STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELI CAMPBELL, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2473

) BAY COUNTY SCHOOL BOARD and ) JACK SIMONSON, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, P. Michael Ruff, in Panama City, Florida.

APPEARANCES

For Petitioner: Richard E. Johnson, Esquire

John C. Davis, Esquire SPRIGGS & JOHNSON

324 West College Avenue Tallahassee, Florida 32301

For Respondents: D. Lloyd Monroe, IV, Esquire

FULLER, JOHNSON & FARRELL, P.A.

111 North Calhoun Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondents demoted the Petitioner from the position of school principal to that of assistant principal in violation of Section 760.10, Florida Statutes, by reason of his race.

PRELIMINARY STATEMENT

This cause was initiated upon the filing of a petition for relief by Eli Campbell by which he sought an administrative proceeding to contest his removal from his position as principal at Rosenwald Middle School (Rosenwald) in Bay County Florida, allegedly on account of his race, which is black.

The Respondents maintained that the Petitioner was transferred to achieve a "change in direction" at Rosenwald in terms of achieving better administration and management of teachers, faculty, facility and the delivery of educational services, including maintaining safety, proper discipline, and academic progress by students as these concepts or goals relate to the position of principal. The Respondents contend that the Petitioner was demoted because of performance

problems in achieving such goals as these, which were not acceptable in a principal with his years of experience. Consequently, the Petitioner was offered an administrative position in the county administrative offices and organization which involved enhancing the recruitment of minority teachers. The Petitioner declined that position and was, therefore, reassigned to a position as an assistant principal at another school.

The cause came on for hearing as noticed. The Petitioner produced the testimony of twenty (20) witnesses and Respondents presented twenty-two (22) witnesses. The parties introduced numerous exhibits into evidence, as depicted and described in the transcript of the proceedings. The parties availed themselves of the right to file Proposed Recommended Orders after the hearing. After the granting of an agreed-upon extension of the schedule to file those pleadings, they were timely filed and are considered herein. Specific rulings are made on the proposed findings of fact in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner was the principal at Rosenwald at times pertinent hereto. He had been the principal of that school since July 1, 1980. The Petitioner had had generally satisfactory performance evaluations for the school years up to and including 1987-1988.

   
   

2. In November 1988, Respondent, Jack Simonson, was elected superintendent of the Bay County school system. Mr. Simonson, had run on a platform which included a position that he would insure that school administrators and employees at all levels were rigorously and objectively evaluated as to their performance. It is undisputed that the Petitioner was employed on an annual contract which had to be renewed each year upon renomination by the superintendent.

   
   

3. Upon until the first year of Mr. Simonson's tenure as superintendent, the Petitioner had received overall evaluations of achievement "at the level of expectation", which are generally satisfactory evaluations overall. In those evaluations, however, the Petitioner's evaluator did find that the Petitioner needed to communicate on a more ready, relaxed or less formal basis with his personnel and needed to create an atmosphere in which others working with him would feel freer to express themselves in a constructive and orderly manner. In the 1985-86 evaluation, it was found that the Petitioner needed to improve in areas of proper care and maintenance of the school plants, as to plant materials and equipment, and to improve in the area of employee discipline. Although these evaluations were overall at a satisfactory level of performance, these problems or areas of improvement correspond to deficiencies later determined under evaluations under Mr. Simonson's administration.

   
   

4. In the first year of Mr. Simonson's administration, which was the 1988-

   89 school year, assistant superintendent, Curtis Jackson, was assigned to evaluate the Petitioner. He was unable to complete that evaluation, and Mr. Simonson ultimately declared the evaluation incomplete and unofficial on June 28, 1989. The Petitioner, however, has admitted that this inability to complete the evaluation is not evidence of racial discrimination.

   
   

5. The Petitioner had been having problems with a particular student and felt it necessary to request a meeting with Mr. Simonson to discuss those problems. Accordingly, a meeting was held on May 2, 1989 between the Petitioner and Mr. Simonson. The Petitioner's problems with the student in question were

   discussed, and Mr. Simonson also discussed several areas of dissatisfaction he felt with the Petitioner's performance as principal. The meeting concluded and thereafter on June 21, 1989, the Petitioner, by memorandum, advised Mr. Simonson that his evaluation for the 1988-89 school year had not yet been completed.

   After declaring the Petitioner's evaluation incomplete on June 28, 1989, on August 1, 1989, Mr. Simonson drafted a memorandum describing the matters discussed at the May 2, 1989 meeting and further addressing areas of the Petitioner's performance as principal, which he viewed as substandard. Mr. Simonson met with the Petitioner on August 24, 1989 to discuss the contents of that memorandum and to discuss the areas in which Mr. Simonson felt the Petitioner's performance to be inadequate. A copy of that memorandum was placed in the Petitioner's personnel file on August 24, 1989. The Petitioner then prepared a statement of his contentions of what had occurred or been discussed at the May 2, 1989 meeting. That statement or memorandum does not appear to have been placed in his personnel file apparently because the Petitioner did not request that it be so placed.

   
   

6. In both the August 1, 1989 memorandum and the meeting of August 24, 1989, Mr. Simonson expressed dissatisfaction with a number of performance areas concerning the Petitioner's performance as principal at Rosenwald. He perceived an apparent lack of direction and supervision of staff and students; was concerned about alleged incidents involving sexual acts and acts of violence among students which resulted in the transfer of several students away from Rosenwald. He felt this indicated student unrest and lack of maintenance of disciplinary standards and which ultimately required the placement of a deputy sheriff at the school. He was concerned about complaints he had received concerning a "black heritage program". He admonished the Petitioner that no sort of racism, black or white, would be tolerated in the school system and that racist comments or inappropriate programs should not occur at the school site. Mr. Simonson apparently felt that the Petitioner had made an inappropriate response to the May 2, 1989 meeting consisting of criticizing other school personnel rather than focusing on constructive improvement ideas for the areas Mr. Simonson felt needed improvement in the Petitioner's performance. Mr. Simonson also expressed concern with the Petitioner's handling of school personnel matters and employee evaluations and his skill in staff selection.

   Mr. Simonson was also concerned with a perceived lack of support for school and district personnel, possible insubordination on the part of the Petitioner and his poor communication skills or efforts with staff and students.

   
   

7. Mr. Simonson then advised the Petitioner, by memorandum, that the following areas needed improvement: (1) student discipline, (2) recording keeping on discipline referrals of students, (3) administration of teacher evaluations in terms of the evaluations needing to be more rigorous and thorough, (4) school assembly programs should emphasize Americanism and not embarrass any child because of his or her race, (5) statements made to members of the public should be factually accurate, (6) Petitioner's acceptance of responsibility, (7) support for assistant principals, (8) need for improvement in cleanliness and appearance of the school, and (9) use of school facilities to conduct personal business. Mr. Simonson then advised the Petitioner that the means or methods to correct these perceived deficiencies should be in place by the end of the first semester of the 1989-90 school year, at which time another conference would be scheduled to review the areas of concern. This memorandum was designed to give further notice to the Petitioner that Mr. Simonson perceived there were problems in his performance at Rosenwald and that the Petitioner was expected to make improvement in the areas of perceived poor performance. The memorandum was not and was not represented to be an annual evaluation for the year 1988-89 and states that the Petitioner did not receive

   an evaluation for that year. The Petitioner, in turn, prepared a memorandum in response to that August 1, 1989 memorandum and had that memorandum placed in his personnel file.

   
   

8. The school district administration, including Mr. Simonson, received complaints from various sources in the 1988-89 and 1989-90 school years concerning disciplinary problems, safety problems, and problems involving poor academic progress of students at Rosenwald. Incidents occurred and others were alleged from reports of parents, students, or school employees concerning student violence and possible sexual assaults at Rosenwald. The concern over student safety ultimately culminated in the necessity of placement of a deputy sheriff as a school resource officer at the school. Through repetitive complaints of parents and others having contact with the school and its operations, Rosenwald had acquired a poor reputation for its academic quality and the safety of its students in terms of disciplinary problems and resulting dangers to student safety. Aside from the Petitioner's denial that Rosenwald had such a reputation, the evidence concerning it was unrebutted.

   
   

9. The evidence establishes that there were a number of areas where the Petitioner's performance was unsatisfactory. In such areas as mentioned above concerning discipline and student safety, as well as the scope of their duties, the Petitioner had communication and personal relationship problems with both his assistant principals in the 1988-89 school year. Those assistant principals had been assigned to Rosenwald with the Petitioner for several years. Until the 1988-89 school year, they had had a cordial working relationship, as well as a friendly, warm social relationship even to the extent of socializing with the Petitioner away from the school environment.

   
   

10. They became disappointed with the Petitioner's performance as their leader and principal during the 1988-89 school year in such areas as his handling of student discipline, particularly his alteration of their disciplinary measures, as well as disagreements with the Petitioner concerning the scope of their duties, in terms of additional duties he delegated them. These problems culminated in these assistant principals being reassigned by Mr. Simonson so that the Petitioner had a new set of assistant principals for the 1989-90 school year, Ms. Love and Ms. Stryker. However, the problems of poor communication and poor interpersonal relationships, particularly with Ms. Love, continued in that second school year. There was also poor communication and interaction between the Petitioner and other district and school personnel. The Petitioner on a number of occasions did not appropriately handle severe disciplinary problems. He allowed the parents of a student, who had committed a severe disciplinary violation, to berate the assistant principal who had sought to impose discipline on the student. He should not have allowed a confrontation between the assistant principal and the student's parents to occur. There was a severe disciplinary incident where a number of male students had stripped the clothes from a female student in the gymnasium while several teachers stood by and allowed the incident to happen. Even though the incident happened rather quickly, the teachers did not act quickly and decisively enough to prevent the incident from happening or happening in the severe manner in which it did. Mr. Simonson learned of the incident and wrote a letter to the Petitioner indicating his assumption that the Petitioner would certainly reprimand the teachers.

    After a substantial number of days elapsed and no reprimands were issued to the teachers, Mr. Simonson, in effect, ordered that they be reprimanded. He felt that the Petitioner displayed indecisive and weak leadership in handling this disciplinary situation, as well as others set forth in the evidence of record. On another occasion, a teacher brought several male students to the Petitioner's class for discipline because of disruptive, disrespectful conduct, including

    their reference to the Petitioner as "Uncle Eli" in the vein that he was thusly related to one of the miscreant students. It was their belief that "Uncle Eli" was their ally. The Petitioner heard the teacher's explanation of the problem and seemed to handle it in a lighthearted or casual fashion and dismissed the teacher from the presence of himself and the students and had an undisclosed discussion with the students out of the teacher's hearing. The result was that very little was done to discipline the students and the problem continued. The student related to the Petitioner continued to refer to him as "Uncle Eli" and appeared to rely on his relationship with the Petitioner to fail to follow proper rules of deportment.

    
    

11. The Petitioner displayed poor leadership abilities. He has typically blamed his disciplinary problems and other problems, such as poor communication skills at Rosenwald, on other teachers or non-instructional personnel and even blamed the disciplinary problems on the high number of minority students and students of a low socioeconomic class, which he characterized as the minority or black students. This was a pattern observed by Mr. Simonson and the assistant principals assigned in both years to the Petitioner, by which the Petitioner, instead of attempting to resolve the problem in a decisive way himself, would shift the blame for problems which were his responsibility to others. He was repeatedly unable or unwilling to accept responsibility for his own mistakes or for decisions that he was required, in his position as principal, to make without delegating them to others. He had a habit of delegating duties or responsibilities of his office to others without following up to see that the delegated duties were carried out. Then when the desired results were not achieved by the person to whom they were delegated, he would fail to accept responsibility for the failed task and instead would blame the failure on the person to whom the task had been delegated without accepting any responsibility himself.

    
    

12. He displayed a substantial degree of disorganization in his administrative duties and responsibilities. He did the required teacher evaluations belatedly and hurriedly so that they were fraught with numerous mistakes. In the course of attempting to do the teacher evaluations, he asked his assistant principals to make negative comments about certain teachers which made them uncomfortable because this was not appropriately their duty. Rather, the evaluations of the teachers was the sole responsibility of the principal. The Petitioner asked a parent to sign an affidavit in his support which was later listed as a potential exhibit in this proceeding during a meeting with the parent where the parent's stepchild's discipline was discussed and on that occasion, reduced. In the instance where the female student's clothes were torn off by a group of boys in the gymnasium, the Petitioner was slow to investigate and to make a decision concerning whether or not the teachers involved were negligent and whether or not they should be reprimanded. This necessitated Mr. Simonson's intervention in the question of discipline of the teachers who allowed the situation to occur. The condition of the school plant and grounds was another matter of concern of the county administration and Mr. Simonson.

    The plant condition had been allowed to deteriorate over time during the Petitioner's tenure as principal. His attention was called to it by Mr. Simonson and the county administration, and his reaction was that he had sent in work orders and the maintenance department had repeatedly refused to act upon them in a timely way. He also maintained that Rosenwald was getting reduced funds with which to make capital improvements or repairs, compared to other middle schools which he seemed to allude was for racially discriminatory reasons. In fact, it was established that the maintenance personnel of the county system had not delayed or refused to act upon maintenance request orders submitted by Rosenwald or the Petitioner, and it was established that Rosenwald

    had suffered no deficit in terms of capital outlay funds as compared to other schools. In fact, it had received more than some schools. When funds were not forthcoming for the projects which the Petitioner wanted accomplished, it was because of the great expense of constructing a new school and because of the preexisting maintenance, repair and capital outlay schedule arrived at and imposed by the prior superintendent's administration. Mr. Simonson was not able to alter this in a short period of time. Funds were scarce and had to be parceled out and scheduled for each school, taking into account that scarcity.

    The evidence shows in an unrefuted way, however, that Rosenwald received as much as any other school for the same items of maintenance or capital outlay and, in fact, received more than some schools. The Petitioner's testimony was impeached in these particulars.

    
    

13. In short, it was demonstrated that the Petitioner exhibited poor leadership skills and abilities in a substantial number of the areas that, indeed, Mr. Simonson had complained to him about, verbally and in the above- mentioned memoranda. In these memoranda, and particularly the August 1, 1989 memorandum, Mr. Simonson gave specific directions to the Petitioner regarding improvement of his performance and regarding the expectations the superintendent had regarding the Petitioner's administration of the Rosenwald school for the upcoming 1989-90 school year. Thus, the Petitioner was clearly on notice that he was expected to improve his performance with regard to the areas Mr. Simonson had discussed and forewarned him about as early as the spring of 1989, if he wished to remain as principal of Rosenwald. There is no question that Mr. Simonson attributed the various discipline, leadership, organizational and management problems existing at Rosenwald to the Petitioner's poor performance as a principal.

    
    

14. Although some improvement was noted by assistant superintendent Hamby when she evaluated the Petitioner during the 1989-90 school year, in large part, the Petitioner, instead of conscientiously seeking to effect improvements in his administration, embarked on an effort to challenge Mr. Simonson, in the electronic media and otherwise, regarding his views about the Petitioner's performance, even to the extent of publicly challenging various steps Mr. Simonson took to improve the situation at Rosenwald including his appointment of Ms. Love as assistant principal. He otherwise sought to transfer blame for shortcomings existing in the administration and management of Rosenwald to others, and to make excuses, including the attempt to publicly allege that his problems were the result of racial animus. He rallied the assistance of some of the faculty and black community to assist him in his effort to challenge Mr. Simonson.

    
    

15. One of Mr. Simonson's major campaign positions in seeking election as superintendent was to more rigorously evaluate school personnel. He carried this intent out after his election by regularly reminding administrators of his desire that they conduct accurate evaluations of the employees they supervised. During his term as superintendent, he strictly pursued the evaluation of district administrators. This policy resulted in the non-renewal of the contracts of four administrators, who were white. They were either returned to the classroom or left the school system. During his term, he reduced one black administrator from principal to assistant principal, the Petitioner. No black administrators were either returned to the classroom or terminated. Mr. Simonson repeatedly reminded the assistant superintendents and other administrators under him, responsible for evaluating the employees they supervised with the necessity for accurate, objective, and fair evaluations.

16. Accordingly, with a view toward evaluating the Petitioner for the 1989-90 school year, Mr. Simonson sought an evaluator who could objectively,

    fairly and accurately evaluate the Petitioner. Assistant superintendent, Glenda Hamby, had been hired as an assistant superintendent in June of 1989. She had not been in the Bay County school district administration or employ during the previous 1988-89 school year, having been a school superintendent herself in another county at that time. Mr. Simonson believed, because she had not been a part of the school system or administration, that she could have an objective, fresh approach in the evaluation process for the Petitioner with no preconceived notions concerning his capabilities or past or current performance. Therefore, Ms. Hamby commenced the evaluation process for the Petitioner for the 1989-90 school year. She evaluated him in accordance with appropriate, applicable procedures, and he was evaluated in the same manner as were all other principals. In accordance with Mr. Simonson's instructions to her, she actively lent assistance to the Petitioner to aid him in improving his performance in certain areas, such as pupil discipline.

    
    

17. Ms. Hamby visited Rosenwald and the Petitioner numerous times during the 1989-90 school year. She observed him at monthly principal meetings, middle school curriculum meetings, and sometimes at special curriculum meetings. She tried to help him by suggesting that he be more visible on campus, visit classrooms more frequently, in order to project the image that learning is important, as well as to help him in making teacher evaluations. She, at all times, "bent over backwards...to be very fair".

    
    

18. Ms. Hamby found that the Petitioner needed to make improvements in the area of leadership skills through better communication with students, faculty and other staff members, as well as administrators. She explained that an effective leader communicates well with students, parents, and staff. She rated the Petitioner "below expectation" in communicating skills because of a need to improve on internal communications with his staff, the need to give clear directions, make sure that his expectations were clearly understood, and the need to give clear, concise and properly-structured written communications. Ms. Hamby gave the Petitioner an overall evaluation of "below expectation" for the 1989-90 school year. He was given "below expectation" ratings in the areas of leadership, decisiveness, managing interaction, and communication skills. In the area of "persuasiveness", he was rated between "at expectation" and "below expectation". She tried to give him the benefit of the doubt in this area and used her discretion to not rate him at "below expectation", even though that was the category next lower than "at expectation", because she was trying to assist the Petitioner and be fair to him.

    
    

19. Some specific examples of the communication problems exhibited by the Petitioner in his performance as principal included miscommunication concerning the location and number of students to be in attendance at the "Freedom Shrine" dedication ceremony, a faculty meeting misunderstanding between the Petitioner and assistant principal, Ms. Love, exhibited in front of the other staff members, and a misunderstanding concerning funding for an ESOL program which resulted in the Petitioner erroneously firing an aide at Rosenwald because of his belief that funds for the program were exhausted. His misunderstanding concerning the aide's salary, funding situation, and his failure to accurately investigate the situation before acting is a clear example of poor communication skills, efforts and leadership.

    
    

20. Poor communication skills by the Petitioner are also evidenced by a summary he prepared of the May 2, 1989 meeting with Mr. Simonson. This summary, which was attached to Petitioner's FCHR complaint, contained numerous

    grammatical errors. The Petitioner acknowledged that the summary contained grammatical errors and admitted that improper grammar in a written communication diminishes the effectiveness of that communication. Additionally, while he attempted to blame the numerous errors in Respondent's exhibit 1 on "typos" (although it was attached to his FCHR complaint) a handwritten memorandum from the Petitioner also contains fundamental grammatical errors. See Petitioner's exhibit 68D in evidence.

    
    

21. Ms. Hamby rated the Petitioner "below expectation" in the area of decisiveness, because she had observed the Petitioner "a number of times" not being as decisive as he should have been. She particularly noted that he had the habit of delegating tasks to other staff members without accepting any further responsibility for those tasks. He would typically not follow up on a task he delegated, but later, if he disagreed with the way the task was handled, he would disclaim responsibility on the basis of the delegation and blame mistakes on the staff person carrying out the delegated task involved, even though his was the ultimate responsibility as principal to see that the task was accurately carried out.

    
    

22. In regard to the Petitioner's "below expectation" rating in managing interaction, Ms. Hamby recommended that he participate in a review seminar or in-service program on problem-solving techniques. Some of the reasons for the "below expectation" rating in managing interaction were the considerable difficulties he had in his relationships with two different sets of assistant principals and complaints from parents concerning discipline problems or

    miscommunications. Although Ms. Hamby explained her rating as to persuasiveness "at expectation" but above the "below expectation" rating as an attempt to be fair, she stated that she did see some improvement in this area in terms of persuasion and motivation of staff and students and focusing on learning, although not sufficient improvement.

    
    

23. Her rating of the Petitioner at "below expectation" in the area of organizational ability and delegation of authority was also based upon poor communication with his staff and failure to follow up and accept responsibility for delegated tasks. Ms. Hamby explained her overall evaluation of "below expectation" in terms of the Petitioner being an administrator of substantial years of experience but who was still demonstrating many of the behaviors seen most frequently in a first-year administrator which should be corrected after the first year. In a veteran administrator, Ms. Hamby felt one should not observe those same inadequate performances. Therefore, she ranked him at "below expectation".

    
    

24. When Ms. Hamby finished this evaluation, she wrote a memorandum to Mr. Simonson recommending that the Petitioner be re-assigned because she felt that he was simply not competent to be a principal at Rosenwald, especially given the fact that he had been a principal for a number of years and had not improved to an adequate degree. Thus, based upon her observations and consideration over the course of a substantial part of the school year, she made this recommendation to Mr. Simonson, and he approved it.

    
    

25. In many or most of the areas concerning the Petitioner's performance, the testimony of Ms. Hamby and Mr. Simonson is in direct opposition to that of the Petitioner. In this regard, it is determined that the Petitioner was the least credible witness of the three. He was impeached a number of times upon cross-examination. He testified, for instance, in a deposition, that three maintenance directors under three different superintendents' administrations had refused to timely perform work orders requested of them for work to be done at

    Rosenwald. At hearing, however, the Petitioner testified that, instead, he did not feel this was the case. He answered evasively concerning whether he had really meant capital improvement projects, instead of mere maintenance work orders (capital improvement projects are not necessarily the sole decision- making responsibility of maintenance directors), and testified, in effect, that he did not feel that that was the case until he was confronted by his earlier testimony, which he attempted to rationalize. Additionally, he testified at hearing that he had never attributed disciplinary problems at Rosenwald to the large number of blacks at the school, while in his written summary of the May 2, 1989 meeting with Mr. Simonson, he repeatedly does so and blames the disciplinary problems at Rosenwald on the large number of blacks with their attendant socioeconomic disadvantages and cultural differences. In this document and in his testimony at hearing, he affirmatively expressed the desire that the proportion of blacks in the "mix" of the student population at Rosenwald be reduced in order to improve the disciplinary problems. Another instance of the Petitioner's testimony being impeached occurred when, in the course of his testimony, the Petitioner disputed the testimony of David Ruttenberg. The Petitioner emphatically testified that Mr. Ruttenberg had signed a letter of reprimand issued to him by the Petitioner. The letter was then produced and introduced into evidence and clearly was unsigned by Mr.

    Ruttenberg.

    
    

26. Further, in carefully considering the testimony of Mr. Simonson, Ms. Hamby, and the Petitioner, and in observing their various personal demeanors on the witness stand, it is obvious to the Hearing Officer that the Petitioner in delivering his testimony was repetitively evasive and argumentative. He repeatedly sought to avoid directly answering questions, particularly those posed upon cross-examination. His evasiveness and argumentativeness effectively rendered his testimony pervasively self-serving. Contrastingly, the testimony of Mr. Simonson and Ms. Hamby was not effectively impeached. Their testimony regarding the deficiencies in the Petitioner's performance, when considered with that of the Petitioner, is more credible and worthy of belief. The Petitioner claimed repeatedly, but never established, that Mr. Simonson and Ms. Hamby, the various assistant principals and other administrators who had served under the Petitioner and Mr. Simonson were part of an illegal conspiracy to demote the Petitioner on account of his race. He never established that those persons had any communication between themselves concerning a scheme or concerted plan of action to get rid of the Petitioner for any reason, much less that of his race. Mr. Simonson may have expressed the intention to the Petitioner that he intended to remove him from his position if improvements were not made in the following school year, but there is no evidence whatever that Mr. Simonson and the other persons whom the Petitioner accuses of engaging in an illegal conspiracy ever communicated any illicit desire to demote or "get rid of" the Petitioner among themselves.

    
    

27. In summary, the evidence establishes that the Petitioner did not possess the qualities of leadership, communication skills, and disciplinary effectiveness, and other skills to a sufficient degree in order to be an effective principal at a middle school such as Rosenwald. The evidence establishes that he was unable to adequately perform those duties and functions as principal. It is important to note, and it is found, that although the evidence establishes that the Petitioner did not possess these skills to a sufficient degree to justify his retention as principal at Rosenwald, it is also established that Mr. Simonson had a good faith belief that the Petitioner's performance as principal in these particulars was so deficient and acted on that belief, rather than for reasons of discrimination against the Petitioner because of his race.

28. Upon receipt of Ms. Hamby's evaluation of the Petitioner, with the accompanying memorandum, Mr. Simonson recommended to the Respondent, Bay County School Board (Board), that the Petitioner be removed from the position of principal of Rosenwald. He did not, however, recommend his termination but rather that he be reassigned to another position. In due course, the Board voted 4 to 1 to adopt Mr. Simonson's recommendation that the Petitioner's principal contract not be renewed. Before taking the vote, the Board was advised that they could reject Mr. Simonson's recommendation that the Petitioner not be renominated should they believe it to be for discriminatory reasons and in violation of relevant federal law. The Board voted 4 to 1 to adopt Mr. Simonson's recommendation.

    
    

29. In discussing this course of action and recommendation with the Petitioner, Mr. Simonson told the Petitioner that there was a need for and that he had a desire to create a position in the county administrative office for which he felt the Petitioner would be well-suited, which was a position that would promote the recruitment of minority teachers. It would involve a lateral transfer at the same salary level. The Petitioner said that the offer "sounded good" and that he would like to discuss it with his wife and advise Mr. Simonson at a later time whether he wished to accept the position. Mr. Simonson agreed, but the Petitioner later advised Mr. Simonson that he did not want to accept that position and thereafter, the Petitioner embarked on the campaign culminating in the filing of the petition with the Human Relations Commission accusing Mr. Simonson and the Board of racial discrimination. Thus, the evidence reveals that, initially, Mr. Simonson did not intend to demote the Petitioner, but rather, sought to reassign him to a different position in the county administration at the same salary level. Ultimately, thereafter, the Petitioner was assigned to an available position as assistant principal at MowatMiddle School. The assistant principal's position in the school district's pay scale of necessity carried a lower salary level associated with it so that the Petitioner's salary was, therefore, reduced by his assignment to that position instead of the one offered by Mr. Simonson.

    
    

30. Mr. Simonson stated, when asked his reasons "in a nutshell" for reassigning the Petitioner, were that he had not seen the degree of improvement in the situation at Rosenwald that he would have liked to have seen exhibited during the past school year. Mr. Simonson testified that he felt Rosenwald needed a "change in direction" and it is obvious that Mr. Simonson meant that he was dissatisfied with the performance of the Petitioner as principal of Rosenwald and that, as described in his testimony, the degree of improvement he had indicated to the Petitioner was required before the 1989-90 school year commenced had not been realized at the end of that school year and the Petitioner was re-assigned. It is obvious that Mr. Simonson believed and testified, in effect, that a change in principals could bring a change in direction toward improvement of the conditions at Rosenwald, which he described in his testimony needed improvement, and which he had described as needing improvement to the Petitioner. Mr. Simonson was the decision-maker who recommended to the Board that the Petitioner be removed as principal for reasons of inadequate performance and the Board adopted that recommendation and reasons by its 4 to 1 majority vote. The evidence in the record clearly demonstrates in the form of Mr. Simonson's direct testimony that the above-mentioned reason articulated for the removal of the Petitioner as principal and his reassignment was for reasons of inadequate performance, in the context of the reasons clearly articulated in Mr. Simonson's direct testimony as the decision-maker who made the decision and recommended it to the Board. Mr. Simonson has clearly and

    adequately articulated nondiscriminatory reasons for the action he took and recommended to the Board and which the Board adopted.

    
    

31. During Mr. Simonson's four years as superintendent of Bay County schools, no other black employees instituted charges against him involving racial discrimination. During his tenure as superintendent, which was only one term, Mr. Simonson hired six black administrators. This was three times more black administrators hired than had been the case with the previous administration. When the Petitioner was removed as principal, Mr. Simonson recommended, and the Board approved, the non-renewal of the contracts of four other administrators, all of whom were white. Two of those white administrators were reassigned as classroom teachers, rather than being afforded the opportunity afforded the Petitioner to remain in an administrative capacity, albeit at reduced salary. At least one of those four white administrators who were demoted left the school district either by discharge or voluntarily in order to avoid the effect of demotion.

    
    

32. Upon the Petitioner's removal as principal, Mr. Simonson recommended, and the Board approved, his assignment of Ms. Carol Love, an assistant principal at Rosenwald, to be principal. Ms. Love is a white female. The evidence establishes that Ms. Love did provide a change in direction toward improvement of the conditions perceived as problems by the Petitioner. Students' test scores improved, discipline improved, and communication with the district personnel and amongst the school staff improved. Progress was made in terms of awards earned by the school and its students, as for instance in the local science fair competition. Under Ms. Love's administration at the school, parental and community involvement improved; and improvement was shown in instructional operations. Planning and involvement of the staff in planning and carrying out plans were shown to be improved, as were staff evaluations. Gradually, as a result of these measures, the community image of Rosenwald as an effective school improved. More efforts were made to seek new and different learning opportunities for students and educational enhancements for the school.

    
    

33. The evidence clearly establishes that Mr. Simonson and the Board's intent and reasons for re-assigning the Petitioner was not to discriminate against him because of his race or for any other discriminatory reason, but rather to seek improvements in the educational and disciplinary environment at Rosenwald. The remarks made by Mr. Simonson during a Lions Club meeting speech concerning which there was testimony and argument in this proceeding or those made regarding the celebration of "black history month" at Rosenwald did not establish that his reasons for demoting the Petitioner were pretextual. The remarks did not express any contempt, hostility, or a discriminatory animus toward blacks as a race or toward any blacks, including the Petitioner, in particular. In fact, Mr. Simonson expressly stated that he cared for his students, both black and white, and that he desired that the Bay County school system would begin to observe Martin Luther King Day as an official holiday. He stated that while he did not have any particular strong feeling about Dr. Martin Luther King and stated, in effect, that his attitude was essentially neutral concerning the subject of Dr. King and the holiday (much like he felt about Columbus Day) that he understood that it meant a great deal to black people and black students, or words to that effect. He also stated that he would not tolerate racism of any kind in his administration and the school system, or words to that effect. These statements, and the statements he was reputed by the Petitioner to have made, concerning the manner in which the "black history month assembly" was conducted and concerning the purported singing of the song "we shall overcome" at that assembly also did not exhibit any racial animus toward the Petitioner or any other black person, individually, or as a race.

    The gravamen and tenor of the remarks made by Mr. Simonson were clearly to the effect that he would not tolerate racism of any kind perpetrated by any person and expressed a particular concern that no student should be made to feel embarrassed on account of his race. Such remarks and statements do not show that the employment action taken, and the reason given, was a pretext for discrimination nor do they constitute direct evidence of racial discrimination because of the substance of the statements themselves, and the context in which they were made clearly shows that Mr. Simonson did not intend to express nor to mean by the statements any verbal act of hostility or discriminatory attitude, motive, or animus directed toward any individual because of his or her race, or to any group, because of the racial makeup of that group.

    
    

34. There was no evidence establishing an immediate past history of discrimination in the Bay County school system. Bay County had not just recently converted from a racially-dual system. The desegregation order in the Youngblood case was entered in 1970. The consent order concerning which testimony and argument has been elicited was entered in 1988. The consent order, however, cannot constitute evidence of an immediate past history of discrimination because there was no admission or proof, in the proceeding culminating in that consent order, that the Board and school district had engaged in racial discrimination. Rather, the consent order is merely a contract between the Board and school district and the potential litigants who entered into the agreement culminating in the consent order. That agreement was entered in hopes of avoiding litigation and in order to satisfy the concerns of one segment of the community concerning the issue of closing of some "sixth grade centers". The Board did not admit in the discussions culminating in the consent order, nor in the consent order, that any discrimination had or was taking place. Consequently, there has been no evidence in this case which can show an immediate past history of discrimination with regard to the Bay County school district.

    
    

35. Neither has there been any evidence which establishes that Rosenwald had been discriminated against in terms of capital outlay funding or in the completion of work orders for maintenance or other work. Concerning capital outlay, more money per student was spent at Rosenwald than at the other three middle schools. Additionally, nine out of every ten work orders submitted by Rosenwald were performed by the district. Mr. John Bruce, chairperson of the executive council of Acure (Advisory Committee for Urban Revitalization Equity), a plaintiff in the Youngblood case and a community supporter of the Petitioner during his tenure as principal at Rosenwald and during his efforts to regain that position, admitted that he did not contend nor believe that the Respondents had not fulfilled their obligations to eliminate discrimination in the area of facilities for a period of three years or longer.

    
    

36. In summary, the greater weight of the probative and relevant material testimony and evidence establishes that the Respondents, including Mr. Simonson, never took any discriminatory action against the Petitioner on account of his race. Mr. Simonson, as the decision-maker in the employment decision regarding the Petitioner, clearly articulated in his testimony a legitimate, nondiscriminatory reason for the action taken in removing the Petitioner as principal of Rosenwald, offering him another position suited to his talents and of equal salary, and ultimately, because he refused that position, appointing him as an assistant principal at reduced salary. The evidence establishes that the Petitioner's performance as principal at Rosenwald during the two school years in question was deficient and inadequate in such a way as to render him not qualified to hold or retain that position. The Petitioner has simply failed to prove his case.

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).

    
    

38. The issue to be resolved in this proceeding involves whether the removal of the Petitioner from his position as principal violated Section 760.10, Florida Statutes. That provision provides in pertinent part as follows:

    
    

    760.10(1) It is an unlawful employment practice for an employer:

    1. 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...

       
       

39. The Petitioner maintains that his removal as principal and alleged demotion to the position of assistant principal was for discriminatory reasons on the basis of his race, which is black, in violation of Section 760.10(1)(a), Florida Statutes. The Respondents maintain that the employment action being contested by the Petitioner was done for legitimate, nondiscriminatory reasons based upon and arising out of deficiencies in the Petitioner's performance as principal.

    
    

40. Actions brought pursuant to the above-quoted section are similar to actions arising under Title VII of the Civil Rights Act. Under Florida law, it is provided that when a state law is patterned after a federal law concerning the same subject matter, the Florida law will be afforded the same construction as the construction provided the federal law in the federal courts, to the extent that the construction is compatible with the spirit of the Florida legislation. See, O'Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991). Accordingly, Florida courts have looked to federal law regarding burden of proof in Title VII actions in making determinations regarding burden of proof in Chapter 760, Florida Statutes, cases. 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).

    
    

41. There are two means by which a party bringing a discrimination action can establish a prima facie case of discrimination pursuant to Section 760.10. First, direct evidence may be adduced showing discrimination. If the Petitioner can show direct evidence of race-motivated employment decisions, then the burden of proof shifts to the Respondents at that point 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-Waterhouse v. Hopkins, 490

    U.S. 228, 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 Company 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 is evidence of actions or remarks of an employer which reflected discriminatory attitude. See, Hill, 841 F.2d at 1539; Caban-Wheeler v. Elsen, 904 F.2d 1549 (11th Cir. 1990).

42. Direct evidence of discrimination does not exist in this case. Direct evidence of discrimination is evidence which proves the existence of the fact in issue without inference or presumption being necessary. See, 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 the Petitioner contends are direct evidence of discrimination did not show the contempt or hostility towards blacks, as a race or toward the Petitioner as a black person in particular, necessary for such comments to evince a discriminatory attitude, motive or animus. These comments, therefore, do not, without inference or assumption being applied to them, indicate or establish a discriminatory attitude and do not constitute evidence of discrimination.

    
    

43. Mr. Simonson's statements are distinguishable from the egregious and unambiguous racial slurs directed at an employee or employment decision which have been found to constitute direct evidence of discrimination. See, e.g., EEOC v. Beverage Canners, Inc., 897 F.2d 1067 (11th Cir. 1990)(supervisory individuals referred to blacks as "swahilis", "ignorant niggers", and 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, 779 F.2d 631 (11th Cir. 1986)(employer statement that he was not going to be made to hire a "Negro" constituted directed evidence); EEOC v. Alton Packaging Company, 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).

    
    

44. 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. Claire County Commission, 885 F.2d 1557 (11th Cir. 1989)(comment by hiring official that he "had nothing against blacks, and had in fact hired the first black at the 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. Al. 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 Mr. Simonson's comments made in the Lions Club speech or in conversing with the Petitioner concerning the "black history month assembly" to reflect discriminatory intent or motive, which Mr. Simonson was shown not to intend, as demonstrated by the above Findings of Fact, an inference would be required because the comments themselves do not express racial animus, unambiguously or otherwise. Therefore, they cannot constitute direct evidence of discrimination.

    
    

45. Since the Petitioner has not adduced direct evidence of discrimination, the standard of proof which applies to this proceeding is governed by McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

    101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The Petitioner in his trial brief lists the following elements of a McDonnell-Douglas prima facie case in a demotion case: (1) the plaintiff is in a protected class, (2) the plaintiff has suffered an unfavorable employment action by the employer covered by applicable law, (3)

    the plaintiff was performing his job at a level that met his employer's legitimate expectations, and (4) following his demotion, the employer sought a person outside the protected class to perform the same work, citing Gilyard v. South Carolina Department of Youth Services, 667 F.Supp. 266 (DSC 1985). This version of the McDonnell-Douglas test appears to be consistent with that used in National Industries, Inc. v. Commission on Human Relations, 527 So.2d 894, 896 (Fla. 5th DCA 1988)(in a Chapter 760, Florida Statutes, proceeding, the plaintiff met the burden of establishing a prima facie case by showing that the plaintiff was married, was performing her job in a satisfactory manner, and despite her satisfactory performance, she was discharged). 1/ In Nelson v.

    School Board of Palm Beach County, 738 F.Supp. 478 (S.D. Fla. 1990)(cited in Petitioner's trial brief), the court held that the plaintiff sufficiently pled the elements of a prima facie case under Title VII by alleging that she was doing "exemplary" work prior to her demotion.

    
    

46. In Nesmith v. Martin-Marietta, 676 F.Supp. 1183 (M.D. Fla. 1987), aff'd. 833 F.2d 1489 (11th Cir. 1987)(involving a Title VII promotion and discharge), the court addressed what constitutes qualification for a position. The court held that qualification for a position is not only educational credentials and experience, but also the competence to perform the required task, encompassing an ability to cope with the consequent job pressure. The court held that the plaintiff in Nesmith failed to present a prima facie case in regard to promotions where his supervisors testified that his performance and preparatory training programs showed he could neither handle the work nor the job-related stress, and when plaintiff did receive a desired transfer, he could not perform assignments commensurate with his salary and grade level.

    
    

47. Further, in Mira v. Monroe County School Board, 687 F.Supp. 1538 (S.D. Fla. 1988), a promotion case, the court described the McDonnell-Douglas test as follows: (a) plaintiff is a member of a protected class, (b) plaintiff was qualified for the position and/or satisfactorily performed the duties of the position, (c) plaintiff was denied a promotion, (d) plaintiff was treated differently than similarly-situated employees who were not members of a protected class. The court therein held that the plaintiff failed to carry the burden of proving a prima facie case when there was evidence that the plaintiff was unable to handle the supervisory responsibilities associated with the position in question, and had demonstrated an inability to effectively deal with employees and principals.

    
    

48. The Petitioner, like the plaintiffs in the Mira and Nesmith case situations, was apparently unable to satisfactorily perform the duties as principal at Rosenwald. The evidence establishes that he had communication problems, interaction management problems with staff and students, leadership skill deficiencies as delineated in the above Findings of Fact, significant disciplinary problems, and problems with general organization and management of his office and duties as the chief manager of the school in his position as principal. This proceeding is thus comparable to the factual situation addressed by the court in the Mira case, in that the Petitioner herein was unable to handle his supervisory responsibilities adequately and was unable to effectively relate to, communicate with, and otherwise deal with other administrators and staff members. Further, because the Petitioner was not performing assignments commensurate with his level of experience, his performance was comparable to that situation addressed in the Nesmith opinion. Accordingly, the Petitioner has not actually proven a prima facie case of race discrimination in his case, which might be termed a "demotion case", since ultimately the Petitioner was assigned an assistant principalship after being removed as principal (although Mr. Simonson offered him a bona fide lateral

    transfer to another position at the same salary, which would not have constituted a demotion had the Petitioner accepted it).

    
    

49. Even assuming, however, that the Petitioner established a prima facie case herein, the Respondents clearly articulated a legitimate, nondiscriminatory reason for the employment action taken, which the Petitioner did not prove to be pretextual. Mr. Simonson testified that he removed the Petitioner as principal because he felt a change in direction was needed at Rosenwald, and he felt that someone else could provide that change of direction, meaning, based upon the gravamen of his entire direct testimony as "decision-maker", that the Petitioner's performance had been substandard and the change in direction needed in Mr. Simonson's view was that a person needed to be placed in the principalship who could perform in a way so as not to exhibit the deficiencies in performance exhibited by the Petitioner. Mr. Simonson explained in his testimony that the change he desired at Rosenwald was accomplished by increased parental involvement, progress by Rosenwald's staff, students and faculty and receipt of awards and participation in such educationally-enriching activities as the science fair, and generally increased accord and better communication between staff members, between staff members and students and between staff members and county-level administrators. Mr. Simonson's testimony in this regard should be viewed in the context of other testimony, his, as well as that of several other witnesses which establish that Rosenwald had a poor reputation in the general areas of discipline, academics, and safety, as described more particularly in the above Findings of Fact and that improvement was needed in those areas and others. 2/ This articulated reason in Mr. Simonson's testimony is sufficient under the opinion in Texas Department of Community Affairs v. Burdine, supra., and its progeny in the opinions of the 11th Circuit Court of Appeals.

    
    

50. In this connection, the Petitioner maintains that Mr. Simonson has failed to adequately articulate a legitimate nondiscriminatory reason for the Petitioner's demotion, citing Impact v. Firestone, 893 F.2d 1189 (11th Cir. 1990), cert. den., U.S. , 111 S.Ct. 133, L.Ed.2d (1990); and Uviedo v. Steve's Sash and Door Company, 738 F.2d 1425 (5th Cir. 1984), cert. den. 474 U.S. 1054, 106 S.Ct. 791, 88 L.Ed. 769 (1986). The Impact and Uviedo opinions are factually distinguishable from the current proceeding. A court in the Impact case addressed employment decisions regarding the number of employees alleging discrimination. The defendant called as a witness its "principal personnel officer", who was hired years after the employment decisions at issue had been made. He therefore had not participated in the decisions at issue. This person testified that the general practice was to hire the most qualified applicant. The actual hiring official did not testify in a single case and there was no evidence presented as to his or her intent. In this framework, the court stated:

    
    

    In not a single case, did the defendants offer proof by any person who made the employment decision, or any other person, stating that the decision was made on the basis of what

    he or she thought demonstrated the best qualified person.

    
    

    Impact, at 1193-94. The court declared that:

    
    

    [T]he mere statement that the state selected the 'best qualified' would be insufficient to

    satisfy the Burdine requirements. Qualifications

    for selection of an employee can depend upon seniority, length of service in the same position, personal characteristics, general education, technical training, experience in comparable work or any combination of them. A mere statement that an employer hired the best qualified person leaves no opportunity for the employee to rebut the given reason as a pretext....

    
    

    Impact, at 1194. The employment decisions at issue in the Impact opinion involve situations where specific facts were presented in individual cases presumably to show pretext. In no case, however, did the actual hiring officials testify as to the basis of the hiring decision. Therefore, the plaintiffs were required to demonstrate as pretextual the general reason that the "best qualified" person was selected without having any specific information as to how the best qualified persons were determined in the individual cases.

    
    

51. The facts in the case at bar and those supporting the opinion in the Impact case are distinctly different. In the instant proceeding, the individual who made the decision to remove the Petitioner as principal, Mr. Simonson, as well as his assistant who recommended that action, Ms. Hamby, both testified directly. Their testimony specifically addressed at length and in detail the basis for their employment decision in the Petitioner's case. The reasons articulated may be viewed in the context of relevant evidence concerning the conditions at Rosenwald at the time the Petitioner was principal and the evidence concerning how the Petitioner responded to problems which arose at Rosenwald and how he performed the various elements of his job. The Impact decision does not stand for the proposition that other competent evidence, especially that offered by the decision-makers themselves in the factual situation at issue, which provides further detail, explanation, or elaboration on the articulated reasons, should be ignored.

    
    

52. The Uviedo opinion is also factually distinguishable from the facts of the case at bar. The Uviedo court found that the defendant had not articulated a nondiscriminatory reason because, although the record contained facts which could be legitimate reasons for not promoting the plaintiff, the defendant never testified that these reasons were, in fact, the basis for the decision. The court stated that the issue in a disparate treatment case is the hiring official's intent, and held that the reason was never articulated in that case because no evidence of the hiring official's intent was offered. The court stated:

    
    

    A general policy statement regarding pay, without evidence that it was related to this particularized decision, is only of the most attenuated relevance. Moreover, the state- ment [in question]...did not even purport

    to apply to the promotion situation.

    
    

    Uviedo, at 1430.

    
    

53. Unlike Uviedo, in this proceeding, evidence was offered as to Mr. Simonson's intent in deciding that the Petitioner be removed as principal. When Mr. Simonson's articulated reason is viewed in the context of all of his testimony, it is evident that he removed the Petitioner because the problems at Rosenwald showed him that the school needed a new principal to better lead the

    school in alleviating those problems and providing a "change in direction". Further, most of Mr. Simonson's testimony directly concerns those problems which he said the Petitioner could not adequately address in his performance, as observed by Mr. Simonson and others, and as described in his testimony. His testimony as to what those problems were and the fact that they were the reason that he removed the Petitioner as principal renders it obvious that the majority of Mr. Simonson's testimony in those particulars constitutes an articulation of his reasons for the employment decision, which was because of deficiencies in the Petitioner's performance as principal and not because of his race. Evidence of Mr. Simonson's intent to this effect was offered in compliance with the Uviedo opinion and he testified in a way compliant with the strictures of the Impact decision. The reason articulated meets the analysis of the court in both these cases and is sufficient to rebut a prima facie case.

    
    

54. The Respondents rebutted any inference of discrimination presented by a prima facie case by articulating a legitimate, nondiscriminatory reason for the employment action. 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 a factual dispute and is not a burden of proof. See, also, Busby v. City of Orlando, 931 F.2d 764, 777 (11th Cir. 1991). Under the McDonnell-Douglas test, the ultimate burden of proof in regard of the issue of discrimination remains with the petitioner at all times. Burdine, supra. at 253; Walker v. Ford Motor Company, 684 F.2d 1355, 1359 (11th Cir. 1982).

    
    

55. The Respondents rely on the following cases for the proposition that proof of immediate past history of discrimination can shift the burden of justifying an employment decision to the Respondents by clear and convincing evidence. Lee v. Conecuh County Board of Education, 634 F.2d 959 (5th Cir. 1981); Harris v. Birmingham Board of Education, 712 F.2d 1377 (11th Cir. 1983); Gilchrist v. Bolger, 733 F.2d 1551 (11th Cir. 1984); Lee v. Washington County Board of Education, 625 F.2d 1235 (5th Cir. 1980). However, in the Hammond v. Rapides Parish School Board, 590 F.Supp. 988 (W.D.La. 1984), aff'd. at 755 F.2d 171 (11th Cir. 1985), cert. den. 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985), the court questioned the continued vitality of Lee v. Washington County Board of Education, and Lee v. Conecuh County Board of Education after the Burdine decision by the Supreme Court. The reason for questioning the continued authority of these cases is that the Burdine opinion held that the burden of proof always remains with the employee. To hold that a recent past history of discrimination shifts the burden of proof under the McDonnell-Douglas test to the employer seems to conflict with this requirement under the Burdine decision. In the Harris decision, decided in 1983 after the Supreme Court's 1981 Burdine decision, the Eleventh Circuit ruled that proof of immediate past history of discrimination can still be sufficient to shift the burden of justifying its employment decisions, by clear and convincing evidence, to the employer. This holding is explained to some degree in Castaneda v. Piccard, 648 F.2d 989, 994

    n.2 (5th Cir. 1981), where the court states:

    
    

    Although the court's opinion in Burdine clearly disproves that this circuit's previous practice of requiring the defendant in a Title

    VII case to prove the existence of a legitimate nondiscriminatory reason for a challenged employment decision by a preponderance of the evidence we do not believe that Burdine affects the burden shifting device we have long employed in the distinctive context of claims alleging

    discrimination whether in employment or other areas by school districts with a long history of unlawful segregation...the application

    of this standard under these circumstances, is consistent with the type of presumptions approved by the Supreme Court in Swan v.

    Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554

    (1971)...and Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 208, 93 S.Ct.

    2686, 2697, 37 L.Ed.2d 548 (1973)...we do

    not believe the court in Burdine intended to set the manner in which this court has applied a presumption similar to that recognized in Swan and Keyes to place on school districts having a history of unlawful discrimination a more onerous burden of rebuttal in employment discrimination cases than is usually imposed on a defendant in a Title VII case.

    
    

    Castaneda, at 994 n.2.

    
    

56. Although the Eleventh Circuit distinguished this line of cases from the Supreme Court's holding in Burdine, the continued vitality of these cases may be in question following the Supreme Court's decision in Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In Hopkins, the court states:

    
    

    Conventional rules of civil litigation generally apply in Title VII cases,...and one of these rules is that parties to civil litigation need only prove their case by a preponderance of the evidence...exceptions to this standard are uncommon, and in fact are ordinarily recognized only when the government seeks to take unusual coercive action-action more dramatic than entering an award of money damages or other conventional relief against an individual...only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief...and we find it significant that in such cases it was the defendant rather than the plaintiff who sought the elevated standard of proof- suggesting that this standard ordinarily serves as the shield rather than as Hopkins seems to use it a sword...

    
    

    Hopkins, at 1792.

    
    

57. In light of the court's discussion of the situations where a clear and convincing standard of proof would be required, it would seem that Hopkins implicitly overrules Lee v. Conecuh County and the line of cases requiring that respondent rebut a prima facie case of discrimination under Title VII by clear and convincing evidence if there is proof of an immediate past history of racial

    discrimination. In Harris v. Birmingham Board of Education, 712 F.2d 1377, 1383 (11th Cir. 1983), the court stated that in both Lee v. Conecuh County and Lee v. Washington County, the school boards had recently converted from racially-dual systems. Implicit in the holdings of the cases is that proof of an immediate past history of racial discrimination may be established by showing the existence of various desegregation orders where the schools recently converted from racially-dual systems. In the current proceeding, however, it is undisputed that the desegregation order in question was entered in 1970, 23 years ago. Unlike the Conecuh and Washington County situations, Bay County has not recently converted from a racially-dual system. Therefore, this order is not recent enough to constitute evidence of an immediate past history of racial discrimination and the holdings in those cases do not affect the Respondents' burden of proof in this case. Neither is there any evidence that the Respondents have not complied with the desegregation order since that time.

    
    

58. The 1988 consent order entered into by agreement of the parties in the Youngblood case was a contract entered into to avoid the anguish and expense and devisiveness of litigation. The consent order stated that certain schools were to remain open; but in no way did it make any determination, nor was any admission made, that there were any discriminatory practices occurring in the Bay County school system before entry of that consent order. Therefore, the consent order does not serve as proof of any immediate past history of racial discrimination for purposes of this case. Accordingly, even if the Petitioner's cases cited for the proposition that the burden shifts to prove a legitimate, non-discriminatory reason for the employment action by clear and convincing evidence if there was an immediate past history of racial discrimination, those cases cannot apply under the facts of the current proceeding where there has been shown to be no immediate past history of racial discrimination.

    
    

59. Once Mr. Simonson articulated his legitimate, non-discriminatory reason for the employment action in question, the Petitioner must prove by a preponderance of the evidence that the reason was pretextual. See, Burdine, supra. The Petitioner in this case has not met that burden. The record establishes that the Respondents desired a change in direction at Rosenwald so as to alleviate the problems in leadership and performance as principal exhibited by the Petitioner, and Mr. Simonson was shown to have a genuine belief and intent that he could achieve that goal by obtaining a new principal and a new form and degree of leadership at Rosenwald. There is extensive evidence that Mr. Simonson attributed the problems at Rosenwald and Rosenwald's poor reputation for academics, discipline, and safety to the Petitioner's incompetence as principal. Even if a variant interpretation of the evidence might show that Mr. Simonson's opinion and belief as to the competence of the Petitioner as principal is erroneous in part or in its entirety, the evidence clearly shows in a preponderant way that his belief concerning the Petitioner's incompetence as principal was a good-faith, genuinely-held belief upon which he acted. He did not act for reasons motivated by racial discrimination. There is considerable evidence that the desired change in direction at Rosenwald was, in fact, achieved in many areas after the Petitioner was replaced. There was no direct proof of racial animus by Mr. Simonson, and the evidence establishes that he, in fact, said he would not tolerate racism of any kind in the school system and that he cared for his students, both black and white. He supported the declaration of Martin Luther King, Jr.'s birthday as an official school holiday, he hired three times as many blacks during his administration as had any previous administration, and no other black filed a discrimination charge against Mr. Simonson during his tenure as superintendent. Moreover, in the same evaluation and re-hiring period when he removed the Petitioner as principal, Mr. Simonson also demoted four other administrators, all of whom were white. The

    evidence simply does not show that race was a factor in the Respondents' decision to remove the Petitioner as principal and to reassign him.

    
    

60. Neither is the fact that the Petitioner received satisfactory evaluations from other administrations before Mr. Simonson's probative of any intent by the Respondents to discriminate in taking the employment action against the Petitioner. Comparisons of evaluations over a length of time simply are not probative of discriminatory intent, especially where the structure and leadership of the department in question has changed dramatically. This is especially true in this case where two of the earlier evaluations indicate that the Petitioner needed improvements in the areas Mr. Simonson and Ms. Hamby later determined were substandard. The lower evaluation of the Petitioner accorded in 1989-90 is also a reflection of Mr. Simonson's implementation of a more rigorous evaluation technique and policy that had been used in previous years and of which he had given notice during his election campaign, well before he had any personal supervision over or differences with the Petitioner. The more rigorous and objective evaluation techniques imposed by Mr. Simonson were not shown to be applied in a discriminatory fashion with the Petitioner or any other district personnel. See, Villaneuva v. Wellsley College, 930 F.2d 124 (1st Cir. 1991) cert. den. U.S. , 112 S.Ct. 181, 116 L.Ed.2d 143 (1991). Although the evaluation was shown by preponderant evidence to have been a fair one, it has been held that Title VII does not protect against employment decisions based upon unjust or shrewd business policies, as for instance, a termination for a mistaken reason, so long as the employment action is not based upon race. See, Glover v. Lockheed Corporation, 772 F.Supp. 89 (DSC 1991).

    
    

61. The Petitioner complained of the fact that he did not receive an evaluation for the 1988-89 school year, as well as the time period in which a memorandum was placed in his personnel file, as being indicative of discriminatory treatment. The facts do not support this theory. First, it is clear that Mr. Simonson desired that the Petitioner receive a 1988-89 evaluation. Furthermore, it is clear that the memorandum placed in his personnel file on August 24, 1989 complied with the time period prescribed in Section 231.291(1)(b)1., Florida Statutes, because the summer vacation period is excluded from the compilation of the 45-day period. Even if the Respondents did not comply with Chapter 231, Florida Statutes, in evaluating the Petitioner in the 1988-89 school year, that fact alone is not indicative of discrimination. The Petitioner himself admitted that he did not view Curtis Jackson's failure to complete the evaluation as evidence of discrimination. Given the fact that the district perceived problems in the Petitioner's performance during that 1988-89 school year, the fact that the Petitioner was not formally evaluated only benefited the Petitioner. There is no evidence to show any lack of a formal evaluation as being connected with the furtherance of any discriminatory intent by Mr. Simonson.

    
    

62. The Petitioner also seemed to decry the fact that he was not evaluated within the precise time table provided for in the "HRMS Plan" as evidence of discrimination. The evidence, however, establishes that no principal was evaluated exactly within the time guidelines because of the late appointment of HRMS director, Sue Cochran. Therefore, the Petitioner was shown to have been evaluated in the same manner as were the other school principals, and the inability of Ms. Hamby to comply with those guidelines is not probative of any discrimination. See, Gomez v. Metro-Dade County, 6 FLW Fed. 329 (S.D. Fla. 1992)(indicating that Title VII does not prohibit an employment decision which is prohibited by other laws, as long as the policy involved is equally applied to all employees).

63. The Petitioner's claims of conspiracy were not substantiated in the evidence. Each alleged actor in the conspiracy denied its existence, and there was no independent evidence presented to prove that there was any conspiracy or effort to act in concert to remove the Petitioner from his job as principal.

    The evidence, at most, demonstrates that the alleged co-conspirators were simply individuals who were employed in positions whereby they became aware of the characteristics of the Petitioner's performance as principal and may have reported those characteristics to the Respondents. They may have formed opinions that the Petitioner's performance was sub-standard. There was no evidence, however, from which it may be inferred that they viewed the Petitioner's performance as sub-standard on account of his race. Accordingly, for the foregoing reasons, the Petitioner has not proven that the Respondents' articulated reasons for demoting him were pretextual.

    
    

64. The parties raised certain evidentiary issues at hearing which they chose to address in their post-hearing pleadings with the encouragement of the Hearing Officer. Thus, the Respondents assert that the Florida Commission on Human Relations determination of no cause and redetermination of no cause are admissible, pursuant to Section 120.58, Florida Statutes, citing the opinion in School Board of Leon County v. Hargess, 400 So.2d 103 (Fla. 1st DCA 1981). Notwithstanding that decision, the Hearing Officer determines that these are de novo proceedings and are not proceedings which merely review the prior decisions made by the agency when the matter was within the jurisdiction of the agency. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

    
    

65. The parties also submitted argument and authority on the question of whether an alleged comment by Carol Love, assistant principal and later principal at Rosenwald, to Mr. Bill Martinec, a teacher at Rosenwald, was inadmissible hearsay. Based upon the authority cited in the argument advanced by the parties, the Hearing Officer determines that although her comment may not be admissible under Section 90.803(18)(e), Florida Statutes, because evidence of conspiracy was not proven in this case, that the alleged comment is, however, admissible, pursuant to Section 90.803.18(d), Florida Statutes. This is because it constituted a statement of the Respondents' agent or servant concerning a matter at least broadly within the scope of her employment, even though she was not making the statement in response to any duty imposed by her employment. Be that as it may, however, that comment, concerning the possible motivation for Ms. Love going to Rosenwald as assistant principal, possibly in hopes of becoming principal, does not establish any conspiracy, in motive, or actual conduct on her part nor on the part of Mr. Simonson. It does not, even in conjunction with other evidence, establish any racially-discriminatory intent or motive on the part of the Respondents. While it may have shown some intention already forming in the mind of Mr. Simonson that the Petitioner might at some point have to be replaced due to the perceived poor performance as principal, the Petitioner himself was already on notice of Mr. Simonson's displeasure with his performance in a number of particulars at least as far back as May 2, 1989 at the meeting they had on that date at which his performance was thoroughly discussed. This comment simply cannot constitute any credible evidence pointing toward any racially-discriminatory motive or conspiracy on the part of Mr. Simonson or Ms. Love.

    
    

66. In summary, in view of the above Findings of Fact and Conclusions of Law, it must be determined that the Respondents commited no violation of Section 760.10, Florida Statutes, in the removal of the Petitioner as principal of Rosenwald and his reassignment (after he refused the lateral transfer to another position at the same salary) as an assistant principal at a different school.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is

RECOMMENDED that a Final Order by entered by the Florida Commission on Human Relations finding that the Respondents have not violated Section 760.10, Florida Statutes, with regard to the employment action taken against the Petitioner, Eli Campbell.

DONE AND ENTERED this 10th day of August, 1993, in Tallahassee, Florida.

P. MICHAEL RUFF 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 10th day of August, 1993.

ENDNOTES

1/ But, see contra, Napier v. Weyerhauser, Inc., 766 F.Supp. 1574 (M.D. Ga., 1991)(Title VII case holding that in situations where plaintiff is discharged from previously-held position, the McDonnell-Douglas test, as modified, does not require proof of qualification citing Rosenfield v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1495 n.2 (11th Cir. 1987)(and ADEA, not Title VII, case which states that whether a plaintiff is adequately performing his/her job should be addressed at the stage of proceedings where the defendant articulates legitimate reasons for the discharge and where the plaintiff addresses pretext). See, also MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115 (10th Cir. 1991)(ADEA case).

2/ Since Petitioner had only an annual contract as principal of Rosenwald, which had to be renewed each year, it is undisputed that he served the pleasure of the superintendent. In the context of this case, therefore, the superintendent could demote him for any reason, as long as it was not discriminatory.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2473

Petitioner's Proposed Findings of Fact:

1-9 Accepted, but not as materially prohibitive of the ultimate factual and legal issues

1. Rejected, as not entirely in accordance with the preponderant weight of the evidence.

2. Rejected, as not entirely in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on the subject matter.

3. Rejected, as not entirely in accordance with the preponderant weight of the evidence and a partial mischaracterization of testimony.

4. Rejected, as not being entirely in accord with the preponderant weight of the evidence, as being in part recitations and discussions of testimony, rather than a proposed Finding of Fact.

5. Accepted, in part, but not as to its purported material import in terms of indicating racially discriminatory motivation.

6. Rejected, as not supported by the weight of the evidence and to some extent immaterial.

16-17 Accepted, but immaterial.

18-20 Accepted, in the sense that the Respondent made the statements quoted but not as to the representation made concerning their context or as to the purported material import with which they are advanced concerning the material factual and legal issues in this case.

21-24 Accepted, but not dispositive of the material factual and legal issues presented.

1. Rejected, not in accordance with the preponderant weight of the evidence.

2. Accepted.

3. Rejected, as not supported by the greater weight of the competent, credible evidence.

4. Accepted, but not materially dispositive.

29-30 Accepted, but not materially dispositive. Accepted as a fact but rejected as immaterial in its prohibitive import.

1. Accepted, although it is not clear that the Petitioner was demoted since he was offered a lateral transfer to a position of equal salary and a position in which his talents could be well used.

2. Accepted, but Mr. Simonson's initial decision was to laterally transfer the Petitioner to a position of equal salary in the administration and was not necessarily a decision to demote, but rather a decision to remove him as principal. He was only reassigned the position of assistant principal when the Petitioner rejected the offered position.

3. Rejected, as not in accordance with the preponderant weight of the evidence. Indeed, Simonson testified thusly in response to his attorney's question, but much of Simonson's testimony constitutes a clear articulation of the reasons for the employment action he recommended and took. The response to his attorney's question concerning the reasons for demoting the Petitioner in reality constitutes only Mr. Simonson's brief summation of the lengthy articulation of reasons made throughout his testimony concerning the poor performance of the Petitioner, his communication with the Petitioner concerning his dissatisfaction without performance and the notice he gave to the Petitioner still during his tenure as principal that it may be grounds for his removal.

   The preponderant weight of the evidence does not render it a true statement that "no other reason is identified or labeled as a ground for the demotion." Much of the testimony of the Respondent is an articulation of the reasons for the employment action taken.

4. Rejected, as not being an accurate statement of what Mr. Simonson told the Petitioner in this regard at the May 2nd meeting because the evidence shows that Mr. Simonson's statement to the Petitioner and his testimony concerning this meeting does not indicate that he already had decided firmly to get rid of the Petitioner nor that the Board had. It was rather in the nature of a warning of possibilities if an improvement were not effected.

5. Rejected, as a mischaracterization of the testimony supporting this proposed Finding of Fact.

6. Accepted, but immaterial.

7. Rejected, as not supported by competent, credible testimony or evidence. The allegedly overheard comment related to Mr. Harris, who in turn, allegedly related it to the Petitioner is unsubstantiated hearsay and counsel for the Petitioner himself did not offer it for proof of the truth of the statement but rather merely to indicate the Petitioner's state of mind concerning his opinion that Mr. Simonson might be about to remove him and, therefore, that the statement and that state of mind or opinion harbored by the Petitioner would be explanatory of the Petitioner's later conduct.

38-39 Rejected, as not supported by the preponderant weight of the credible evidence and testimony. Rejected, as not supported by the preponderant weight of the credible testimony and evidence and a mischaracterization, in part, of the credible testimony of Ms. Hamby.

1. Accepted, but not itself materially dispositive.

2. Rejected as not in accordance with the preponderant weight of the testimony and evidence.

3. Rejected as subordinate to the hearing officer's Findings of Fact on this subject matter and as not entirely in accordance with the preponderant weight of the evidence.

4. Accepted.

5. Accepted, but not in the sense that it renders their testimony incredible.

6. Accepted in the sense that these were the only incidents specifically described, but not in the sense that the witness testified those were the only incidents.

46-48 Accepted but not in the sense that the witness Commerford was impeached because he could not recall specific details of other incidents and had not raised the matter with the Petitioner or Mr. Simonson.

49-50 Accepted.

1. Accepted, but not itself materially dispositive.

2. Accepted.

53-58 Accepted, but not in themselves materially dispositive of the ultimate factual and legal issues presented.

1. Accepted, but not itself materially dispositive.

2. Accepted as description of testimony, but not materially dispositive, standing alone.

3. Rejected as subordinate to the hearing officer's Findings of Fact on this subject matter and as not entirely supported by the preponderant weight of the evidence.

4. Accepted, but not itself materially dispositive.

5. Rejected as not in accordance with the preponderant weight of the evidence.

6. Accepted as to its characterization of the testimony, which is not actually a proposed finding of fact on the issue here dealt with, but not accepted as to its material import.

7. Rejected as irrelevant.

8. Accepted, but not as materially prohibitive of the presence of racial discrimination as the intent behind the Respondents' actions.

9. Rejected as subordinate to and contrary to the hearing officer's Findings of Fact on this subject matter and as not entirely supported by preponderant weight of the evidence.

10. Accepted, but not materially dispositive.

69-70 Accepted, but not as materially dispositive because it does not contradict the credible testimony of Hamby and Simonson

1. Rejected, as not being in accordance with the preponderant weight of credible testimony. Ms. Hamby's testimony is accepted over that of Mr. Martinec and Mr. Campbell.

2. Rejected. The credible preponderant evidence reflects otherwise. Ms. Hamby had ample opportunity to observe deficiencies in the Petitioner's written communication, at page 164 of the transcript of her testimony clearly shows, which is the page cited by the Petitioner for its incorrect proposed Finding of Fact. She had ample other opportunities to observe the Petitioner's written communication in addition to the notes he made of the May 2, 1989 meeting.

3. Rejected. The testimony by Ms. Hamby and the other evidence of communication problems is found credible and is accepted.

4. Accepted.

75-77 Rejected, as subordinate to the hearing officer's Findings of Fact on the subject matter and as not entirely supported by the preponderant, credible evidence of record.

1. Rejected, as contrary to the preponderant weight of the credible evidence.

2. Rejected, as to whether preponderant evidence supports the repetitive and dramatic nature of Ms. Love's conduct with regard to the subject matter of this proposed finding. Some of this proposed finding is true, but is not materially probative of any conspiracy or any racial discrimination on the part of Ms. Love, Mr. Simonson or the Board. In fact the tape recording of the meetings to which Ms. Love apparently acted in objection is probative of the lack of professionalism and poor communication with which the superintendent was concerned in ultimately reaching the employment decision he reached.

80-82 Rejected, as not entirely supported by the preponderant weight of the competent evidence of record and to some extent immaterial. Ms. Love was not the decision-maker here and these proposed findings, even if true, do not show any conspiracy or conspiratorial intent.

83 Rejected, as contrary to the preponderant weight of the evidence of record. Any intervention by Simonson was not shown to have been for the reason of thwarting the Petitioner's efforts as a manager of the school. There is no competent evidence to show whether any white principals had to endure insubordination on a consistent basis from an assistant nor is there competent evidence to support a finding that Ms. Love was actually insubordinate.

84-86 Rejected, as not entirely supported by the competent, credible evidence of record. These witnesses' testimony to some extent was colored by their hostility toward Ms. Love engendered by the disciplinary process for students and to some extent by their longtime loyalty to the Petitioner, due their close association within the school. Further, the 91 percent "agreement" or "strong agreement" that the Petitioner was "responsive to their needs" as teachers is not in itself a relevant fact.

1. Rejected. The comments were not made in terms of Ms. Love admitting to harboring racial prejudice. The remark was possibly an unfortunate choice of words uttered in a spirit of sarcasm, but were not intended and did not express racial prejudice. It is not deemed to be probative evidence of racial prejudice on the part of Ms. Love not is the statement to Michelle Ward, a white student, deemed to exhibit racial prejudice. The statement was not made in reference to the race of any individual or group, but instead was intended to get Ward to reconsider the group she was associating with in an attempt to decrease the discipline problems involving Ward.

2. Rejected, as not based on credible evidence.

3. Accepted in a general sense, except as to the characterization of "mass exodus", but rejected in that it is immaterial and irrelevant in terms of showing any conspiracy by Ms. Love and Mr. Simonson or that Ms. Love harbored any intentions or attitudes of racial discrimination. Evidence to this effect may just as easily indicate bias against Ms. Love on the part of the teachers who opposed her becoming principal.

4. Rejected, as a recitation of testimony and not a proposed finding of fact. Even if it were a proposed finding of fact, it is rejected as being unsubstantiated by preponderant evidence.

5. Rejected as to the truth of the first sentence. The Petitioner could have scheduled a meeting. The remainder of the proposed finding is accepted, but is not materially probative of the ultimate issues presented concerning racial discrimination on the part of Mr. Simonson, the Board or the existence of a conspiracy for this purpose by Ms. Stryker, Ms. Love or Mr. Simonson.

6. Accepted.

7. Rejected, as merely a characterization of testimony and not a proposed finding of fact.

94-95 Rejected, as being a recitation of allegedly conflicting testimony and not a proposed finding of fact. The third sentence is rejected as to its import. The testimony of other teachers does not show that that of Love and Stryker is not worthy of belief.

1. Accepted.

2. Accepted.

3. Accepted.

4. Rejected in favor of Mr. Simonson's testimony on this matter concerning Mr. Davidson, which is more credible.

5. Rejected in favor of Mr. Simonson's testimony on this matter concerning Mr. Davidson, which is more credible.

6. Rejected in favor of Mr. Simonson's testimony on this matter concerning Mr. Davidson, which is more credible.

7. Rejected in favor of Mr. Simonson's testimony on this matter concerning Mr. Davidson, which is more credible.

8. Accepted.

9. Accepted, but not materially dispositive of the ultimate issues. By Petitioner's own admission he was absent on leave on January 11 and it would not be likely that Ms. Love and Ms. Stryker would see him until the following day.

105-109 Accepted.

110-111 Accepted, but not in themselves probative of material issues.

Even if the Petitioner was the only experienced principal to be subjected to the QSAI does not mean that was for racially discriminatory reasons on the part of Simonson.

1. Rejected, as not in accordance with the preponderant weight of the credible evidence. Ms. Cochran's testimony is accepted.

2. Accepted.

3. Rejected, as not in accordance with the preponderant weight of the credible evidence.

4. Accepted.

5. Accepted.

6. Accepted.

7. Rejected, as incomplete as to the subject matter of the proposed finding. Mr. Simonson directed Ms. Hamby to do a fair, as well as a rigorous evaluation and directed her to assist Mr. Campbell in making improvements. Ms. Hamby's testimony is accepted as preponderant and credible in this regard.

8. Accepted.

9. Rejected, as subordinate to the hearing officer's Findings of Fact on this subject matter and as not entirely supported by the preponderant, credible evidence.

10. Accepted.

11. Rejected, as contrary to the weight of the preponderant, credible evidence.

123-124 Rejected, as contrary to the preponderant weight of the evidence.

1. Accepted, as to the occurrence of the meeting but not as to the material import of the last sentence.

2. Rejected, as to its purported material import because Ms. Hamby did not rate the Petitioner at satisfactory level in each area referenced in the proposed finding, even if she did note improvements in some of those areas.

3. Rejected, as not being entirely in accordance with the preponderant weight of the credible evidence. White principals were removed as principal and/or resigned under threat of being removed for poor performance. Some left the school system, some took administrative jobs which resulted within a year of them regaining their former salary. That does not mean these were not demotions.

4. The Petitioner was demoted in the sense that he was removed as principal, although he was offered another administrative job with equal salary without pay a reduction. The Petitioner refused that offer and it was at that point that he was reassigned as an assistant principal at a lower salary.

5. Accepted in terms of the dollar amount of the salary decrease.

6. There is insufficient evidence to establish whether his professional reputation has been damaged.

Respondents' Proposed Findings of Fact 1-9 Accepted.

1. Rejected, as subordinate to the hearing officer's Findings of Fact on this subject matter.

2. Accepted.

12-13 Accepted.

1. Accepted, in essence, but subordinate to the hearing officer's Findings of Fact on this subject matter.

2. Accepted.

16-27 Accepted.

1. Accepted, in essence, but subordinate to the hearing officer's Findings of Fact on this subject matter.

2. Accepted, but subordinate to the hearing officers' Findings of Fact on this subject matter.

30-32 Accepted.

1. Accepted.

2. Accepted.

35-41 Accepted.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Dana Baird, Esquire General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, FL 32303-4149

Richard E. Johnson, Esquire John C. Davis, Esquire SPRIGGS & JOHNSON

324 West College Avenue Tallahassee, FL 32301

D. Lloyd Monroe, IV, Esquire FULLER, JOHNSON & FARRELL, P.A.

111 North Calhoun Street Tallahassee, FL 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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

ELI CAMPBELL,

FCHR CASE No: 90-4462

Petitioner, EEOC Case No.: 15D900894 DOAH Case No.: 92-2473

v. FCHR ORDER No.: 94-037

BAY COUNTY PUBLIC SCHOOLS and JACK SIMONSON,

Respondents.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

APPEARANCES

For Petitioner: John C. Davis, Esquire

SPRIGGS & JOHNSON

324 West College Avenue Tallahassee, Florida 32301

For Respondents: William R. Mabile, III, Esquire

FULLER, JOHNSON & FARRELL, P.A.

111 North Calhoun Street Tallahassee, Florida 32301

Before Commissioners Whitfield Jenkins, Gerald Richman and Chriss Walker.

PRELIMINARY MATTERS

Petitioner, ELI CAMPBELL, filed a complaint of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01

- 760.10, Fla. Stat. (1991). In his complaint, Petitioner alleged that Respondents, BAY COUNTY SCHOOL BOARD and JACK SIMONSON, its superintendent of schools, had unlawfully discriminated against him on the basis of race (black) in demoting him from the position of principal at Rosenwald Middle School.

The allegations of discrimination were investigated and on August 5, 1991, the Executive Director issued a Determination: No Cause finding that based on the Commission's investigative evidence there was no reasonable cause to believe that an unlawful employment practice had occurred. Petitioner then filed a Request for Redetermination pursuant to the then applicable Commission rules of procedure, and on February 5, 1992 the Executive Director issued a Redetermination: No Cause.

Thereafter, on March 5, 1992, Petitioner filed a Petition for Relief from an Unlawful Employment Practice and his case was transferred to the Division of Administrative Hearings (DOAH) for an evidentiary hearing on the merits of the case. The hearings were held on November 12, 16-19, 23 and November 30, 1992; December 2-3, and December 18, 1992, before DOAH hearing officer P. MICHAEL RUFF.

On August 10, 1993, the hearing officer issued a Recommended Order finding that the Respondents had not committed an unlawful employment practice.

Thereafter, the case was transferred back to the Commission for deliberation and final agency action.

Public deliberations were held on April 22, 1994, in Tallahassee, Florida before this panel of Commissioners.

Adoption of Hearing Officer's Findings of Fact

We have considered the hearing officer's Recommended Order, the Exceptions filed by the Petitioner and the Respondents' Responsive Memorandum thereto.

Having considered the hearing officer's findings of fact, and being particularly mindful that the Commission may not reverse such findings, after a review of the complete record, unless there is substantial and competent record evidence that demonstrates that the hearing officer's "findings of fact were not based upon competent substantial evidence or that the procedures on which the findings were based did not comply with essential requirements of law. . . ." We are also extremely mindful of the fact that had this Panel of Commissioners been the trier of fact in this case, we may have reached a different result than did the hearing officer in this case. However, as noted by the First District Court of Appeal, where "the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other." Heifetz

v. Dept. of Professional Regulation, 475 So.2d 1277, 1282 (Fla. 1st DCA 1985). In light of the foregoing, and having reviewed the complete record, we therefore adopt the hearing officer's findings of fact and we expressly reject Petitioner's exceptions to the hearing officer's findings of fact.

CONCLUSIONS OF LAW

We agree with the hearing officer's analysis of the legal issues and conclusions of law based upon the relevant factual findings, except that, we grant Petitioner's exceptions to the hearing officer's application and interpretation of the "direct evidence" standard of proof as enunciated by the

U.S. Supreme Court in Price-Waterhosue v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989). In all other respects, we adopt the hearing officer's conclusions of law as being the correct application of the legal principles applicable to the facts of this case. Petitioner's exceptions to the hearings officer's Conclusions of Law are otherwise rejected.

Price-Waterhouse was a case involving a plaintiff who presented direct evidence of employer discrimination. Petitioner herein, like the plaintiff in Price Waterhouse, alleged that he had presented direct credible evidence of employer discrimination. As a general rule, such evidence will consist of a statement or written document showing discriminatory motive on its face, and if the trier of fact accepts the testimony presented by the petitioner, then the ultimate issue of discrimination has been proved. In such cases, the Respondents can counter such direct evidence only by showing by a preponderance of the evidence that they would have acted as they did without regard to the Petitioner's race. Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990), citing

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1984) and Guillory

v. St. Landry Parish Police Jury, 802 F.2d 822, 824 (5th Cir. 1986). If the Respondent establishes by a preponderance of the evidence that it would have made the same decision even absent the presence of an unconstitutional motive, then the Petitioner must show that the Respondent's reasons are pretextual. Thompkins v. Morris Brown College, 752 F.2d 558, n. 16, page 564.

In Price Waterhouse v. Hopkins, 109 S. Ct., at 1791, the Court held that: "Remarks at work that are based on sex [racial] stereotypes do not inevitably prove that gender [race] played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender [his race] in making its decision.

Price Waterhouse does not define direct evidence and the issue of whether a plaintiff or petitioner has presented direct evidence is not always entirely clear. However, in her Price Waterhouse concurrence, Justice O'Connor stated:

'[S]tray remarks in the workplace,' and 'statements by decisionmakers unrelated to the decisional process itself' do not 'justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria.' Price Waterhouse, 109 S.Ct. at 1804, cited at, EEOC v. Alton Packan: Corp., 901 F.2d 920, 924 (11th Cir. 1990).

In Alton, the Eleventh Circuit held that in a direct evidence, or mixed- motive case, the plaintiff must "produce direct testimony that the employer acted with discriminatory motive, and must convince the trier of fact to accept the testimony." Alton, 901 F.2d at 923.

A review of the relevant case law shows that Petitioner's exceptions to the Hearing Officer's application and interpretation of Price Waterhouse are well- founded. In our view of controlling federal case law, including Price- Waterhouse and its progeny involving direct evidence of discrimination (i.e., "mixed motive cases"), should be analyzed as follows to determine whether a Petitioner has established a prima facie case:

1. Whether the Petitioner presented evidence of discriminatory intent in the form of remarks, actions or statements reflecting a discriminatory attitude;

   
   

2. If so, were such statements made by a "decisionmaker" and related to the decisional process itself, and

   
   

3. Whether the Hearing Officer (the trier of fact) believed the Petitioner's proferred direct evidence of discrimination.

Neither Price Waterhouse, nor any of the other cases cited in the Recommended Order, require that direct evidence of discrimination be established by showing "contempt or hostility towards blacks, as a race or toward the Petitioner as a black person in particular" in order for remarks or statements which reflect a discriminatory attitude to be found to evince a discriminatory attitude, motive or animus. This standard of proof, as articulated by the hearing officer, is not in accord with the applicable law as to a petitioner's

burden of proof in a case where direct evidence is sought to be used to establish a case of discrimination. [Hearing Officer's Conclusions of Law, paragraph 42.]

The record evidence established that the statements attributed to Respondent SIMONSON were essentially undisputed, and it was not disputed that SIMONSON was the decisionmaker as to Petitioner's demotion. However, what was disputed was: (a) Whether the statements reflected a discriminatory attitude related to the employment action in question, and (b) Whether the Hearing Officer believed the Petitioner's proffered evidence of discrimination.

During the May 2 meeting and in his August 1 memorandum to the Petitioner, Respondent SIMONSON variously "called Petitioner a 'black racist,' and told him that 'not all racists are white' that he [Petitioner] was 'operating a black school,' that he had a 'racist curriculum.'" (Petitioner's Exceptions to Hearing Officer's Conclusions of Law, page 51, paragraph 122.) In addition, SIMONSON gave a speech at a Lions Club meeting on May 3 in which he discussed his desire to close the Rosenwald school, but was prevented from doing so by a federal court order; his feelings regarding the Martin Luther King, Jr. holiday; and his objection to a federal court finding that the Bay County schools were segregated in 1970 and that he was not going to rape other schools to comply with the federal court consent decree.

The Hearing Officer found that the remarks made by Respondent SIMONSON during the Lions Club speech:

[D]id not express any contempt, hostility, or a discriminatory animus towards blacks as a race or toward any blacks, including the Petitioner, in particular." . . . .

"[N]or do they constitute direct evidence of racial discrimination because of the substance of the statements themselves, and the context in which they were made clearly shows that Mr. Simonson did not intend to express nor to mean by the statements any verbal act of hostility or discriminatory attitude, motive, or animus directed toward any individual because of his or her

race, or to any group, because of the racial makeup of that group.

Hearing Officer's Recommended Order, paragraph 33, pages 25-26.

The hearing officer's conclusion, to the extent that he expresses a legal conclusion that the statements proffered by the petitioner did not establish direct evidence of discrimination because they "did not express any contempt, hostility, or discriminatory animus towards blacks as a race or toward any blacks, including the Petitioner, in particular", is hereby rejected. The hearing officer's limitations on the standards to be applied in determining whether a petitioner has presented direct evidence of discrimination is much more restrictive than that articulated in the controlling cases as cited herein.

However, although the hearing officer misinterpreted the law as set forth in Price Waterhouse and the other cases cited on the "direct evidence" standard of proof, it is clear that he found that even if the Petitioner presented direct

evidence in the form of statements or remarks by a decisionmaker, the hearing officer concluded that such remarks did not express a "discriminatory attitude." The Hearing Officer reasoned that "[d]irect evidence of discrimination is evidence which proves the existence of the fact in issue without inference or presumption being necessary." He further concluded that as fact finder, the evidence presented by petitioner required inferences or presumptions to establish the issue of discriminatory attitude. 1/

On the issue regarding the absence of discriminatory motive, and other issues affecting the weight of the evidence and the credibility of the witnesses, the Hearing Officer resolved the conflicts in favor of the Respondent. In regards to the direct evidence presented by Petitioner, the Hearing Officer found such evidence not to be credible. In other words, despite the fact that the Hearing Officer found that the statements were made by Respondent Simonson, he did not believe that such statements constituted evidence of a "discriminatory attitude." In fact, the Hearing Officer concluded that "[t]he gravamen and tenor of the remarks made by Mr. Simonson were clearly to the effect that he would not tolerate racism of any kind perpetrated by any person and expressed a particular concern that no student should be made to feel embarrassed on account of his race." Hearing Officer's Recommended Order, paragraph 33, page 26.

Once the Hearing Officer concluded that the statements or remarks made by the Respondent decisionmaker did not evince a discriminatory attitude, it was not necessary for the Hearing Officer to resolve the issue of shifting the burden of proof to the Respondent. The burden of proof does not shift to the Respondent to establish that its employment decision was based on legitimate criteria where, as in the case before us, the Petitioner failed to establish a prima facie case of discrimination through the presentation of direct credible evidence. See: Price Waterhouse, supra.

DISMISSAL

For all of the foregoing reasons, and having adopted the Recommended Order of the DOAH hearing officer except as expressly modified herein, the Petition for Relief from an Unlawful Employment Practice and the Complaint of Discrimination are hereby DISMISSED with prejudice.

DONE AND ORDERED this 11th day of May, 1994. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Whitfield Jenkins, Panel Chairperson Commissioner Gerald Richman, Panel Member

Commissioner Chriss WALKER, concurring.

I concur in the panel decision only because of the limited scope of our review under Section 120.57(1)(b)(l0), Florida Statutes, which compels us to not disturb the hearing officer's findings of fact. The hearing officer found as a fact that the superintendent's actions and ultimate decision to demote Campbell was not a product of intentional discrimination. Although I view the hearing officer's finding that there was no "direct evidence" of discrimination to be very suspect, particularly in light of what I believe to be overwhelming

evidence that the demotion decision was, at least in part, racially motivated, I am nevertheless unable to state that the hearing officer's findings of fact are not based upon "competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law." It is my firm belief that had I been the trier of fact, and based solely on the record before us, I would have reached a different result than did the hearing officer.

NOTICE

The parties are hereby advised that either party may seek judicial review of this final agency order by the timely filing of a notice of appeal. To be timely filed, such notice of appeal must be filed with the appropriate Florida District Court of Appeal within thirty (30) days of the date that this final order is filed with the Clerk of the Commission. A detailed explanation of the right to appeal is set forth in Section 120.68, Florida Statutes and in Rule 9.110, Florida Rules of Appellate Procedure.

FILED this 12th day of May, 1994, in Tallahassee, Leon County, Florida.

Sharon Moultry

Clerk of the Commission

ENDNOTE

1/ The hearing officer cited as authority for the definition of "direct evidence" the cases of Al Hashimi v. Scott, 765 F.Supp 1567 (S.D. La. 1991); and Thomkins v. Morris Brown College, 752 F.2d 558, 563 (11th Cir. 1985).

Copies of the foregoing final order were forwarded via United States Mail postage prepaid or hand-delivered to the persons/parties named hereinbelow:

JOHN C. DAVIS, ESQUIRE WILLIAM R. MABILE, III, ESQUIRE SPRIGGS & JOHNSON FULLER, JOHNSON & FARRELL, P. A.

1. West College Avenue 111 North Calhoun Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 [Counsel for Petitioner] [Counsel for Respondents]

   
   

   HARRY L. LAMB, JR. Honorable P. MICHAEL RUFF

   Florida Comm. Human Rel. Hearing Officer

   Suite 240, Building F Division of Administrative Hearings

2. John Knox Road 1230 Apalachee Parkway Tallahassee, Florida 32303 Tallahassee, Florida 32303 [Legal Adviser to Commission [DOAH Hearing Officer] Panel]

Docket for Case No: 92-002473

Orders for Case No: 92-002473