiencies in the areas of Instructional Organization and Development and Communication: Verbal and Nonverbal. A professional development plan was given which further identified the specific goals and strategies for correcting the deficiencies. Finally, improvement notices were given that specifically defined the unsatisfactory performance, the improvement desired and the assistance to be provided to the teacher for achieving that improvement.
Cherry was unsatisfactory for her use of incorrect English in the classroom, inadequate verbal and nonverbal communication skills, inadequate
instructional organization and development, and inappropriate and/or lack of supervision in class. She refused to accept the validity of the criticisms and failed to do any of the suggested strategies for improvement. Instead, Cherry took the position that the evaluations were incorrect and were based on racism.
In May, 1990, Love went to Cherry's class in response to a complaint from a teacher and a student. She discovered that the student's were engaged in writing and turning in to Cherry letters directed to Love concerning Cherry's unsatisfactory evaluation and her quality of teaching. Love sent Cherry from the room and conducted an investigation of the incident. As a result, Cherry received two letters of reprimand for these actions in her classroom. While Cherry did grieve these two letters of reprimand, the grievances were denied after binding arbitration.
Cherry has received unsatisfactory evaluations from Love in each school year since the 1989-90 school year. Cherry continues to believe that the evaluations and reprimands are the result of racism. To support this belief, Cherry also cites to an incident during a school picture when Love told her to sit on the ground, a time when Love told Cherry not to read her newspaper during faculty meetings, and an occasion when Love required Cherry to get to her class room in a timely fashion. In fact, the great weight of evidence is contrary to Cherry's allegations of racism and no racial content in these incidents has been shown.
Cherry maintains that the deficiencies noted in the evaulations are incorrect and are pretexts for discrimination. In reviewing the actual Summative Observation Instruments upon which Cherry's evaluations were based and in comparing those observations with Cherry's demeanor as a witness at hearing, it is found that some of the unsatisfactory observations regarding communication, verbal and nonverbal, were evident in this proceeding. Specifically, Cherry did not use grammatically correct English, was at times vague and rambling, maintained a hostile posture, and was verbally hostile and caustic. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination.
Conner received an overall evaluation of unsatisfactory with areas of deficiency in Instruction Organization and Development, Knowledge/Presentation of Subject Matter, and Communication: Verbal and Nonverbal. Conner also received a Professional Development Plan with goals and strategies for remediating the deficiencies and three improvement notices which set forth a description of the unsatisfactory performance, improvement desired, and assistance to be provided to assist Conner in improving the unsatisfactory performance areas.
Conner was unsatisfactory for verbal and nonverbal communication; for failure to begin instruction promptly, handle materials efficiently, maintain academic focus, conduct beginning and ending review, question effectively, recognize and amplify responses, and give appropriate praise; and for her inability to use English correctly. Conner also refused to accept the validity of the criticisms and failed to carry out any of the strategies for improvement. Conner took the position that the evaluations were incorrect and were based on racism.
Conner has received unsatisfactory evaluations from Love in each school year since 1989-90. The inadequacies remained the same. Because of her failure to remediate these deficiencies, Conner was removed from teaching
language arts and history and was reassigned to teach alternative education for the 1990-91 school year.
Conner suggests that her charge of racism is supported by several incidents. Conner asserts that Love took money from her alternative education budget to buy computers to go in other classrooms. This is simply not so. Conner also believes that Love's racist motivation resulted in omission of an award for Conner in September 1990, in interception of a note that Conner sent by way of a student, in the failure to invite Conner to a school literary luncheon in January, 1993, and in the failure to invite Conner to an in program on Macintosh computers in December, 1992. The evidence is to the contrary in each of these incidents. No evidence of racial content or motivation has been presented in any of these incidents.
Conner also maintains that the deficiencies noted in the evaluations are incorrect and are pretexts for discrimination. In reviewing the actual Summative Observation Instruments upon which Conner's evaluations were based and in comparing those observations with Conner's demeanor as a witness at hearing, it is found that some of the unsatisfactory behaviors regarding communication, verbal and nonverbal, were evident in this proceeding. Specifically, Conner did not use grammatically correct English, mispronounced basic words, and was at times loud, hostile, and sarcastic. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination.
Harris received an overall evaluation of unsatisfactory for the 1989-
90 school year. Deficiencies were noted in the areas of Instructional Organization and Development, Communication: Verbal and Nonverbal, and Personal Qualities. As with the other Petitioners, a professional development plan and improvement notices were provided.
Harris was unsatisfactory for his inability to question effectively, to recognize and amplify responses, to give appropriate praise and to express enthusiasm and interest verbally and through body behavior. He was also frequently tardy to his classes thus leaving students unsupervised and he needed improvement in classroom behavior management.
As did Cherry and Conner, Harris refused to accept the validity of the criticisms and failed to do any of the suggested strategies for improvement. Harris also believed that the unsatisfactory evaluation was the product of racism.
Harris complained that he could not effectively teach science from a regular classroom as he had done since 1987. At the beginning of the 1990-91 school year, Love assigned Harris to a science room, which gave him better access to the science closet for equipment and a demonstration table, running water, and an outside access door. Harris' teaching did not improve and he has been evaluated as unsatisfactory in every subsequent year. He was finally reassigned to teach alternative education.
To support his claim that these unsatisfactory evaluations are the result of racial discrimination, Harris cites to two incidents in which he thought Love was rude and abrasive. One incident occurred when Love chided Harris in the hallway about being late for his class; the other occurred in the gymnasium just before an assembly when Love told Harris to "move it" and to "get those kids in line." No evidence was offered to show a racially discriminatory motivation for these incidents.
Harris also maintains that the deficiencies noted in the evaluations are incorrect and are pretexts for discrimination. In examining the Summative Observation Instruments and in comparing those observations with Harris' demeanor as a witness at hearing, it is found the some of those same unsatisfactory behaviors were evident in the hearing. Specifically, Harris spoke in a low monotone, showing no enthusiasm or interest. He was lethargic, made no eye contact, and had a flat affect. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination.
Bryan received an overall unsatisfactory evaluation for the 1989-90 school year, with deficiencies noted in Instructional Organization and Development, Communication: Verbal and Nonverbal, and Management of Student Conduct. Bryan was given a Professional Development Plan and improvement notices. She also believes that the unsatisfactory evaluation was the result of a racial motivation, but she, unlike the other Petitioners, took advantage to the suggested strategies for improvement by reviewing tapes and research, exploring new methods, practicing those improved behaviors, and attending a class.
Bryan's efforts to improve were successful and she has not received another unsatisfactory evaluation from Love. Bryan tendered no competent evidence to show a racially discriminatory motivation for the unsatisfactory rating given in 1989-90.
The improvement notices given to the Petitioners required "Improvement will be demonstrated by October 1, 90." The stated consequences if improvements were not made was "Progressive discipline which could lead to dismissal." No disciplinary actions have been taken against the Petitioners at any time since the initial evaluations.
Love has consistently reproved both black and white teachers for being late to class. In dealing with the faculty, staff and students of Rosenwald, Love is direct, firm, aggressive, and at times, abrasive, regardless of the race of the party with whom she is dealing. It is not unusual for her to call out instructions to teachers or students in the common areas of the campus.
The assistant principals under Love are Stryker and Linwood Barnes. Barnes is black. Both have observed Love's interactions with students and faculty on a daily basis. Neither have ever observed Love to treat black students or teachers in a manner different than that with which she treats white students and faculty.
Petitioners assert that Love acknowledged her prejudice to Bronkelly Porter, a black student at Rosenwald. In fact, the incident cited occurred after Campbell had rallied students, teachers and the black community in an effort to retain his job. Because of Campbell's accusations against Love, she was regularly harassed by students. The event in question occurred in the cafeteria when she was challenged by Porter, a student with whom she had had problems in the past. Bronkelly yelled out to Love a question about whether she was prejudiced. Love spontaneously and sarcastically said "Yeah, right,
Bronkelly, I am." While it is recognized that Love, in an off
used a poor choice of words, this statement is not taken to be probative evidence of racial prejudice on the part of Love.
Love also made certain statements while counseling Michelle Ward regarding her discipline problems. Specifically, Love told Ward that "if she'd hang around with her own kind then she would not get in so much trouble." The statement was not made in reference to the race of any individual, but instead was intended to get Ward to reconsider the group she was running with in an attempt to decrease Ward's discipline problems.
The greater weight of the probative and material evidence establishes that Love at no time took any discriminatory action against the Petitioners on account of their race. Further, there is even less evidence of racial discrimination on the part of Simonson or the Bay County School Board. Petitioners have simply failed to prove their case.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The issue in this case concerns whether the evaluations of the Petitioners were in violation of Section 760.10, Florida Statutes. Section 760.10(1)(a), Florida Statutes (1989) states, in pertinent part:
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race . . . .
The Petitioners contend they were given unsatisfactory evaluations because of their race in violation of Section 760.10(1)(a).
Actions brought pursuant to Section 760.10 are similar to actions brought pursuant to Title VII of the Civil Rights Act. In Florida, when a state law is patterned after a federal law on the same subject, the Florida law will be afforded the same construction as in federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991). Federal law governing the burden of proof in Title VII actions has therefore been used to determine the burden of proof in proceedings brought pursuant to Chapter 760. See, e.g., O'Loughlin, supra; Florida Department of Corrections v. Chandler, 582 So.2d 1883 (Fla. 1st DCA 1991); School Board of Leon County v. Weaver, 556 So.2d
443 (Fla. 1st DCA 1990); National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988).
There are two basic methods by which a petitioner may establish a prima facie case of discrimination pursuant to Section 760.10. One is by proving direct evidence of discrimination. If Petitioners can show by direct evidence that race motivated the employment decision in question, then the burden of proof shifts to Respondents to prove by a preponderance of the evidence that they would have made the same decision even had they not allowed race to play a part in the decision. Price
109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); EEOC v. Beverage Canners, Inc., 897 F.2d 1067 (11th Cir. 1990); Wall v. Trust Co. of Georgia, 946 F.2d 805 (11th Cir.
1991); Wilson v. City of Aliceville, 779 F.2d 631 (11th Cir. 1986); Hill v. MARTA, 841 F.2d 1533 (11th Cir. 1988). Direct evidence of discrimination consists of evidence of actions or remarks of an employer which reflect a discriminatory attitude. Direct evidence of discrimination consists of evidence of actions or remarks of an employer which reflect a discriminatory attitude.
See, Hill, 841 F.2d at 1539, which correlates to the discrimination of which the employee complains. Caban-Wheeler v. Elsen, 904 F.2d 1549 (11th Cir. 1990).
Direct evidence does not exist in this case. Direct evidence of discrimination is evidence which proves the existence of facts at issue without inference or presumption. Al Hashimi v. Scott, 756 F.Supp. 1567 (S.D. La. 1991); see also Thompkins v. Morris Brown College, 752 F.2d 558, 563 (11th Cir. 1985). The comments Petitioners contend are direct evidence do not show contempt or hostility towards blacks as a race or toward the Petitioners in particular. These comments, therefore, do not, without inference or assumption, indicate a discriminatory attitude.
Mrs. Love's statements are certainly distinguishable from the egregious and unambiguous racial slurs directed at an employee or an employment decision which have been found to constitute direct evidence. See e.g. EEOC v. Beverage Canners, Inc., supra, (Supervisory individuals referred to blacks as "swahilis," "ignorant niggers," stated that "blacks were meant to be slaves," were of lower intelligence, and that "those niggers" would not get anywhere in the company); Wilson v. City of Aliceville, supra, (employer's statement that he was not going to be made to hire a "negro" constituted direct evidence); EEOC v. Alton Packaging Co., 901 F.2d 920, 924 (11th Cir. 1990) (comment by hiring official that were it his company, he would not hire blacks and that "you people" (referring to blacks) "can't do a thing right," constituted direct evidence).
In contrast, where comments by a hiring official do not unambiguously reflect racial animus, direct evidence has not been found to exist. Woody v. St. Clair County Commission, 885 F.2d 1557 (11th Cir. 1989)(comment by hiring official that he "had nothing against blacks, and had in fact hired first black at courthouse" not intentionally discriminatory but intended to put applicant at ease); Young v. General Foods, Inc., 840 F.2d 825 (11th Cir. 1988) cert. den., 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989) (age discrimination case - comments that plaintiff lacked "wherewithal" to perform job, moved in slow motion and was not aggressive or proactive not directly probative of an intent to discriminate); Dunning v. National Industries, Inc., 720 F.Supp. 924 (M.D. Ala. 1989) (comment that employee's pregnancy was not employer's fault or problem might be characterized as callous or insensitive, but did not show pregnant employee was treated differently from other employees). The comments in these examples do not of themselves show discriminatory intent; such intent must be inferred. Similarly, for Love's comments to reflect discriminatory intent, an inference is required because they do not unambiguously express racial animus. Therefore they are not direct evidence of discrimination.
Even assuming Petitioners established a prima facie case, Respondents articulated a legitimate nondiscriminatory reason for Petitioners' evaluations which Petitioners did not prove to be pretextual.
Respondents rebutted any inference of discrimination presented by a prima facie case by articulating a legitimate nondiscriminatory reason for the unsatisfactory evaluations. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). This burden consists of a burden of production of evidence to create factual dispute and is
not a burden of proof. Burdine, supra. Busby v. City of Orlando, 931 F.2d 764, 777 (11th Cir. 1991).
Since Petitioners have not presented direct evidence of discrimination in this case, the standard of proof which applies to the case is governed by McDonnell-Douglas v. Green, 411 U.S. 792, 92 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, supra. Under the McDonnell-Douglas test, the ultimate burden of proof in regard to the issue of discrimination remains with the Petitioners at all times. Burdine, 450 U.S. at 253; Walker v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982).
Once Respondents articulated their legitimate, nondiscriminatory reasons, Petitioners must prove by a preponderance of the evidence that those reasons were pretextual. Burdine, supra. The Petitioners in this case have not met their burden of showing pretext.
The fact that Petitioners received satisfactory evaluations under other administrations is not probative of Respondents' intent in evaluating Petitioners. Comparisons of evaluations over a length of time simply are not probative of discriminatory intent, especially where the structure of the department in question changed dramatically. The lower evaluations of Petitioners in 1989-90 are a reflection of Superintendent Simonson's implementation of more rigorous evaluation techniques than had been used in previous years which were not applied in a discriminatory fashion. See Villanueva v. Wellesley College, 930 F.2d 124 (1st Cir. 1991) cert. den. U.S.
, 112 S.Ct. 181, 116 L.Ed.2d 143 (1991).
In McCarthney v. Griffin Spaulding County Board of Education, 791 F.2d 1549 (11th Cir. 1986), the court stated that if the defendants could have successfully defended against showing that they acted with discriminatory motive, they cannot be held liable on a claim predicated on McDonnell Respondents articulated a legitimate, nondiscriminatory reason for the employment decision in question. The fact is that Petitioners would have received unsatisfactory evaluations even if they were white. The evlauations were not pretexts for discrimination.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final
Order denying and dismissing the claims for relief filed by Albert Harris, Celestine Cherry, Grace D. Bryan and Ida Conner.
DONE and ENTERED this 1st day of June, 1993, in Tallahassee, Florida.
DIANE K. KIESLING
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 1st day of June, 1993.
APPENDIX TO THE RECOMMENDED ORDER
IN CASE NOS. 92-1698, 92-1699, 92-1700, and 92-2304
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioners
Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-6(1-6); 7(6); 9(7); 15(18); and 17(13).
Proposed findings of fact 8, 10, 16, 21-23, 26-32, and 37-39 are subordinate to the facts actually found in this Recommended Order.
Proposed findings of fact 11-14, 20, 25, and 33 are irrelevant.
Proposed findings of fact 18, 19, 24, and 34-36 are unsupported by the credible, competent and substantial evidence.
Specific Rulings on Proposed Findings of Fact Submitted by Respondents
Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(10); 3(6&11); 4(12); 5(13); 6(15); 7(23); 14(39); 15(35); 16(34); 18(42); 20(39); 22(40); and 24 & 25(14).
Proposed findings of fact 8-13, 17, 21, 23, 28, and 29 are subordinate to the facts actually found in this Recommended Order.
Proposed findings of fact 19, 26, and 27 are irrelevant.
Proposed finding of fact 30 is unnecessary.
COPIES FURNISHED:
Leslie Holland Attorney at Law
924 North Gadsden Street Tallahassee, Florida 32303
Franklin Harrison Attorney at Law
304 Magnolia Avenue
Panama City, Florida 32402
Sharon Moultry, Clerk Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, FL 32303-4149
Dana Baird General Counsel
Human Relations Commission
325 John Knox Road Building F, Suite 240
Tallahassee, FL 32303-4149
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.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS
ALBERT HARRIS,
Petitioners,
v. EEOC Case No. 15D901029
FCHR Case No. 90-7104 SCHOOL BOARD OF BAY COUNTY, DOAH Case No. 92-1698 FLORIDA; JACK SIMONSON, and FCHR Order No. 95-0045 CAROL LOVE,
Respondents.
/ CELESTINE CHERRY,
Petitioner,
v. EEOC CASE No. 15D901027
FCHR Case No. 90-7112 SCHOOL BOARD OF BAY COUNTY, DOAH Case No. 92-1699 FLORIDA; JACK SIMONSON, and FCHR Order No. 95-0046 CAROL LOVE,
Respondents.
/ GRACE D. BRYAN,
Petitioner,
v. EEOC Case No. 15D901026
FCHR Case No. 90-7114 SCHOOL BOARD OF BAY COUNTY, DOAH Case No. 92-1700 FLORIDA; JACK SIMONSON, and FCHR Order No. 95-0047 CAROL LOVE,
Respondents.
/ IDA J. CONNER,
Petitioner,
EEOC Case No. 15D901025
FCHR Case No. 90-7113 SCHOOL BOARD OF BAY COUNTY, DOAH Case No. 92-2304 FLORIDA; JACK SIMONSON, and FCHR Order No. 95-0048 CAROL LOVE,
Respondents.
/
ORDER FINDING THAT UNLAWFUL EMPLOYMENT PRACTICES OCCURRED AND AWARDING AFFIRMATIVE RELIEF
Panel of Commissioners
The following three Commissioners participated in the disposition of this matter:
Commissioner Keith James, Panel Chairperson;
Commissioner Whitfield Jenkins; and Commissioner Laura Santos.
Appearances
For Petitioners Albert Harris, Celestine Cherry, Grace D. Bryan, and Ida J. Conner:
Virgil H. Duffel Qualified Representative 700 West Fourth Street
Lynn Haven, Florida 32444
For Respondents School Board of Bay County, Florida; Jack Simonson, and Carol Love:
Franklin Harrison, Esquire Post Office Drawer 1579
304 Magnolia Avenue
Panama City, Florida 32402
Preliminary Matters
Albert Harris (Harris), Celestine Cherry (Cherry), Grace D. Bryan (Bryan), and Ida J. Conner (Conner), Petitioners herein, filed separate complaints of
discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01 - 760.10, Florida Statutes (1991), alleging that the School Board of Bay County, Florida; Jack Simonson, and Carol Love, Respondents herein, unlawfully discriminated against themon the basis of race (black).
In accordance with the Commissions rules, the allegations of discrimination set forth in the complaints were investigated. Reports were submitted to the Executive Director who issued his determinations, finding (for each complaint) no reasonable cause to believe that an unlawful employment practice occurred.
Petitioners filed Petitions for Relief from Unlawful Employment Practices and the cases were transmitted to the Division of Administrative Hearings (DOAH) for the conduct of formal hearings. The cases were consolidated by the DOAH hearing officer.
The issues before the hearing officer concerned the job performance evaluations for the Petitioners, who are public school teachers. Petitioners contend that because of racial prejudice, they were rated unsatisfactory on their annual job performance evaluations.
A consolidated formal administrative hearing was held in Panama City, Florida. The DOAH hearing officer, Diane K. Kiesling, has entered a consolidated Recommended Order which finds that, for each Petitioner, no unlawful discrimination occurred. Ms. Kiesling recommends that each of the Petitions for Relief be denied.
Pursuant to notice, public deliberations were held in Tallahassee, Florida before the above named panel of Commissioners, at which deliberations the panel determined the actions to be taken upon the Petitions for Relief.
Rulings on the Exceptions
Petitioners filed exceptions. - Their fifteen (15) numbered exceptions relate to the ultimate inquiry of discrimination vel non. Based upon the rulings set forth in our Conclusions of Law, infra, the 15 exceptions have-merit and accordingly are adopted.
Findings of Fact
We reject the ultimate finding that, missing from the record, is competent substantial evidence to reveal the presence of an active, unlawful discriminatory motivation. The competent, substantial evidence in the record establishes that when the Petitioners were given unsatisfactory evaluations for the school year 1989 - 1990, the Respondent's motivation was a matter of racial prejudice against them because they are black, which means that unlawful employment practices did occur.
Conclusions of Law
We do not accept the Hearing Officer's conclusions of law. Instead, we point to the compilation of competent evidence gathered during the formal proceeding, noted by the hearing officer, but placed to the side, even though it is substantial and it points in the direction of unlawful discriminatory employment practices, to wit:
Each of the four Petitioners is a long time school teacher at Rosenwald Middle School in Bay County, Panama City, Florida. Each has earned prominent academic degree(s).
Mr. Harris has a B.S. degree in biology, grades seven through twelve. He has fourteen years of teaching experience. All but one have been in the Bay County school system. Ms. Cherry has a M.S. degree in vocational education.
She has twenty four years of teaching experience, all of which have been done in the Bay County school system. She taught at Rosenwald Middle School for nine years. Ms. Bryan is a state certified ESE teacher. She is certified in the field of mental retardation. She has twenty six years of teaching experience.
She taught at Rosenwald for fifteen years. Finally, Ms. Conner has more than twenty years of teaching experience. She taught in the Bay County school system for eleven years. For four years, she taught at Rosenwald.
Acting by way of Ms. Love (white) and Mr. Simonson (white), Respondent School Board rated each of the four Petitioners as unsatisfactory on the annual job performance evaluations. Ms. Love is the principal of Rosenwald Middle School and Mr. Simonson is the superintendent for the Bay County school system.
In 1989, Ms. Love began employment at Rosenwald as an assistant principal. At that time, the principal was Mr. Eli Campbell (black). In 1989, Mr. Simonson was the school superintendent. He had become superintendent just one year earlier in 1988.
During the 1989 - 1990 school year, under Mr. Simonson's stewardship, racial tensions developed at Rosenwald. Mr. Simonson publicly objected to a black heritage program at Rosenwald even though the program was approved by Principal Campbell. According to Mr. Simonson, a program for black heritage was an anti-white program. Mr. Simonson deemed such program to be racist. Mr.
Simonson did not attend the heritage program even though he was expressly invited.
There were other programs which celebrate other ethnic heritages. Mr. Simonson never objected to these programs. He did not view them as racist. Only black heritage was racist in Mr. Simonson's mind.
In this context, Ms. Love, as the assistant principal, conducted the annual job performance evaluations of the four Petitioners. For the first time in all their years of teaching, all four were rated unsatisfactory.
The Petitioners received their unsatisfactory evaluations in May 1990.
They were required to make improvements no later than October 1, 1990, or they would be subjected to discipline up to and including dismissal. Ms. Bryan and Ms. Conner were not scheduled to teach during the summer months. They only had part of May and September to make improvement. All but one of the special evaluations conducted by Ms. Love subsequent to May have been unsatisfactory.
On occasion, Ms. Love surreptitiously conducted lengthy interrogations of certain students at Rosenwald. Ms. Love asked questions about Ms. Cherry and Ms. Conner and she instructed the students not to let their parents know about the interrogations.
Ms. Love had an encounter with Bronkelly Porter (black), a male student at Rosenwald. He accused Ms. Love of singling him out for mistreatment because of his race. According to him, Ms. Love told him outright that she was a prejudiced person and she was prejudiced against blacks. During her testimony, Ms. Love admitted her encounter with student Porter and she admitted the truthfulness of his account of their oral statements to each other.
The foregoing factual occurrences are established by competent evidence in the record. These occurrences point to unlawful, race-based discrimination.
Awards of Affirmative Relief
We find that Respondents committed unlawful employment practices when they gave Petitioners unsatisfactory evaluations for the 1989 -1990 school year.
Respondents are hereby ORDERED:
to cease and desist from unlawfully discriminating against any employee or applicant for employment on the basis of race; and
to remove Petitioners' unsatisfactory evaluations from their personnel files and maintain such tainted evaluations in a separate file marked "invalid".
DONE this 31st day of July, 1995. FOR THE COMMISSION ON RELATIONS:
by: Commissioner Laura Santos; and Commissioner Whitfield Jenkins
Commissioner Keith James (dissenting):
I vote to adopt the Recommended Order in that there is competent substantial evidence in the record to support the DOAH hearing officer's ultimate finding of no discrimination.
Each party is advised of the right to petition the District Court of Appeal for judicial review of this Final Agency Order. Notice of Appeal must be filed within 30 days of the date that this order is filed with the clerk of the Commission. Section 120.68, Florida Statutes (1993), and Fla.R.App.P. 9.110(b).
FILED this 31st day of July in Tallahassee, Florida.
Sharon Moultry
Clerk of the Commission
ENDNOTE
1/ It has been stated that the ultimate inquiry of the presence of unlawful discrimination is an issue of fact; that the affirmative existence of discriminatory intent is itself a question of fact, dealing with the weight and credibility of the testimony presented; that, in general, DOAH'S positive findings of discrimination must be adopted by the Commission, and that DOAH's positive findings of discrimination may be rejected only where the record contains no competent substantial evidence to support DOAH's positive findings.
On the other hand, an ultimate finding indicating that there is "an absence of discrimination" is not entitled to such deference. To accord such deference to a no discrimination finding would mean essentially that before a DOAH finding
of no discrimination may be rejected, each and every item of the competent evidence must point in the direction of unlawful discrimination.
In other words, rejection would be allowable only where the entire body of competent evidence points only to discrimination. The policy/practice of grouping the competent evidence of discrimination, placing it to the side, and proceeding to reach an ultimate disposition of "no discrimination" ignores the Commission's responsibility to effectuate corrective action. We explicitly reject this stifling precept for our agency review. It would confound our statutory duty to effectuate the purposes and policies of the Florida Civil Rights Act of 1992, a duty which is placed exclusively upon the Commission. See Section 760.06(12), Florida Statutes (1993).
COPIES FURNISHED:
Mr. Virgil H. Duffel Qualified Representative 700 West Fourth Street Lynn Haven, Florida 32444
(Courtesy copies to)
Mr. Albert Harris, Jr. Ms. Celestine Cherry
Post Office Box 626 1036 East 7th Court
Lynn Haven, Florida 32444 Panama City, Florida 32401
Ms. Grace D. Bryan Ms. Ida J. Conner
144 Detroit Avenue 1407 Mississippi Avenue Panama City, Florida 32401 Lynn Haven, Florida 32444
Franklin R. Harrison, Esquire Post Office Drawer 1579
304 Magnolia Avenue
Panama City, Florida 32402
DOAH Dana Baird, FCHR General Counsel
| Issue Date | Proceedings |
|---|---|
| Jun. 06, 1996 | Order Finding That Unlawful Employment Practices Occurred And Awarding Affirmative Relief filed. |
| Aug. 02, 1995 | (Laura Santos) Order Finding that Unlawful Employment Practices Occurred and Awarding Affirmative Relief filed. |
| Jun. 01, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 5/2-3/93. |
| Apr. 30, 1993 | Petitioner's Proposed Recommended Order filed. |
| Apr. 30, 1993 | Respondent's Proposed Recommended Order filed. |
| Apr. 02, 1993 | Order sent out. (petitioner's motions are denied in every regard) |
| Mar. 22, 1993 | Response to Motion for Rehearing, For Sanctions and For Disqualification of Respondents' Counsel Due to Attorney Misconduct, or, in the Alternatively, Motion to Strike, For Sanctions and for Disqualification of Respondents' Counsel filed. |
| Mar. 22, 1993 | Transcript (Vols 1-3) w/Notice of Filing Transcript filed. |
| Mar. 10, 1993 | (Petitioners) Motion for Rehearing, for Sanctions and For Disqkualification of Respondent's Counsel Due to Attorney Misconduct, or, in the Alterntaive, Motion to Strike, for Sanctions and for Disqualification filed. |
| Mar. 03, 1993 | CASE STATUS: Hearing Held. |
| Nov. 13, 1992 | Ltr to Accurate Court Reporters from G.J. Green re: court report confirmation sent out. |
| Nov. 10, 1992 | Order Granting Continuance And Amended Notice sent out. (hearing rescheduled for March 2,3 and 4, 1993; 9:30am; Panama City) |
| Nov. 06, 1992 | (Petitioners) Motion for Continuance filed. |
| Sep. 25, 1992 | Order Of Continuance and Rescheduling Hearing sent out. (hearing rescheduled for November 19-20, 1992; 10:30am; Panama City) |
| Sep. 25, 1992 | (Respondent) Motion for Continuance filed. |
| Sep. 01, 1992 | Order Granting Continuance sent out. (hearing rescheduled for 11/4-5/92; 9:30am; Panama City) |
| Aug. 28, 1992 | (Respondent) Motion for Continuance filed. |
| Jun. 22, 1992 | Order Granting Continuance sent out. (hearing rescheduled for October 6-7, 1992; 9:30am; Panama City) |
| Jun. 11, 1992 | (Petitioners) Motion for Continuance; Notice of Appearance filed. |
| May 18, 1992 | Notice of Hearing sent out. (hearing set for 7-30-92; 9:30am; PanamaCity) |
| May 18, 1992 | Order of Consolidation sent out. (Consolidated cases are: 92-1698, 92-1699, 92-1700 and 92-2304) |
| May 18, 1992 | Case No/s 92-1698, 92-1699, 92-1700: unconsolidated. |
| Apr. 15, 1992 | (3) Notice (re: not counsel for petitioner) filed. (from E. Smiley) |
| Apr. 09, 1992 | Letter to CAC from Elijah Smiley (re: representation of petitioners) filed. |
| Apr. 08, 1992 | Order of Consolidation sent out. (Consolidated cases are: 92-1698, 92-1699 and 92-1700) |
| Apr. 07, 1992 | (Respondents) Answer to Petition for Relief filed. |
| Mar. 31, 1992 | Election of Method of Preservation of Record filed. |
| Mar. 31, 1992 | (joint) Complaince With Initial Order filed. |
| Mar. 19, 1992 | Initial Order issued. |
| Mar. 17, 1992 | Transmittal of Petition; Complaint; Notice of Determination; Petitionfor Relief; Notice to Commissioners and Respondent's Notice of Transcription filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 31, 1995 | Agency Final Order | |
| Jun. 01, 1993 | Recommended Order | Petitioners' unsatisfactory evaluations based on valid, non-discriminatory reasons, not on racial discrimination. Failure to establish prima facie case |
