vs.
Respondent.
) Case No. 02-0552
Pursuant to notice, a formal hearing was held in this case on April 10, 2002, in Bartow, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Wade B. Coye, Esquire
Wade B. Coye, P.A. 730 Vassar Street
For Respondent: Donald H. Wilson, Esquire
Whether Respondent engaged in an unlawful employment practice when it failed to hire Petitioner for the position of
Training and Safety Specialist in November 1998 and December 1998.
On December 14, 1998, and January 14, 1999, Petitioner filed charges of discrimination against the Polk County School Board (Respondent or School Board) with the Equal Employment Opportunity Commission and the Florida Commission on Human Relations (Commission). The charges of discrimination alleged that the School Board failed to hire Petitioner for the position of Training and Safety Specialist because of his race. The Commission investigated the charges and on January 14, 2002, the Commission issued a “no cause” determination. On February 13, 2002, Petitioner timely filed a petition with the Commission challenging its “no cause” determination and requesting a formal administrative hearing. On February 14, 2002, the petition was referred to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge to conduct the hearing requested by Petitioner.
The hearing was held on April 10, 2002. At the hearing, Petitioner offered his own testimony as well as the deposition testimony of Joe Dixson, the former Training and Safety Specialist. All of the exhibits offered by Petitioner, numbered 1-16, were received into evidence. The School Board offered the testimony of Fred Murphy, the Assistant Superintendent for
Support Services; Sharon Arnold, the current Training and Safety Specialist; Carol Reynolds, the principal of Frost Proof Elementary School; and David Milhorn, the Vehicle Safety Service Manager and a member of the committee that interviewed the applicants for the Training and Safety Specialist position. The School Board did not offer any exhibits.
The Transcript of the hearing was filed with the Division on April 25, 2002. In accordance with Rule 28-106.216, Florida Administrative Code, the parties were given 10 days from the date the Transcript was filed to file their proposed recommended orders. The parties’ Proposed Recommended Orders were timely filed and were considered by the undersigned in preparing this Recommended Order.
Based upon the testimony and evidence received at the hearing, the following findings are made:
Petitioner first began to work for Respondent as a substitute school bus driver in November 1988, approximately half-way through the 1987-88 school year. He worked as a substitute bus driver for the remainder of that school year and approximately half of the 1988-89 school year until he was hired as a full time bus driver in January 1989. He continued to work as bus driver through the 1993-94 school year, a total of six and a half school years.
In August 1994 (the start of the 1994-95 school year), Petitioner was hired as a para-professional, i.e., teacher’s assistant, in Respondent's Adjudicative Youth Program. Petitioner is still employed in that position. The program serves students who have previously been in the juvenile justice system and are now being reintegrated into the school system.
Petitioner does not hold a teacher’s certificate.
However, Petitioner has gained some teaching experience in his current position because he occasionally serves as a substitute teacher.
Petitioner received an associates degree in criminal justice in 1995. He has taken additional classes towards a bachelor's degree, in business administration and in exceptional student education. However, he is at least a semester short of a degree in either subject.
After Petitioner left his position as a school bus driver in 1994, he did not maintain his certification by taking the required eight hours of annual “in service” training and by taking an annual physical as required by Rule 6A-3.0141(9), Florida Administrative Code.
In November 1998, Respondent posted notice of a vacancy for the position of Transportation and Safety Specialist. The position was coming open because Joe Dixson, the Training and Safety Specialist at that time, was retiring.
The Training and Safety Specialist supervises the bus driver trainers and is responsible for coordinating the initial and continuing "in service" training of the bus drivers. The Training and Safety Specialist also serves as a liaison with law enforcement officials in the event a school bus is involved in an accident and is responsible for maintaining the bus drivers' records, including the commercial drivers license (CDL) records, which were examined by the State annually.
The minimum qualifications for the position, as set forth in the November 1998 job posting, were:
Knowledge, Abilities, Skills: Considerable knowledge of school bus operation and training program. Considerable knowledge of the hazards and driving safety precautions relating to transportation of students.
Knowledge of rules and regulations of the School Board, State Board of Education and of State and Federal laws. Ability to maintain a driver education program.
Ability to implement and maintain an effective working relationship with school personnel and the public.
Training and Experience: Graduation from an accredited college or university with a Bachelor’s degree or equivalent Vocational/Technical training or certification. Five years experience in school transportation.
Licenses or Certifications: Appropriate State of Florida Driver’s license. Florida Department of Education teacher [sic] certificate in school bus driver training.
Physical Requirements: Light Work: Exerting up to 20 pounds of force
occasionally and/or up to 10 pounds of force as frequently as needed to move objects.
Seven individuals submitted applications for the position, including Petitioner and Sharon Arnold.
Petitioner, Ms. Arnold, and all of the other applicants were interviewed on November 20, 1998. The interviews were conducted by a five-member committee who scored each applicant on various issues. Petitioner's average score (82 out of 120) was the lowest of all of the applicants interviewed. By contrast, Ms. Arnold's average score (100.4 out of 120) was the third highest.1
Neither Petitioner nor Ms. Arnold were qualified for the position because they did not have a bachelor's degree or "equivalent Vocational/Technical training or certification." The certification was explained at hearing to be a teaching certificate issued by the Department of Education (DOE) to a plumber, for example, to teach a vocational class in plumbing. This explanation is consistent with DOE's rules. See, e.g., Rule 6A-4.076, Florida Administrative Code.
None of the other applicants had these minimum qualifications either.
Accordingly, Mr. Murphy recommended to the School Board that the minimum qualifications be changed to eliminate the requirement for a bachelor’s degree and to require only an
“ability to obtain” the DOE certificate in bus driver training. The School Board approved Mr. Murphy’s recommendation.
The purpose of the change in the minimum qualifications was to increase the pool of eligible applicants for the position. The effect of the change was to make Petitioner, Ms. Arnold, and potentially others eligible for the position.
In December 1998, Respondent re-posted the notice for the Transportation and Safety Specialist position. The minimum qualifications for the position, as set forth in the December 1998 posting, were:
Knowledge, Abilities, Skills: Considerable knowledge of school bus operation and training program. Considerable knowledge of the hazards and driving safety precautions relating to transportation of students.
Knowledge of rules and regulations of the School Board, State Board of Education and of State and Federal laws. Ability to maintain a driver education program.
Ability to implement and maintain an effective working relationship with school personnel and the public.
Training and Experience: Graduation from high school or completion of GED. Five years experience in school transportation.
Licenses or Certifications: Appropriate State of Florida Driver’s license. Ability to obtain a Florida Department of Education certificate in school bus driver training.
Physical Requiriments: Light Work:
Exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force as frequently as needed to move objects.
The major functions and illustrative duties of the position were not changed in the December 1998 posting. The salary grade (14) and salary range ($28,800–32,490) also remained the same.
The salary for the Transportation and Safety Specialist position was based upon 12 months of work. Petitioner's salary in December 1998 was $17,518, but that was based upon a 194-day (i.e., school year) contract period.
Seven individuals, including Petitioner and
Ms. Arnold, applied for the position as re-advertised. Of the original applicants, Ms. Arnold and Petitioner were the only individuals who reapplied.
Petitioner, Ms. Arnold, and the other applicants were interviewed on December 9, 1998. The applicants were interviewed by a four-member committee who scored each applicant in the same manner as before. Ms. Arnold received the highest average score from the interviewers, 107.5 out of 120. By contrast, Petitioner's average score was only 82.5 out of 120.2
Based upon the interviews, the committee recommended to Mr. Murphy that Ms. Arnold be hired for the position.
Mr. Murphy accepted the committee’s recommendation and
Ms. Arnold was hired as the Transportation and Safety Specialist starting in January 1999. She was hired at the minimum salary, and she is currently employed in that position.
Ms. Arnold was first employed by Respondent in March 1987, as a substitute bus driver. She was hired as a full-time bus driver in May 1987, in advance of the 1987-88 school year. She continued to work as a bus driver until she was hired as Transportation and Safety Specialist, a total of 11 school years.
In addition to her duties as a bus driver, Ms. Arnold served as a bus driver trainer since 1993. In that capacity, she provided on-road training to newly-hired and prospective bus drivers by observing their performance and helping them learn their routes. Ms. Arnold volunteered for these additional duties, although she was paid her hourly wage for conducting the training. She provided this training during the week between her morning and afternoon bus driving shifts, and sometimes on the weekends. Petitioner never served as a bus driver trainer.
Ms. Arnold is certified by the State as a CDL trainer and examiner for Class A, B, and, C vehicles. As a result, she is authorized to teach and test persons applying for a CDL license to drive a school bus, tractor trailer, and other large vehicles. Ms. Arnold assisted the Department of Highway Safety and Motor Vehicles staff as a CDL examiner during the summers
and received positive feedback on her work. Petitioner is not a certified CDL trainer or examiner.
Ms. Arnold is also certified by DOE as a school bus driver trainer. She holds a Level 1 certification which allows her to administer classroom training, as well as a Level 2 certification which allows her to administer on-road training. Petitioner does not hold the DOE certifications, although he has the ability to obtain them.
Ms. Arnold received the DOE certifications in October 1998 after a week-long seminar paid for by Respondent.
Ms. Arnold was recommended for the seminar by Mr. Dixson and her area supervisor. Mr. Dixson recommended her because of the dedication and hard work that she exhibited when working as a bus driver trainer. Other drivers were recommended for the seminar as well; however, Petitioner was not one of those recommended.
In addition to her formal duties as a school bus driver, Ms. Arnold volunteered at Frost Proof Elementary School prior to the start of each school year to help answer parents' questions about their child's school bus route.
There is no evidence to support Petitioner's contention that the minorities are systematically overlooked for professional positions in Respondent's transportation department. To the contrary, the evidence shows that since 1993
when Mr. Murphy was hired as the administrator responsible for the transportation department, minority employment in advanced positions has increased significantly, from zero to six (out of
18) bus driver trainers and from zero to six (out of 27) professional staff.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57, and 760.11(7), Florida Statutes. (All references to Sections are to the Florida Statutes.)
Section 760.10(1)(a) provides that it is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
This language was patterned after Title VII of the Civil Rights Act of 1964. Therefore, case law construing Title VII is persuasive when construing Section 760.10. See Gray v. Russell Corp., 681 So. 2d 310 (Fla. 1st DCA 1996); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
The framework for the analysis of Title VII claims was established by the United States Supreme Court in McDonnell-
Douglass Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). And see St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) (reaffirming and refining the analysis set forth in McDonnell-
Douglass and Burdine).
Pursuant to this analysis, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. See Hicks, 509 U.S. at 506.
In order to establish a prima facie case, Petitioner must establish that: (1) he is a member of a protected group; (2) he is qualified for the position; (3) he was subject to an adverse employment decision; and (4) after his rejection, the position remained open and Respondent continued to seek applicants from persons of Petitioner's qualifications or the position was filled by a person outside Petitioner's protected group. Id.; Bryant, 586 So. 2d at 1209; School Board of Leon County v.
Hargis, 400 So. 2d 103, 108 n.2 (Fla. 1st DCA 1981).
If a prima facie case is established, the burden shifts to the School Board to produce evidence that the adverse employment action was taken for legitimate non-discriminatory reasons. Hicks, 509 U.S. at 506-07. Once a non-discriminatory reason is offered by the School Board, the burden then shifts
back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination, i.e., the reason is false and that the real reason for the School Board's decision not to hire him was race. Id. at 507-08, 515-17. In this regard, the ultimate burden of persuasion remains with Petitioner throughout the case to demonstrate a discriminatory motive for the adverse employment action. Id. at 508, 510-11.
Petitioner failed to meet his initial burden of establishing a prima facie case of discrimination resulting from Respondent's action on the November 1998 posting.
Petitioner failed to prove that he was qualified for the position of Transportation and Safety Specialist as initially advertised in November 1998. Indeed, the weight of the evidence shows that Petitioner was not qualified for the position because he did not have the required bachelor's degree or an equivalent vocational certification which, at the time, were minimum qualifications for the position.
Petitioner did establish a prima facie case of discrimination with respect to Respondent's action on the December 1998 posting. Specifically, he proved that (1) he was qualified for the position of Transportation and Safety Specialist based upon the change in the minimum qualifications;
he was a member of a protected group (African-American male);
he was subjected to an adverse employment action (he was not
hired for the position of Transportation and Safety Specialist); and (4) the position was filled by Ms. Arnold, a white female.
However, the School Board met its burden to produce evidence of a legitimate nondiscriminatory reason for the adverse employment action. Specifically, it offered evidence showing that Ms. Arnold has more experience driving school buses than Petitioner (11 years verses 6 and one-half years) and she has qualifications (e.g., former bus driver trainer, CDL trainer and examiner, DOE-certified school bus driver trainer) that Petitioner did not have.
In response, Petitioner failed to introduce any credible evidence that the School Board’s reasons for hiring Ms. Arnold over him were pretextual. Indeed, the preponderance of the evidence shows that Petitioner was not hired because he was less qualified than Ms. Arnold. Accordingly, Petitioner failed to meet his ultimate burden to prove that he was not hired because of his race.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner’s charge of discrimination.
DONE AND ENTERED this 14th day of May, 2002, in Tallahassee, Leon County, Florida.
T. KENT WETHERELL, II Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2002.
Wade B. Coye, Esquire Wade B. Coye, P.A.
Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Donald H. Wilson, Esquire Boswell & Dunlap, LLP
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
