STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HART SPILLER,
Petitioner,
vs.
ALACHUA COUNTY SCHOOL BOARD,
Respondent.
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) Case No. 02-0065
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RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held in this case before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings, on March 13-14, 2002, in Gainesville, Florida.
APPEARANCES
For Petitioner: Hart Spiller, pro se
3414 Northwest 46 Place
Gainesville, Florida 32605
For Respondent: James F. Lang, Esquire
Chandler, Lang, Haswell & Cole, P.A. Post Office Box 23879
Gainesville, Florida 32602-3879 STATEMENT OF THE ISSUE
Whether one or more unlawful employment practices have been committed against Petitioner by Respondent on the basis of what is commonly called "reverse racial discrimination," as a result of Petitioner's national origin (German), or in retaliation.
PRELIMINARY STATEMENT
The Petition for Relief from an Unlawful Employment Practice was referred to the Division of Administrative Hearings on or about January 7, 2002, by the Florida Commission on Human Relations, following the Commission's Determination: No Cause.
The course of discovery is clear on the record.
At the final disputed-fact hearing, Petitioner presented the oral testimony of Charles Hall, Louise Hall, Sandy Hollinger, Delores Utley, Susan H. Arnold, and Betty J. Wilson. Petitioner also testified on his own behalf and offered Exhibits P1 through P-20 in evidence. Only P-8 was not admitted. P-16 is an attachment to P-10. Respondent presented the oral testimony of K.S., Leila Pratt, and Drew Stone. Respondent had three exhibits admitted in evidence.
Petitioner desired to present the testimony of one additional witness whom he had not subpoenaed. With Respondent's agreement, an Order was entered giving Petitioner until April 3, 2002, to take, have transcribed, and file the deposition of Elder Jesse Brown. Petitioner met this deadline and the deposition is now deemed Exhibit P-20. The evidentiary record closed on April 3, 2002.
No transcript of the disputed-fact hearing was provided.
Subsequent to the disputed-fact hearing, Petitioner has filed numerous letters and motions, upon which orders have been entered as reflected in the case file.
Only the material designated by Petitioner as his Proposed Recommended Order and filed with the Division on April 15, 2002, has been considered as his Proposed Recommended Order. It has been considered even though it does not comply with the rules of the Division or the Post-hearing Order. Respondent's Proposed Recommended Order, also timely-filed, has likewise been considered.
FINDINGS OF FACT
Respondent is the Alachua County School Board and constitutes an "employer" under Chapter 760, Florida Statutes.
Petitioner is a white male, born in Germany, but living in the United States. He is "not yet" a United States citizen. He does not have, and never has had, a contract of employment with Respondent.
Petitioner holds a B.S. in Elementary Education, an M.S. in Biology/Chemistry Education, and a Ph.D. in Natural Sciences from foreign universities. He has teaching certificates from Germany and Australia and has taught with distinction in New Guinea. He has worked in scientific fields at the University of Florida and has published scientific papers.
Petitioner was issued a Florida temporary educator's (teaching) certificate for "Grades 6-12 Biology, Chemistry, and Physics" on February 4, 1998, covering July 1, 1997 to June 30, 1999, which was renewed through June 30, 2002.
However, to receive a permanent professional educator (teaching) certificate, Petitioner needed to meet the general requirements and specific subject requirements listed on the statement of eligibility, including completing the Building Excellence Through Successful Teaching Program. Apparently, he completed the necessary requirements for a permanent professional educator's license, including a year of observed teaching in Indian River County, during the 2000-2001 school year.
Once determined to be subject-area qualified, Petitioner was added to Respondent School Board's district-wide substitute teacher list, beginning with the 1998-1999 school year. All Alachua County public schools have access to this list. It is up to each school's principal or the principal's designee to telephone names on the list until a substitute for a specific teacher's absence is located and agrees to come. Persons on the list are not guaranteed any days of employment and principals individually can choose among available substitutes at will.
As a substitute teacher, Petitioner did not have a contract of employment with Respondent. Therefore, he was not protected by the specific due process investigation and hearing
rights afforded by such contracts or by a union collective bargaining contract.
Respondent's teaching job applications do not request information about national origin. Therefore, anyone reviewing one of Petitioner's job applications would not know his national origin. Even if Petitioner listed his foreign degrees and universities, that would not clearly delineate his nationality.
Petitioner understands English well, but not perfectly.
He speaks with a pronounced accent, and it is unlikely anyone meeting him would assume him to be a native-born American.
On August 13, 1998, Petitioner wrote a letter to Respondent's Superintendent Mazarra, a white male, outlining his extensive teaching and educational administrative experience in New Guinea and Australia, his experience as a soccer coach and a Boy Scout leader, his Florida existing credentials (see Findings of Fact 3-4), his past scientific employments and publications, the several languages he speaks, and his foreign degrees. The letter went on to complain (1) that he had not been hired in Alachua County in 1997 to teach high school chemistry because he did not have the Florida experience; (2) that when he reapplied in February-March 1998, for one Alachua County school's advertised science opening, after having completed some Florida requirements and after having taught in Gilchrist County, the Alachua County school's position had been filled with a
"permanent substitute usually a non-certified teacher"; (3) that when he interviewed for a chemistry/physics position, the administrator (i.e. principal) did not show up and had to be searched for by the receptionist; and (4) that he had written letters to principals to which they did not respond.
Petitioner's letter to Mr. Mazarra received no response, but apparently was placed in either Petitioner's Alachua County Substitute Teacher File or Personnel File, or in both. There is no clarity as to which file.
Petitioner had admitted in evidence a tape recorded phone message he received on his telephone answering machine on or about October 15, 1998. (P-15).1 It is found that on October 15, 1998, Petitioner was telephoned by a female on the Santa Fe High School staff who requested that Petitioner return her call if he could substitute at that school the next day.
The same answering machine tape also contains requests from other Alachua County schools for Petitioner to come in to substitute.
Apparently, the receiver was not fully hung-up at Santa Fe's end, and Petitioner's answering machine recorded the female speaker reading a long list of all the subject areas in which Petitioner had listed himself as available to teach. The subjects ranged from teaching physics to acting as a soccer coach and generally parallels Petitioner's August 13, 1998, letter. A
male voice in the background laughed and said "Aborigines," probably in reference to Petitioner's Australian credentials. Petitioner takes offense that there was laughter and that the man laughing did not appreciate that Petitioner had not taught Australian Aborigines, but another ethnic group. The laughing male could as easily have been a student as a member of the
Santa Fe faculty or administrative staff, but he was certainly not the female staff member calling Petitioner to substitute the next day.
Petitioner feels his April 13, 1998, letter gave rise to the laughter and comments on the October 15, 1998, Santa Fe phone call attempting to hire him.
Petitioner feels his April 13, 1998, letter caused him to be discriminated against as "over-qualified" from 1997 to the present.
K.S., a black female student, testified at formal hearing that on October 20, 1998, while Petitioner was substituting in her classroom at Fort Clarke Middle School (Ft. Clarke), she asked Petitioner for a pass to go to the bathroom, having failed to go during the change of classes. This request was made during the confusion of taking attendance and settling the class down to work. Petitioner denied her request. She also testified that when she made a second request a short time later,
Petitioner grabbed her by the arm and told her to go back to her seat, calling her a "little black chicken."
Petitioner admitted that he believed K.S. should have used the restroom between classes on October 20, 1998, and that he had a general policy at that time of denying or delaying students' requests to go to the bathroom because there had been newspaper and other reports that students were having sexual relations in school lavatories. However, he emphatically denied that the second request and denial described by K.S. ever took place.
Petitioner presented evidence and character witnesses to demonstrate that he has close personal friends of many races and has taught many races and nationalities all over the world. Petitioner personally finds racial epithets and slurs of any kind abhorrent. At the time of the disputed-fact hearing, Petitioner was attending and teaching in a multi-racial church. His character witnesses rate him as non-violent and unlikely to grab females of any age.
Prior to October 20, 1998, Petitioner had substituted for Ms. Jones, an English teacher at Ft. Clarke, to whom he had written a letter. His statements therein with regard to student deportment may be read as critical of her methods and her students. They reflect Petitioner's very rigid approach at that time to classroom interactions and an inability to keep children
on task if a seating chart was not provided by the regular classroom teacher.
Contrary to Petitioner's perception, it was, in fact, the policy at Ft. Clarke not to deny children the use of the restroom. Ft. Clarke left it to the individual teacher's discretion when, and for how long, s/he let children be out of class for that function. Most teachers used a hall pass method of control.
The Alachua County teachers and administrators who testified agreed that letting more than one student go to the restroom simultaneously was not good classroom management, but that a single student should not be required to wait an entire class period. "Sex appointments" in Ft. Clarke's restrooms were not a problem in 1998.
The situation K.S. described at hearing is basically the situation she and her parents complained-of to Ft. Clarke School personnel by telephone after school hours on October 20, 1998, and in person at the school on October 21, 1998.
Charles Hall, Ph.D., was Principal of Ft. Clarke in 1998-1999. Dr. Hall is a black male. He assigned the investigation of the complaint to his white female Assistant Principal, Delores Utley.
If a full-time contract teacher is accused by a student, a more formal investigation ensues and under certain
conditions, after the investigation is complete, a contract teacher is given the opportunity to place his or her written explanation/defense in his/her Personnel File with the investigation report. See Section 231.291, Florida Statutes. In some instances, there also is a formal procedure with clearly established due process rights and a formal hearing with confrontation of witnesses and representation. These protections are not generally afforded by Alachua County to its substitute teachers, because they have no "property rights" to a specific teaching position.
On October 21, 1998, Delores Utley separately interviewed K.S. and several students from the class. As might be expected, some students did not see the incident and some did not hear the racial epithet, but at least two students from K.S.'s class confirmed her version of the incident. Ms. Utley found K.S. and all the students credible because K.S. admitted there had been some misbehavior going on in the class when the incident occurred and because the children's stories were not identical, although she ultimately reported in a letter to the School Board's Human Resources Office (see Finding of Fact 31) that the alleged comment by Petitioner was "little black turkey."2
Ms. Utley made some other inquiries and observed Petitioner's empty classroom to be in disarray. She decided Petitioner should be removed from the Board's substitute teacher
list, in part because of the state of the classroom which evidenced, to her, that his class was out of control. Petitioner was never approached by anyone about those additional charges.
Sometime on October 21 or October 22, 1998, Ms. Utley telephoned her decision to Ms. Louise Hall, Personnel Specialist in the School Board's Human Resources Division, who told her to write up her recommendation. Ms. Hall, a white female, is no relation to Dr. Hall, Ft. Clarke's Principal.
At no time did Ms. Utley require that K.S. or her parents fill out an incident form. Petitioner claimed that this was required by Respondent School Board's rules, but he did not present the rule upon which he relied.
Principal Hall was aware of Ms. Utley's investigation and conclusions, but may not have read her letter (see Finding of Fact 31) when he met with Petitioner. Their meeting probably occurred on the morning of October 22, 1998, but could have been on October 21, 1998. Neither man's recollection of the date or contents of this conversation is very clear. Petitioner did not appreciate the seriousness of the charges at the time, but he feels he denied them. Dr. Hall felt Petitioner was a very nice man but that Petitioner had offered no explanation of the alleged incident and spent their interview showing Dr. Hall pictures of Petitioner's travels.
Dr. Hall did recall that after his interview with Petitioner some students complained to him that Petitioner had called them "idiots." Petitioner was never approached by
Dr. Hall about these additional charges.
On October 22, 1998, Ms. Utley wrote a letter to Louise Hall, which stated in whole":
This is to inform you of an incident involving a substitute teacher [Petitioner] which occurred at Fort Clarke Middle School on Tuesday, October 20, 1998. I received a phone call at approximately 4:00 p.m., on October 20th from S.S., mother of K., a. 7th grade student at Ft. Clark Middle School.
S.S. said that K. was very upset when she came in from school and reported that a substitute teacher had grabbed her and called her a name. I asked Mrs. S. if she could give me specific details about what had happened. Mrs. S. explained that the incident occurred in K.'s 7th period Math class. The substitute teacher's name was [Petitioner]. K. had told her that she asked the teacher for permission to use the restroom and was told no. When she went to the teacher and asked a second time he grabbed her by the arm and said, "I told you no, now sit down you 'black Turkey'".
I told Mrs. S. her call was the first I had heard of a problem in that class, but that what she reported was unacceptable. We would not tolerate a substitute touching a child or referring to her in a derogatory manner. I said that [Petitioner] would be removed from Ft. Clarke's substitute list and I would call personnel and recommend he be removed from the district list.
After speaking with Mrs. S., I was informed by Mr. Emery Bishop, assistant principal for administration, that the
custodian had reported that the room was left with paper and calculators strewn all over the floor and desks scattered around the room. [Petitioner], the substitute, had not reported any problems or discussed any concerns with administrative staff at anytime during that day.
The following morning, K.S., K's father, came to my office concerned about the incident. He wanted to be sure that it had not been ignored and that action would be taken. I explained that we had removed [Petitioner] from our list and had made a recommendation to the district office for his removal from the substitute list. He asked that I contact him when I had heard from the district about the final resolution. On Thursday, October 22, 1998, I called Mr. S. to tell him that [Petitioner] would no longer be allowed to substitute in district schools. He was satisfied that action had been taken and thanked me for keeping him informed and following through on his concerns.
Since the reporting of this incidence [sic.], several students have spoken with Dr. Charles Hall, principal of Ft. Clarke, about [Petitioner] calling them "idiots" during their math classes. These incidences [sic.] took place throughout the day in
different classes. (Initials used to protect the child and "Petitioner" used in place of Petitioner's full name for clarity) (P-9.)3
Ms. Utley initially had considered just removing Petitioner's name from Ft. Clarke's substitute call sheet, but prepared the letter to Louise Hall to remove him from the School Board's master list due to Ms. Hall's request for documentation when they had spoken by phone.
Dr. Hall allowed Ms. Utley's letter to go to Louise Hall after he had telephoned Ms. Hall.
Neither Ms. Utley, Dr. Hall or Ms. Hall considered Ms. Utley's letter to be a request for a full-scale Human Resources Office investigation in October 1998.
The following are among published School Board policies applicable to substitute teachers:
PROFESSIONAL ETHICS
Maintain a professional attitude at all times. Refrain from criticizing teachers for whom you substitute and making uncomplimentary comparisons between schools and students. It is important to keep information regarding school, personnel, and pupils confidential.
REMOVAL FROM SUBSTITUTE TEACHER LIST
Failure to comply with the state, county or school policies and procedures.
Unsatisfactory teaching performances.
Excessive failure to accept assignments.
Use of corporal punishment.
Use of drugs or alcohol on school properties.
Use of profane or obscene language on school properties.
Failure to perform teaching duties in a professional manner.
Failure to complete and return update form concerning availability. (R-2)
On October 22, 1998, Ms. Hall wrote to Petitioner on behalf of her then-superior, Synester Jones, Human Resources Director, who is a black female, as follows:
On October 21, 1998, we received a call from an administrator at Ft. Clarke Middle School who informed us of an incident that had been reported by a female student and the student's parents. An investigation of the incident by the school revealed that during class, the student requested to go to the restroom twice and that you denied both requests. After the second request, it was reported that you grabbed the student's arm, told her she could not go to the restroom, and called her a name that implied a racial slur.
After a review of this incident, we have concluded that this behavior is not conducive to a positive learning environment for students and therefore, effective immediately, your name has been removed from the substitute list. (P-2.)
Ms. Hall testified that she placed a copy of both her letter and Ms. Utley's letter in Petitioner's Substitute Teacher File and/or Personnel File. She maintained that this file or these files (there is no clarity if they are one or two files) is/are not the same file as Petitioner's "Active Applicant" file for purposes of hiring full-time teachers.
Ms. Hall, in fact, removed Petitioner from Respondent Board's substitute teacher list on behalf of her superior.
Ms. Hall did not remove Petitioner from the list of applicants applying for full-time teaching positions.
Petitioner testified he never saw Ms. Utley's letter until after filing the charge of discrimination.
Petitioner now believes that Ms. Utley's and Ms. Hall's letters made their way to his Active Applicant's file, and at hearing, he contended they were a deterrent to his being hired as a full-time teacher in Alachua County.
On October 28, 1998, and November 17, 1998, Petitioner wrote Superintendent Mazarra, seeking an independent investigation of the October 20-22, 1998, charges by K.S. and her parents. Superintendent Mazarra did not answer Petitioner.
On December 30, 1998, Synester Jones answered Petitioner, on behalf of the Superintendent, stating:
I am in receipt of the letters you wrote to the Superintendent in reference to the termination of your employment as a substitute teacher. We very much regret the necessity to terminate the employment of any substitute teacher in the public schools of Alachua County. However, our first and foremost responsibility is to the students of this district. Whenever, [sic] a student and/or parents report incidents that may be harmful to students, immediate action must be taken. Administrators from Fort Clarke Middle School met with the student, her parents, as well as other students from the class, and they were convinced that there was probable cause to be concerned about the conduct of the substitute in charge.
As a substitute, you were a temporary "on-call" employee, and the school district did not have an obligation to conduct a full- scale investigation into complaints about your job performance or continue your
employment after concerns had been reported. The actions taken in this incident were consistent with past practice. Neither
Ms. Hall nor any other Human Resources Department staff members have discriminated against you in any manner.
I apologize for any misunderstandings about the nature of your employment with the school district. (P-6.)
No investigation was forthcoming.
On January 25, 1999, Petitioner sent a letter and affidavit (P-10 and P-16) to Superintendent Mazarra, requesting a conference. After receiving no reply Petitioner filed his charge of discrimination with the Florida Commission on Human Relations on or about April 10, 1999.4
Petitioner thereafter also directly approached School Board and County Commission members for redress.
Petitioner claims that none of his protests about the October 20, 1998, incident and its handling were placed in his Personnel File but that the Utley and Holmes letters were, and that these letters precluded his being hired for any full-time teaching positions. Petitioner admitted that he has only assumed the foregoing to be true. Ms. Pratt, currently Human Resources Director, could not say with any certainty whether the Utley and Holmes letters and Petitioner's letters were located in a "complaint file," which is an extension of Petitioner's Personnel File, or not. If Petitioner's situation at Ft. Clarke had
resulted in a formal complaint against him, which in turn had resulted in an investigation by the Human Resources Office, everything would have gone in Petitioner's Personnel File, but in this case, she was not sure. There is also a separate file for teaching applications which is purged after one year. There is simply no clarity on this issue of the files.
Petitioner also contends that he was not hired as a full-time teacher in any Alachua County school due to the prejudicial effect of the Utley and Hall letters and/or as a result of discrimination against him due to his national origin (German), race (Caucasian), and/or in retaliation for the letters he wrote protesting his treatment with regard to the October 20, 1998, incident and/or the August 13, 1998, letter complaining about failure to hire him.5
Normally, a principal with a teaching vacancy calls the Board for a list of eligible full-time teaching position applicants and then directly contacts the applicants in whom the principal is interested. These contacts would show up in the Respondent's tracking device, established in 1998. However, applications before 1998 were not tracked, and if Petitioner went on an unstructured (informal, unscheduled, or not-through-regular channels) interview after 1998, it would not show up in the tracking device.
In May 1998, Petitioner applied for a science teacher position at Gainesville High School. Petitioner was interviewed in June 1998, by Gainesville High School Assistant Principal Susan H. Arnold, a white female. Ms. Arnold testified that she had been seeking someone with a knowledge and understanding of physics who would have a rapport with students conducive to learning. She would have liked to hire someone certified in the subject area. She testified that she did not find her interview with Petitioner to be memorable. She was clear that neither his race or national origin had anything to do with her decision not to hire him; that she was not pressured by anyone not to hire him; and that she knew of no conspiracy to hire African- Americans. Instead of Petitioner, Ms. Arnold hired Sarah Poulos, who also was a white female, because she felt Ms. Poulos had the best mix of qualifications. She emphasized that Ms. Poulos had already taught for a year and she had observed Ms. Poulos teaching. At the time she hired Ms. Poulos, Ms. Arnold believed her to be certified in physics.
Petitioner produced a School Board document showing that Ms. Poulos was not certified in physics when she was approved for hire at Gainesville High School by the School Board on August 17, 1998. She was approved by special appointment "out-of-field." Out-of-field hires are not unusual. Teachers hired out of field have to be certified in some other subject and
have a limited time to become certified in the additional subject area in which they are hired.
Dr. Hall became principal of Gainesville High School after Ms. Poulos was hired there by Ms. Arnold. He was at Ft. Clarke Middle School in May-August 1998.
All of Petitioner's involvement with Ms. Arnold and Gainesville High School occurred prior to his August 13, 1998, letter to Superintendent Mazarra and, although the School Board approval of Ms. Arnold's hiring of Ms. Poulos post-dated that letter, Ms. Poulos was hired well before the October 20-22, 1998, Ft. Clarke incident and Petitioner's April 10, 1999, charge of discrimination.
Petitioner testified that he drove to Hawthorne High School to apply for a teaching job posted on the School Board's web site; that when the black principal saw him, the principal removed the paper job description from a bulletin board in the school; and that when Petitioner returned to the Human Resources Office, a woman told him the Hawthorne teaching position was still open. Petitioner was not specific when this alleged series of events occurred, and there was credible testimony that the web site lags behind actual hirings.
Leila Pratt, Respondent's current Human Resources Director, had assembled business records of the School Board which she summarized in reply to the Florida Commission on Human
Relations' investigation of Petitioner's April 10, 1999, charge. At the disputed-fact hearing herein, she testified from this summary 6 that between 1997 and 1999, Petitioner had three times applied to Hawthorne High School and that, sequentially, Hawthorne had hired a white female with appropriate certification who had four years of teaching in Alachua County schools at the time of hire; had hired another white female with appropriate certification who had four years of teaching in Alachua County schools; and had hired a black female with appropriate certification and three years of teaching experience, one year of which had been in Alachua County schools.
On February 26, 1999, prior to his charge of discrimination, but after he had been removed from the public school substitute list for cause, Petitioner was interviewed for a substitute teaching job at PACE, a center for troubled girls in Alachua County. He testified that after telephoning Respondent School Board's Offices, the PACE interviewer asked Petitioner to leave; told him "it is with the School Board now"; and declined to tell him what she had learned during the telephone call. Petitioner maintains that PACE is not a county public school or required to use its substitute list and assumed that Respondent prevented his being hired as a private school substitute.
One Alachua County public school principal inadvertently hired Petitioner to substitute teach on April 19,
1999, without realizing he had been removed from Respondent School Board's substitute teacher list on October 22, 1998. Because Petitioner, in fact, taught that day, his record was reactivated long enough for the School Board to cut him a paycheck for the time he actually worked. Then his name was immediately removed from the substitute teaching list.
Petitioner testified that he interviewed in mid-July 2001, for a science teacher position with Principal of Eastside High School Sandy Hollinger, a white female. Ms. Hollinger testified that she did not look at any of Petitioner's files with Respondent School Board or talk to anyone at the School Board Offices about him. On an average, Ms. Hollinger interviews 20 people a year. She had interviewed throughout the previous school year and into the summer. She was searching for a teacher to work with "at risk students." In her view, teacher certification is just an entry level qualification. She remembered her interview with Petitioner to be congenial and stated that Petitioner had a nice portfolio. However, he had indicated that in the past he had played the harmonica so as to bond with children, and she felt that would be an ineffective "intervention" strategy for dealing with "at risk" students.
Petitioner presented an August 8, 2001, rejection letter showing Eastside High School had filled a biology teaching position with someone other than himself. He presented no name
or evidence of the race, national origin, or qualifications of the person hired. According to Ms. Pratt, between 1997 and 1999, Ms. Higgins, a white female with appropriate certification and six years of teaching experience in Alachua County, was hired instead of Petitioner to teach biology. Also, a white male,
Mr. Passaro, with one year of teaching experience in Alachua County, was hired to teach chemistry instead of Petitioner. Ms. Hollinger believed she hired Mr. Passaro for the biology position for which Petitioner interviewed in July 2001.
Petitioner interviewed at Newberry High School for a general science position and claimed that the person already teaching there was not certified. He presented no dates he interviewed or corroboration that the person then teaching was not certified. According to Ms. Pratt, between 1997 and 1999, Petitioner applied twice to Newberry High School for a general science teacher position. Both times, other white males with appropriate certification were hired. One man had one year of teaching in Alachua County. The other man had taught 20 years, four of which were in Alachua County schools.
All the educators who testified mentioned that graduate degrees and publications do not guarantee that a candidate will make a good teacher or fit the style or student body of a particular school.
Petitioner maintained that he had no problem being hired in counties other than Alachua and alleged a variety of damages for Alachua County's failure to hire him.
Indeed, Petitioner has been employed as a teacher in other counties for the greater part of the interim period from October 20, 1998, to the present. In March 1999, Petitioner taught in Marion County until the end of that school year, filling in for a full-time teacher who was on maternity leave. He did not apply to teach there for the 1999-2000 school year.
In the fall of 1999, Petitioner was employed to teach physics and integrated science in Palm Beach County. He resigned at the end of the first quarter. He taught as a science teacher in Indian River County for the full 2000-2001 school year. (See Finding of Fact 5).
Although Petitioner's foregoing employments in other school districts suggest that he met those other School Boards' respective needs and was the most qualified applicant who applied in those counties at those respective times, they do not prove discrimination against Petitioner by the Alachua County School Board, because they do not compare him to the other applicants applying to the Alachua County School Board or to that Board's needs at any specific time.
Petitioner's foregoing employments in other counties from March 1999 to June 1999, from September 1999 to January or
February 2000, and from September 2000 to June 2001, demonstrate that he would not have been able to accept, during these periods, a full-time teaching position in Alachua County to cover those periods, without dishonoring those commitments. Further, these other employments mitigate his claim for lost wages during those periods.
Petitioner and Respondent have each devoted a great deal of hearing time and space in their Proposed Recommended Orders to Petitioner's employment during the fall semester of 1997-1998, at Trenton High School, Gilchrist County. However, Petitioner's problems with Gilchrist County (i.e., whether his contract was cancelled in December 1997, due to lack of funding or because he was a poor classroom manager) are not part of the instant case. Gilchrist County is a different employer than the one at bar and the Florida Commission on Human Relations has never had an opportunity to consider a charge of discrimination against it. Likewise, the Trenton High School principal was never contacted at any time material to the instant discrimination charge/Petition against this employer by anyone associated with the Alachua County Schools concerning Petitioner. Therefore, neither employment entity was influenced by the other, and Petitioner's entire episode at Trenton High School is irrelevant to these proceedings.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), and Chapter 760, Florida Statutes.
Petitioner's charge/Petition originally alleged that he was not hired as a full-time teacher and was removed from the substitute teacher list as a result of discrimination against him due to (1) his national origin-German; (2) his race- white/Caucasian; and (3) retaliation due to his August 13, 1998, letter complaining that he was being treated disparately for the first two reasons. He has been permitted to include, at hearing, allegations that his post-October 22, 1998, protests and the April 10, 1999, charge of discrimination to the Florida Commission on Human Relations resulted in subsequent retaliation.
Under the provisions of Section 760.10, Florida Statutes, it is an unlawful employment for an employer:
(1)(a) . . . to discharge or to fail or refuse to hire an individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
* * *
(7) . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person
has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
The United States Supreme Court set forth the procedure essential for establishing claims of discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792 93 S. Ct. 1817, 36 L. Ed 2d 668 (1973), which was then revisited in detail in Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 101
S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which, once established, raises a presumption that the employer discriminated against the employee. The pre-eminent case in Florida remains Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991).
When an individual alleges he has been subjected to "disparate treatment," the standards of proof require that the Petitioner show the existence of "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on discriminatory criterion illegal under the Act." See McCosh v. City of Grand Forks, 628 F.2d 1058 (8th Circuit 1980), and Furnco Const. Co. v. Waters, 438 U.S. 567, 98 S. Ct. 2943, 57
L. Ed. 2d 957 (1978), citing Teamsters v. United States, 431 U.S.
324, 358, 97 S.Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977). Once a
Petitioner establishes the prima facie case, the burden shifts to the employer to rebut the adverse inference by articulating "some legitimate nondiscriminatory reason for the employee's rejection." See McCosh v. City of Grand Forks, and McDonnell Douglas Corp. v. Green, both supra. But even if the employer meets this burden, the complaining party is given the opportunity to show that the proffered evidence is merely a pretext for discrimination, Id. at 804-805, 93 S. Ct. at 1025. See generally Kirby v. Colony Furniture Co., 613 F.2d 696 (8th Circuit 1980).
A reason articulated by the employer cannot be a "pretext for discrimination" unless it is shown both that the reason articulated by the employer was false and that the discrimination was the real reason. A plaintiff must do more than simply allege pretext and provide self-serving affirmation of his own belief that he was discriminated against in order to satisfy his burden. Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990); Elliot v. Group Medical and Surgical
Service, 714 F.2d 556, 567 (5th Cir. 1983). Rather, a petitioner must present "concrete evidence in the form of specific facts which show that the defendant's proffered reason is mere pretext. Mere conclusive allegations and assertions will not suffice." Earley v. Champion International Corp., supra. See also Cooper
v. Gulf Coast Treatment Center, DOAH Case No. 00-3850 (Recommended Order February 28, 2001; Final Order July 6, 2001).
Petitioner's race is white/Caucasian, a race that is not normally regarded as a protected minority class. However, whites are also a protected group under Title VII of the Federal Civil Rights Act, and would be protected under Chapter 760, Florida Statutes. However, relying on federal law, Petitioner must prove a prima facie case of intentional disparate treatment when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority. See Parker v. Baltimore & Ohio R.R. Co., 652 F.2d. 1012 (D.C. Cir. 1981). In accord Notari v. Denver Water Dept., 971 F.2d 585 (10th Cir. 1992). Peripherally on "reverse discrimination," see Ehlmann v. Florida A & M University,
DOAH Case No. 96-2855; Final Order August 26, 1998).
Petitioner's August 13, 1998, letter to Respondent's Superintendent arguably cannot form a predicate for a charge of discrimination based on retaliation. Unlike internal "whistle blowing," the federal and state statutory protections against retaliation usually only extend to protecting an employee who has been retaliated against because s/he has filed a formal charge with the Florida Commission on Human Relations, pursuant to Chapter 760, Florida Statutes, and/or with the Equal Employment Opportunity Commission, pursuant to Title VII of the Federal
Civil Rights Act, or because s/he has cooperated in a complaining employee's case. Assuming arguendo, the August 13, 1998, letter can form such a predicate, no nexus was proven between the
August 13, 1998, letter and Petitioner's failure to get a job with Respondent or with the handling of the October 20, 1998, incident. Santa Fe wanted Petitioner to substitute despite whatever caused the laughter. Petitioner never applied for a full-time position at Santa Fe. The decision to hire Ms. Poulos at Gainesville High was probably made before this letter and merely approved afterwards. Ft. Clarke hired him to substitute, but treated him as it would any other accused substitute under like circumstances.
Petitioner's problems resulting from the October 20, 1998, incident with K.S. also do not establish that he was "retaliated against" by virtue of his race or national origin, because of black-on-white discrimination resulting from the October 20, 1998, incident, because he protested his innocence thereafter, or because he filed a charge of discrimination on April 10, 1999.
It is not necessary for the undersigned to decide what really happened on October 20, 1998, or whether Petitioner or
K.S. was telling the truth about that incident. That is a non- issue for purposes of the instant case.
The fact that Petitioner was accused of a white-on- black act and of a racially derogatory comment against a black person does not, in and of itself, mean that there was a conspiracy against him as a German or as a white male. The incident was investigated by a white female and a black male in accord with Respondent's standard procedure regarding substitute teachers. They genuinely believed K.S.'s version of the incident and acted accordingly. Ms. Utley, the white female, did most of the investigation and her recording "black turkey" in 1998, when
K.S. maintained in 2002, that she actually was called "black chicken," does not constitute more than an insignificant discrepancy. Ms. Utley was credible in her testimony that she wrote her letter from two days' hindsight rather than as events transpired from October 20 through 22, 1998, and that she did, in fact, interview several children at random before writing it, even though she did not record in the letter that she had done so. Ms. Utley and Mr. Hall's testimony is materially consistent in this issue. They also had other valid grounds to remove Petitioner from the Respondent's substitute teacher list in 1998. None of their reasons related to Petitioner's August 13, 1998 letter, race, or national origin.
Petitioner proved that Alachua County does not afford its substitute teachers the same due process rights it affords its full-time contract teachers, but Petitioner has not proven
that he was treated any differently than any substitute teacher of any race or national origin would have been treated under similar circumstances. He also has not established that his treatment with regard to the October 20, 1998, incident was the result of his race, national origin, or in retaliation for his August 13, 1998, letter to the Superintendent. Petitioner has not even established a prima facie case in this regard.
As a result of Respondent's slipshod filing of the Utley and Hall letters and/or the failure to include Petitioner's written protests in the same official file(s), Petitioner may or may not have grounds for a defamation or breach of confidentiality action, pursuant to Section 231.291, Florida Statutes, but those are not issues before the Division of Administrative Hearings in this case.
It is well-settled that anti-discrimination laws "do not require the employer to have good cause for its decision." Nix v. WLCY Radio, 738 F.2d 1181 (11th Cir. 1984). Discrimination laws are not meant to be a shield against "harsh or draconian" treatment and "do not take away an employer's right to interpret its rules as it so chooses, and to make determinations as it sees fit under these rules." Id. see also Abel v. Dubberly, 210 F.3d 1334, n. 5 at page 1339 (Cir. 11 2000), and Woodbury v. Sears, Roebuck & Co., 901 F. Supp. 1560 (M.D. Fla. 1995).
A prima facie case was established that Petitioner is in one or more protected classes and was not hired by Respondent. However, Respondent has articulated legitimate, non- discriminatory reasons that have nothing to do with Petitioner's national original or race or with retaliation growing out of the August 13, 1998 letter, the October 20, 1998 incident, or because Petitioner protested his innocence thereafter or filed a discrimination charge on April 10, 1998. In no instance was Petitioner more highly qualified by years of teaching in Alachua County than the respective applicants hired for full-time teaching positions. In most instances, white applicants were hired by white principals, so Petitioner cannot claim racial discrimination, and no anti-German prejudices were demonstrated.
Petitioner's allegation that he was discriminated against because he was "over-qualified" is another non-issue, because there is no such statutorily protected class, per se. Only where a job applicant can demonstrate that he is more qualified than the individual actually hired does an inference arise that the applicant hired was hired for a discriminatory reason, and even that inference may be rebutted. Herein, evidence showed that the emphasis Petitioner places on multiple certifications, his teaching experiences in other countries, and his scientific publications was not shared by the Alachua County administrators with whom he interviewed. Petitioner did not
demonstrate that he was more content-proficient than any other specific candidate, because there was no evidence that the applicants hired did not have degrees, languages, and publications equivalent to his. The School Board records do not record that type of information. Assuming, but not ruling, that Petitioner was more content-proficient, he did not demonstrate that qualification made him a superior candidate to those persons who, through longer teaching experience in Alachua County Schools, were presumed by the interviewers to be better classroom managers than Petitioner and thus able to teach specific types of students. Finally, the Alachua County School Board has no obligation to fire a teacher already in place just to hire Petitioner, even if he could show he is more qualified.
Petitioner did not complete his one full year of on- the-job training until June 2001, in Indian River County. (See Finding of Fact 5) The Respondent's principals were entitled to weigh more heavily in their hiring those qualities they desired most in an employee, so long as they did not discriminate against a statutorily protected class. Apparently, they gave greater weight to teaching methodology and experience in Alachua County over subject matter content, subject certification, higher degrees, or teaching experience outside their county. This may be an insular preference, but it is not proscribed
discrimination. Petitioner has not rebutted the Respondent's non-discriminatory reasons.
Petitioner is in the unenviable position of not being a desirable hire until he has experience in Alachua County and being unable to gain that experience until he is hired. However, he has not demonstrated discrimination within Chapter 760, Florida Statutes.
Accordingly, Petitioner has not established, by a preponderance of the evidence, that Respondent discriminated against him because of his race, national origin, or in
retaliation.
Based upon the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 31st day of May 2002.
ENDNOTES
1/ Exhibit P-8 was a hearsay statement of Ms. Betty J. Wilson, a black female, who also testified as to what she heard on the tape. P-8 was not admitted in evidence, because Ms. Wilson was able to testify in person. Her interpretation of the tape is double-hearsay and not helpful. The best evidence is the tape recording itself (P-15), which the undersigned has listened-to several times.
2/ Petitioner submits that this discrepancy between Ms. Utley's letter and K.S.'s trial testimony re "little black chicken" shows
K.S. was lying on both occasions. See the Conclusions of Law, resolving weight and credibility issues.
3/ Petitioner construes this letter as Ms. Utley's promise to the parents to remove Petitioner's name from the substitute teacher list before any evidence was taken from other students or himself. He also suggests that since the letter says nothing about talking to students, Ms. Utley's testimony at hearing was false. In light of Ms. Utley's credible testimony at the disputed-fact hearing and Dr. Hall's credible testimony concerning their contemporaneous conversations on or about October 20-22, 1998, Petitioner's understanding of this letter is rejected. See Findings of Fact 33-35 and the Conclusions of Law.
4/ Only because Petitioner seems to be alleging "pattern discrimination" and continuing retaliation could he present evidence of events after the April 10, 1999, charge of discrimination.
5/ The other issues raised are valid in "pattern discrimination" and retaliation cases, but Petitioner's Proposed Recommended Order alleges for the first time that he was discriminated against when female principals hired younger females for positions he had applied for or for which he had interviewed.
After the disputed-fact hearing, it is too late to raise gender and age issues for the first time. The Florida Human Relations Commission has had no opportunity to review these allegations, and they were not proven.
6/ Normally, a party opponent must be notified in advance of hearing if a summary of voluminous business records is going to be used in place of the records themselves, but in this case, Petitioner did not object to the admission of the summary, to Ms. Pratt's recollection refreshed thereby, or to Ms. Pratt's testimony that she had personally assembled all the underlying documentation before creating the summary.
COPIES FURNISHED:
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway
Suite 100
Tallahassee, Florida 32301
James F. Lang, Esquire
Chandler, Lang, Haswell & Cole, P.A. Post Office Box 23879
Gainesville, Florida 32602-3879
Leila W. Pratt, Director Department of Personnel Alachua County School Board 620 East University Avenue Gainesville, Florida 32601
Hart Spiller
3414 Northwest 46 Place
Gainesville, Florida 32605
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 18, 2002 | Agency Final Order | |
| May 31, 2002 | Recommended Order | Insular preference to hire people trained in country is not proscribed discrimination. Reverse racial discrimination, national origin (German), and retaliation discrimination not proven. |
DEVON A. ROZIER vs SOUTHGATE CAMPUS CENTER, 02-000065 (2002)
POLK COUNTY SCHOOL BOARD vs PATRICK M. HILL, 02-000065 (2002)
JAMES J. WEAVER vs LEON COUNTY SCHOOL BOARD, 02-000065 (2002)
MARC D. BALDWIN vs. EDUCATION PRACTICES COMMISSION, 02-000065 (2002)
BROWARD COUNTY SCHOOL BOARD vs MICHAEL LUNT, 02-000065 (2002)
