02-000958 Juanita O. Jones vs. Seminole County Public Schools Status: Closed Recommended Order on Monday, September 30, 2002.

Summary: Petitioner claimed unlawful employment discrimination based on race; failed to present prima facie case; Respondent presented legitimate, non-discriminatory reasons for hiring decision.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUANITA O. JONES, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0958

)

SEMINOLE COUNTY PUBLIC SCHOOLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to n otice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on June 4 and July 11, 2002, in Sanford, Florida.

APPEARANCES

For Petitioner: Alberto E. Lu go - Janer, Esquire

3501 West Vine Street, Suite 281

Kissimmee, Florida 34741 - 4673

For Respondent: Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East La ke Mary Boulevard

Sanford, Florida 32773 - 7127

STATEMENT OF THE ISSUES

Whether or not Respondent, Seminole County Public Schools,

discriminated against Petitioner, Juanita O. Jones, in

employment by reason of race, in violation of Su bsection

760.10(1), Florida Statutes.

PRELIMINARY STATEMENT

On July 13, 2000, Petitioner filed a Charge of

Discrimination with the Florida Commission on Human Relations

against Respondent. On February 19, 2002, the Florida

Commission on Human Relations di rected a letter to Petitioner's

attorney advising that after an investigation there was a

determination "that there is no reasonable cause to believe that

an unlawful employment practice has occurred." With the letter,

Petitioner was provided a petition f or relief, which could be

completed, and Petitioner was advised that an administrative

hearing must be requested within thirty - five days.

Petitioner filed a Petition for Relief with the Florida

Commission on Human Relations. On March 4, 2002, the Florida

Commission on Human Relations transmitted the Petition for

Relief to the Division of Administrative Hearings. On March 8,

2002, an Initial Order was sent to the parties.

In response to the parties' Joint Compliance With Initial

Order, the case was schedul ed for final hearing in Sanford,

Florida, on May 8, 2002. On Respondent's motion, the case was

rescheduled for June 4, 2002.

The final hearing commenced as scheduled on June 4, 2002;

at 6:10 p.m. the proceedings were adjourned and continued until

July 11 , 2002, to allow the presentation of additional evidence.

At the final hearing, Petitioner presented four witnesses:

herself, Elizabeth Jean Smith, Regina Klaers, and John Davis.

Petitioner offered thirteen Exhibits, numbered Petitioner's 1

through 13, which were received into evidence. Respondent

presented one witness, Shirley Muse, and offered two Exhibits,

numbered Respondent's 1 and 2, which were received into

evidence.

A Transcript of the proceedings was filed with the Division

of Administrative He arings on August 14, 2002. The parties

requested and received an enlargement of time in which to file

proposed recommended orders. Respondent timely filed a Proposed

Recommended Order.

FINDINGS OF FACT

Based on the testimony and demeanor of the witnesses , and

documentary evidence, the following findings of fact are made:

1. Petitioner is a black female, who has been employed by

Respondent since 1991.

2. She has served Respondent as an Executive Secretary,

Elementary Education; Executive Secretary to the Administrative

Assistant to the Superintendent; and a Technical Assistant,

Media Center, Sanford Middle School.

3. Prior to her employment by Respondent, Petitioner was

employed as a word processing systems operator by the Florida

Department of Correctio ns.

4. In late 1999 or early 2000, Petitioner applied for the

advertised position of Specialist, Applications Software.

Respondent had advertised three separate Specialist,

Applications Software, position vacancies during a two - month

period.

5. Although interviewed for the vacancies for the first

two positions, Petitioner was not selected for the first two

advertised vacancies. Petitioner does not contend that her non -

selection for the first two positions was a result of unlawful

discrimination.

6. App licants for the three Specialist, Applications

Software, positions were interviewed by a two - person panel:

Regina Klaers and John Davis. Ms. Klaers is Supervisor, Student

Support; Mr. Davis is Manager, Student Support and Information

Services. These ind ividuals supervised the Specialist,

Applications Software, position and were intimately familiar

with the job requirements.

7. Thirteen individuals applied for the third Specialist,

Applications Software, position. Of the thirteen, ten met the

minimum qu alifications. Three applicants were interviewed.

Applicants who had been previously interviewed, Petitioner among

them, were not interviewed an additional time as the

interviewers felt they had sufficient knowledge from the

previous interviews. Petition er had been interviewed twice

previously.

8. The interviews focused on three areas: (1) school -

based experience with student data; (2) customer service

experience; and (3) "people skills." These were critical areas

for the position. The interviews were particularly important in

assessing an applicant's "people skills."

9. It was the opinion of the interviewers that one

applicant's qualifications in these critical areas exceeded the

other applicants', including Petitioner's. Based on the

interviews, E lizabeth Jean Smith, a white female, was selected

for the position.

10. Ms. Smith had significantly greater school - based

"data - entry" experience with the student data systems, WANG and

SASI, than did Petitioner. Immediately prior to being selected

for t he position in question, Ms. Smith's position was

Clerk/Receptionist - Customer Service. Both interviewers agreed

that Ms. Smith demonstrated better "people skills."

11. Credible evidence supported the selection of Ms. Smith

based on her extensive school - b ased experience with student data

systems and her customer service experience. While "people

skills" are less empirically quantifiable than the other

critical areas of the interviewers' focus, nothing revealed

during the final hearing led the undersigned to believe that

Petitioner had better "people skills" than did the individual

selected for the position.

12. Respondent selected Elizabeth Jean Smith for the

Specialist, Applications Software, position because she was more

qualified for the position than other applicants, including

Petitioner.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Subsection 120.57(1), Florida Statutes.

14. Subsection 760.10(1)(a), F lorida Statutes, provides

that it is an unlawful employment practice for an employer:

(1)(a) To discharge or to fail or refuse

to hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

o r privileges of employment because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

15. Florida courts have determined that federal

discrimination law should be used as a guidance when construing

provis ions of Section 760.10, Florida Statutes. Harper v.

Blockbuster Entertainment Corp. , 139 F.3d 1385 (11th Cir. 1998);

Florida Department of Community Affairs v. Bryant , 586 So. 2d

1205 (Fla. 1st DCA 1991).

16. The United States Supreme Court established in

McDonnell - Douglas Corporation v. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), the analysis to be used in cases alleging discrimination

under Title VII, which is persuasive in the instant case, as

reiterated and refined in the case of St. Mary's Honor Center v.

Hicks , 509 U.S. 502 (1993).

17. This analysis illustrates that a petitioner has the

burden of establishing, by preponderance of evidence, a prima

facie case of discrimination. If that pri ma facie case is

established, the respondent must articulate a legitimate, non -

discriminatory reason for the action taken. The burden then

shifts back to the petitioner to go forward with evidence to

demonstrate that the offered reason is merely a pretext for

unlawful discrimination. The Supreme Court stated in Hicks ,

before finding discrimination in that case, that:

[T]he fact finder must believe the

plaintiff's explanation of intentional

discrimination.

509 U.S. at 519.

18. In the Hicks case, the Cou rt stressed that even if the

fact finder does not believe the proffered reason given by the

employer, the burden still remains with the petitioner to

demonstrate a discriminatory motive for the adverse employment

action taken.

19. In order to establish a prima facie case, Petitioner

must establish that she is a member of a protected class or

group; that she is qualified for the position in question; that

despite her qualifications she was not selected for the position

(she was subjected to an adverse empl oyment decision); that

someone was selected who had similar qualifications who was not

in the protected group; that she was treated less favorably than

similarly situated persons outside her protected group; and that

there is some causal connection between her membership in the

protected group and the adverse employment decision that was

made. McDonnell - Douglas Corporation v. Green , 411 U.S. 792

(1973); Canino v. U.S. E.E.O.C. , 707 F.2d 468, (11th Cir. 1983).

20. There is no dispute in this case con cerning whether

Petitioner is a member of a protected class or group, that she

met the minimum qualifications for the position (or she would

not have been interviewed), that an adverse employment decision

was made, and that someone was selected for the pos ition who was

not a member of the protected group.

21. Petitioner failed to demonstrate that she was as

qualified or more qualified for the Specialist, Applications

Software, position than the applicant selected. In addition,

Petitioner failed to es tablish any causal connection between her

failure to be selected for the position and her race. No

credible evidence was presented that her failure to be selected

for the position was because of her race other than her simply

making conclusory statements to that effect. Coutu v. Martin

County Board of County Commissioners , 47 F.3d 1068, 1073 (11th

Cir. 1995); Young v. General Foods Corp. , 840 F.2d 825, 830

(11th Cir. 1988).

22. While Petitioner failed to establish a prima facie

case, Respondent offe red legitimate, non - discriminatory

explanations for its failure to select Petitioner for the

position she sought. It hired someone it considered more

qualified than Petitioner. This hiring decision is amply

supported by credible evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the Petition for Relief

filed in this case.

DONE AND ENTERED this 30th day of September , 2002, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

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 30th day of September, 2002.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalac hee Parkway, Suite 100

Tallahassee, Florida 32301

Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

Alberto E. Lugo - Janer, Esquire

3501 West Vine Street, Suite 281

Kissimmee, Florida 3474 1 - 4673

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days fr om 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.