02-002295 James J. Weaver vs. Leon County School Board Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, October 3, 2002.

Summary: Petitioner claimed discrimination because board refused to hire him. Since 1991, state circuit court and two federal district courts determined refusal was based on legitimate nondiscriminatory reasons. Held: dismiss petition on collateral estoppel.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES J. WEAVER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2295

)

LEON COUNTY SCHOOL BOARD, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER OF DISMISSAL

This cause came on for formal hearing before Harry L.

H ooper, Administrative Law Judge with the Division of

Administrative Hearing, on July 17, 2002, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: James J. Weaver, pro se

Post Office Box 6935

Tallahassee, Florida 32314 - 6935

For Respon dent: C. Graham Carothers, Esquire

Ausley & McMullen

Post Office Box 391

Tallahassee, Florida 32302 - 0391

William R. Mabile, III, Esquire

Fuller, Johnson, & Farrell, P.A.

111 North Calhoun Street

Tallahassee, Florida 32302

STA TEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner by refusing to employ him as a school teacher.

PRELIMINARY STATEMENT

On April 20, 2000, Petitioner (Dr. Weaver) filed a Charge

of Discrimination with the Florida C ommission on Human

Relations (the FCHR). This Charge asserted that Dr. Weaver

had applied unsuccessfully for a number of positions with

Respondent, Leon County School Board (the School Board), and

that he had not been hired because of his race, or sex, or

age, or marital status. He also alleged retaliation. In

particular, Dr. Weaver alleged that the School Board

discriminated against him "[d]uring April 1999 through March

2000" by refusing to hire him. On February 12, 2001, the FCHR

issued a "Determinat ion: No Jurisdiction" which found the

FCHR lacked jurisdiction over all of Dr. Weaver's claims

except his claim that the School Board discriminated against

him on the basis of marital status.

On March 12, 2001, Dr. Weaver filed with the Division of

Admi nistrative Hearings (the Division), a "Motion for an

Emergency Hearing to Determine DOAH's Jurisdiction Over FCHR

Case No. 20 - 1803 Based on Petitioner's Claim of Marital

Status." This Motion argued in part that the Division lacked

jurisdiction over his Pe tition for Relief because the FCHR had

not issued a determination on his claim of discrimination

based on marital status.

On June 26, 2001, an Order Closing File was issued by the

undersigned which agreed with Dr. Weaver's contention that the

Division lack ed jurisdiction to preside over his claim of

marital status discrimination because the FCHR had not issued

a determination on that claim.

On April 25, 2002, the FCHR issued a "Notice of

Determination: No Cause" stating that there was no reasonable

cause t o believe that an unlawful employment practice occurred

in relation to alleged discrimination based upon marital

status.

On May 28, 2002, Dr. Weaver filed a Petition for Relief

with the FCHR. The Petition was forwarded to the Division and

was filed on Jun e 5, 2002. That Petition for Relief alleges

that the School Board discriminated against Dr. Weaver by

failing to hire him for teaching positions from April 1999 to

March 2000. The case was set for hearing on August 14 and 15,

2002.

On June 24, 2002, Resp ondent filed a Motion to Dismiss

Weaver's Petition for Relief. Filed with the Motion were a

number of exhibits reflecting past litigation between Dr.

Weaver and Respondent. The Motion asserted that Dr. Weaver's

petition is barred by the doctrines of res judicata ,

collateral estoppel, and the prohibition against splitting

claims. On July 12, 2002, Dr. Weaver filed Petitioner's

Motion for Summary Final Order Pursuant to Chapter 28 -

106.204(4), Florida Administrative Code. Dr. Weaver's Motion

also included exhibits, provided facts, and argued law.

The Respondent's Motion to Dismiss was heard on July 17,

2002. All parties were present and argument was had. During

the course of the hearing the School Board withdrew its

assertion that the matter was barred by res judicata .

An administrative law judge may not dismiss a petition

forwarded to the Division by the FCHR. Only the FCHR may

dismiss a petition. Therefore the School Board's Motion to

Dismiss Weaver's Petition for Relief is deemed to be a Motion

for a Recommended Order of Dismissal.

Because the matter filed with the Respondent's Motion and

Petitioner's Motion for Summary Final Order Pursuant to

Chapter 28 - 106.204(4), Florida Administrative Code, provided

sufficient agreed - upon factual information to per mit the entry

of a Recommended Order of Dismissal, the taking of additional

evidence was not necessary.

References to statutes are to Florida Statutes (2001)

unless noted otherwise.

A Transcript was filed on August 20, 2002. After the

hearing, Petitioner and Respondent timely filed Proposed

Recommended Orders.

FINDINGS OF FACT

1. Dr. Weaver is a person of the African - American race,

who is over the age of 40. He is not married. He holds a

Doctor of Philosophy degree from Florida State University. He

h as applied for various teaching positions with the School

Board annually since 1979. He has applied to the School Board

for more than 1200 positions since 1991.

2. The School Board has determined that it does not wish

to hire Dr. Weaver.

3. Dr. Weaver has filed a succession of judicial and

administrative actions against the School Board over the past

17 years.

Dr. Weaver's 1985 administrative case and its aftermath

4. Dr. Weaver's initial legal skirmish with the School

Board occurred in 1985 when he filed an administrative

complaint with the FCHR alleging racial discrimination because

the School Board refused to employ him. The matter was heard

before the Division. Hearing Officer Stephen F. Dean found

that Dr. Weaver had presented a prima facie cas e of

discrimination and that the School Board failed to present a

legitimate, nondiscriminatory reason for not hiring him during

the period 1979 to 1985.

5. Subsequently, the FCHR issued a final order directing

the School Board to hire Dr. Weaver i n a full - time teaching

position and to provide him with back pay. This matter was

appealed to the First District Court of Appeal which upheld

the FCHR's order to the extent that it required the School

Board to hire Dr. Weaver. The Court reversed the orde r to

provide back pay. School Bd. of Leon County v. Weaver , 556

So. 2d 443 (Fla. 1st DCA 1990). The events surrounding this

litigation are set forth in detail in Petitioner's Motion for

Summary Final Order Pursuant to Chapter 28 - 106.204(4), Florida

Admin istrative Code.

6. Because of Dr. Weaver's successful suit, the School

Board hired Dr. Weaver as a teacher for the 1990 - 1991 school

year. He taught at Deerlake Middle School for a time and then

was transferred to Nims Middle School. Because the Sch ool

Board believed his work to be unsatisfactory, his contract was

not renewed at the end of the school year.

Subsequent litigation in the Circuit Court of the 2d Judicial

Circuit

7. Dr. Weaver, subsequent to the 1990 - 91 school year,

applied for man y jobs with the School Board. He was rebuffed

on each occasion. He thereafter filed an administrative

complaint with the FCHR regarding the School Board's refusal

to hire him after the 1990 - 1991 school year. On March 17,

1992, the FCHR entered an order entitled, "Determination: No

Cause." This order explained that Dr. Weaver had not

demonstrated a prima facie violation of Section 760.10,

Florida Statutes, and that the School Board had articulated

legitimate, nondiscriminatory reasons for the actions se t

forth in Dr. Weaver's complaint. This determination gave Dr.

Weaver the right, pursuant to Section 760.11(7), Florida

Statutes (Supp. 1992), to have the matter heard before an

administrative law judge of the Division.

8. In October 1992, the Equal Employment Opportunity

Commission (EEOC) issued a similar determination after

conducting an investigation. The EEOC's determination

informed Dr. Weaver that he had the right to sue in federal

district court should he disagree with the determination.

9. In January 1993, Dr. Weaver brought an action in the

circuit court of the 2d Judicial Circuit, in Leon County,

pursuant to Title VII of the Civil Rights Act of 1964, as

amended, and Title 42 U.S.C. Sections 1981 and 1988. This

case was designated Cas e No. 93 - 200. In his complaint, Dr.

Weaver alleged that shortly after he began work pursuant to

the FCHR's order in 1990, the School Board initiated "a

racially discriminatory and retaliatory course of action" that

included (1) payment of an inadequate sa lary for his

educational level, (2) a reassignment to less favorable

classes in a different school, (3) the failure to renew his

teaching contract at the end of the 1990 - 1991 school year, and

(4) the failure to hire him in numerous other positions for

whic h he applied. Dr. Weaver alleged that he had been treated

differently from white teachers and applicants, and from other

individuals who had not opposed racial inequities. The School

Board filed an answer and raised 13 affirmative defenses.

10. Sub sequently, the School Board moved for summary

judgment and the court granted the motion. An appeal

followed. The First District Court of Appeal remanded the

case back to the circuit court stating, "Without commenting on

the likelihood of success of Dr. W eaver's racial

discrimination claims under the instant facts, we must

conclude, at this stage, that genuine issues of material fact

exist for trial regarding Dr. Weaver's allegations relating to

all claims, thereby precluding summary judgment." Weaver v.

School Bd. of Leon County , 661 So. 2d 333 (1st DCA 1995).

11. A trial pursuant to the complaint was held in

circuit court in October 1998. Dr. Weaver was permitted to

introduce evidence of alleged discrimination occurring between

1991 and October 19 98. A jury of his peers decided against

Dr. Weaver, necessarily finding that the School Board had

demonstrated legitimate, nondiscriminatory reasons for its

refusal to employ him. Dr. Weaver appealed to the First

District Court of Appeal which, in a per curiam decision,

affirmed the action of the trial court. Weaver v. School Bd.

of Leon County , 757 So. 2d 504 (Fla. 1st DCA 2000).

Dr. Weaver's first lawsuit in the U. S. District Court for the

Northern District of Florida

12. In 1997, while Dr. Wea ver's case was pending in

state court, he filed a lawsuit against the School Board in

the U. S. District Court for the Northern District of Florida.

This suit was designated Case No. 4:97cv272 - RH. This suit

alleged violations of Title VII of the Civil Ri ghts Act of

1964, as amended, and Title 42 U.S.C., Section 1981. Dr.

Weaver alleged that the School Board refused to hire him due

to his race (Black), gender (male), and in retaliation for an

earlier claim of discrimination. His claims were limited to

32 positions for which he applied during the 1994 - 1995 school

year.

13. The School Board moved for summary judgment on the

merits. Magistrate Judge William C. Sherrill, Jr., issued a

Report and Recommendation stating that the School Board had

offered legitimate non - discriminatory reasons for refusing to

hire Dr. Weaver. In arriving at that conclusion, the Report

and Recommendation cited his poor job performance while

working for the School Board during school year 1990 - 1991.

14. The Report and R ecommendation noted that seven

letters and a number of oral communications from parents were

received by the principal at Deerlake Middle School during Dr.

Weaver's tenure as a teacher there. These communications

complained that Dr. Weaver's performance a s a teacher was

unacceptable. The Report and Recommendation revealed that Dr.

Weaver admitted that his relationship with some of the parents

was very bad. The Report and Recommendation quoted Dr. Weaver

as saying that, "These harassing parent conferences went on

almost on a daily basis." The Report and Recommendation noted

that when Dr. Weaver was transferred to Nims Middle School his

teacher assessment in the majority of the graded categories

was less than favorable. It also noted that at Nims Middle

S chool Dr. Weaver was unable to maintain control over his

students.

15. Magistrate Judge Sherrill found that the fact that

Dr. Weaver filed a claim of discrimination with respect to the

School Board's refusal to hire him in 1985, and was successful

on that claim, does not constitute direct evidence of the

School Board's improper motive in 1994 and 1995, since there

was no connection between the two events. Magistrate Judge

Sherrill noted that the School Board presented evidence of a

legitimate, nondis criminatory reason for refusing to employ

Dr. Weaver. Since Dr. Weaver was unable to advance any

evidence that the explanations of the School Board were

pretextual, Magistrate Judge Sherrill concluded the motion for

summary judgment should be granted.

16. After the conclusion of the circuit court case, the

School Board moved for summary judgment on the additional

ground of res judicata , citing the jury verdict in favor of

the School Board in circuit Case No. 93 - 200. Magistrate Judge

Sherrill thereaf ter issued another Report and Recommendation

finding that the School Board was entitled to summary judgment

on the basis of res judicata as well.

17. On March 30, 1999, U.S. District Court Judge Robert

Hinkle adopted the Reports and Recommendations i n Case No.

4:97cv272 - RH and determined Weaver's claims to be both

"unfounded on the merits" and "barred by the doctrine of res

judicata ." He ordered judgment in favor of the School Board.

18. Dr. Weaver appealed this order to the U.S. Court of

Appea ls for the Eleventh Circuit, which affirmed Judge

Hinkle's ruling on March 9, 2000. The opinion noted that the

School Board's assertion that it did not hire Dr. Weaver

during the 1994 - 95 school year because of prior unsatisfactory

and inadequate performan ce during the 1990 - 91 school year in

which he was a full - time seventh grade social studies teacher

at Deerlake and Nims Schools. The opinion continued, "Weaver

has wholly failed to bring forward sufficient evidence to

demonstrate that these reasons for fa iling to hire him were a

pretext for discrimination."

Dr. Weaver's second lawsuit in the U. S. District Court for

the Northern District of Florida

19. In 2000, Dr. Weaver filed another complaint in the

Northern District of Florida alleging that the School Board

violated Title VII of the Civil Rights Act of 1964, as

amended, by failing to hire him into positions for which he

applied from 1995 through 1997. This was designated Case No.

4:00cv91 - WS. He alleged discrimination based on race, sex,

and a ge, and further alleged retaliation on account of his

previous lawsuits against the School Board.

20. The School Board moved to dismiss the complaint on

the ground of res judicata . The School Board argued that all

allegedly discriminatory failures t o hire occurring before

October 1998, were barred by Dr. Weaver's loss in the circuit

court.

21. The School Board also argued that claims subsequent

to 1998 were barred because the circuit court and the U.S.

District Court for the Northern District o f Florida had both

found that the School Board did not discriminate against Dr.

Weaver when it refused to hire him. The School Board asserted

that pursuant to Exhibitors Poster Exchange, Inc. v. National

Screen Service Corp. , 517 F.2d 110 (5th Cir. 1975), the School

Board could not be continually assailed for refusing to hire

Dr. Weaver in the future. The School Board asserted that

because various trial and appellate courts had determined that

the School Board had a legitimate, nondiscriminatory reason

fo r refusing to hire Dr. Weaver, the School Board is free to

continue to refuse to hire him.

22. Magistrate Judge Sherrill issued a Report and

Recommendation finding that res judicata barred the lawsuit.

Judge Sherrill wrote:

[Weaver's] pleading dem onstrates that there

are no new facts, no significant changes,

but simply that[the School Board] continues

to refuse to hire [Weaver]. This conduct

was deemed nondiscriminatory in the prior

litigation between the parties. Four

courts have now held that [ the School

Board's] actions were lawful and, thus, the

issue may not be raised again in subsequent

actions.

23. U.S. District Court Judge William Stafford adopted

Magistrate Judge Sherrill's Report and Recommendation and

ordered judgment in favor of the School Board in Case No.

4:00cv91 - WS. The court also denied Dr. Weaver's motion to

amend his complaint to allege post - 1998 discriminatory

refusals of the School Board to hire because the claims were

barred by the doctrine of collateral estoppel as se t forth in

Exhibitors .

24. In determining that collateral estoppel barred Dr.

Weaver from amending his complaint, the U. S. District Court

stated:

[T]he [Exhibitors] court held that

collateral estoppel bars a plaintiff from

assailing the defendants for proceeding

without change upon a course of conduct

previously held lawful against plaintiff's

identical attack. Otherwise, collateral

estoppel would afford no peace to those,

such as defendants here, who pursue a

continuing course of conduct once adj udged

lawful.

* * *

[Weaver's] pleading demonstrates that there

are no new facts, no significant changes,

but simply that [the School Board]

continues to refuse to hire [Weaver]. This

conduct was deemed nondiscriminatory in the

prior litigation between the parties. Four

courts have now held that [the School

Board's] actions were lawful and, thus, the

issue may not be raised again in subsequent

actions.

25. Judge Stafford's order was upheld by the Court of

Appeals for the Eleventh Circuit.

2 6. Thereafter, Dr. Weaver filed a motion for relief

from the subsequent judgment. Dr. Weaver's motion was deemed

frivolous as were thirteen other motions he filed.

27. U.S. District Judge William Stafford then ordered

that Weaver be enjoined from f iling any lawsuit alleging

discrimination against him by the School Board unless Dr.

Weaver paid the School Board's attorney fees and, moreover,

enjoined him from filing future complaints of discrimination

unless such complaints had attached to them an aff idavit of a

third person setting forth competent evidence of

discrimination.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to

this proceeding pursuant to Sections 120.57(1) and 760.11(7),

Florida Statutes.

29. Petitioner is a "person" within the meaning of

Section 760.02(6), Florida Statutes.

30. Petitioner is an "aggrieved person" within the

meaning of Section 760.02(10), Florida Statutes.

31. Respondent is an "employer" within the meaning of

Section 760.02(7), Florida Statutes.

32. Petitioner has made allegations under the Florida

Civil Rights Act of 1992. This act was patterned after Title

VII of the Civil Rights Acts of 1964 and 1991, Title 42 U.S.

Code, Section 2000, et seq . See Florida Department of

Community Affairs v. Brant , 586 So. 2d 1205 (Fla. 1st DCA

1991) and School Bd. of Leon County v. Hargis , 400 So. 2d 103

(1st DCA 1981).

33. The U.S. Supreme Court set forth the following

burden of proof that must be met by a Title VII plaintiff in

McDonnell Douglas Corp. v. Green , 411 U. S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973): The complainant must carry the

initial burden of establishing a prima facie case of race

discrimination. This m ay be done by showing (i) that he

belongs to a racial minority; (ii) that he applied and was

qualified for a job for which the employer was seeking

applicants; (iii) that, despite his qualifications, he was

rejected; and (iv) that, after his rejection, the position

remained open and the employer continued to seek applicants

from persons of complainant's qualifications. After the

complainant satisfies this burden, the burden shifts to the

employer to articulate some legitimate, nondiscriminatory

reason for the employee's rejection. If the employer

articulates such a reason, the complainant must then be

afforded a fair opportunity to show that the employer's stated

reason was in fact, a pretext. In Texas Department of

Community Affairs v. Burdine , 450 U. S. 248, 101 S. Ct. 1089,

67 L.Ed.2d 207 (1981) , the U.S. Supreme Court reiterated that

the plaintiff al ways retains the burden of persuasion. Once

the plaintiff has established a prima facie showing of

discrimination, the defendant need only articulate -- it need

not prove -- the existence of a legitimate, nondiscriminatory

reason for its actions. The plainti ff then retains the burden

of persuading the court that the offered reason is a pretext

and that a discriminatory reason likely motivated the employer

in its actions.

34. As noted herein, Petitioner prevailed in an action

filed before the FCHR in 19 85, and after losing on appeal, the

School Board hired Dr. Weaver to teach during the 1990 - 91

school year. Petitioner, in Petitioner's Motion For Summary

Final Order Pursuant to Chapter 28 - 106.204(4), Florida

Administrative Code, seems to argue that since he prevailed on

that occasion, he should prevail on all subsequent occasions.

This position fails to address the fact that circumstances

changed following Dr. Weaver's efforts to teach during the

school year 1990 - 1991. During that school year, the Schoo l

Board was able to observe Dr. Weaver's performance. After

observing Dr. Weaver's performance the School Board determined

that he did not possess the skills that the School Board

required. Accordingly, the argument set forth in Petitioner's

Motion For S ummary Final Order Pursuant to Chapter 28 -

106.204(4), Florida Administrative Code, is rejected.

35. Subsequent to school year 1990 - 1991, Dr. Weaver

brought an action in the circuit court of the Second Judicial

Circuit and two actions in the U.S. District Court, and lost

in a jury trial in the former, and on motions for summary

judgment in the latter. In these types of cases, a petitioner

will prevail unless the respondent articulates a legitimate,

nondiscriminatory reason for its employment action. It is

clear that the School Board articulated a legitimate,

nondiscriminatory reason for not hiring Dr. Weaver. If the

School Board had not, Dr. Weaver would have prevailed.

36. The circuit court case and the Federal cases

subsequent to the 1990 - 91 school yea r were brought pursuant to

the Title VII of the Civil Rights Act of 1964. As noted

above, the Florida Civil Rights Act of 1992, is patterned

after Title VII of the Civil Rights Act of 1964. The two laws

are substantially identical in their operation, and completely

identical as to the procedure and proof of essential matters.

37. When the circuit court found that the School Board

had articulated a legitimate, nondiscriminatory reason for not

hiring Dr. Weaver because of his poor performance as a teacher

in the 1990 - 91 school year, that finding is valid under both

Title VII of the Civil Rights Act of 1964 and the Florida

Civil Rights Act of 1992.

38. Dr. Weaver is a prodigious, unrelenting litigator

whose efforts since 1991, have been rejected time and again.

He filed so many motions in the U.S. District Court that he

was rebuked by Judge Stafford. Indeed, he has filed more than

16 motions in this case. He continues to believe that each

time he applies for and is rejected for a job with the School

Boa rd, that a cause of action arises, despite the fact, that

it has been decided that the School Board has a legitimate,

nondiscriminatory reason for not hiring him.

39. The operation of the doctrine of collateral estoppel

requires that finality accru e to this litigation. Collateral

estoppel is a judicial doctrine which in general terms

prevents identical parties from relitigating issues that have

already been decided. The essential elements of the doctrine

of collateral estoppel are that the parties and issues must be

identical and that the particular issue must be fully

litigated and determined in a contest which results in a final

decision of court of competent jurisdiction. Department of

Health and Rehabilitative Services v. B.J.M. , 656 So. 2d 90 6

(Fla. 1995). See also Mobil Oil Corp. v. Shevin , 354 So. 2d

372 (Fla. 1977).

40. Collateral estoppel can operate in a state court

even when the issue was decided in a federal court. Federal

principles of collateral estoppel preclude relitigation of

issues actually litigated in a prior proceeding, where the

issues at stake are identical, and where determination of

those issues was a critical and necessary part of the first

litigation. The doctrines of collateral estoppel and res

judicata both conc ern the preclusive effect of a prior

adjudication. Res judicata precludes relitigation of the same

claim between the same parties on the same cause of action;

collateral estoppel precludes the relitigation of issues

actually adjudicated (emphasis supplied ). Courts often use

the term " res judicata " to encompass both issue preclusion and

claim preclusion, but they are different concepts. Hochstadt

v. Orange Broadcast , 588 So. 2d 51 (Fla. 3d DCA 1991).

41. Where a jury could not have grounded its verdict

u pon any other issue than the issue raised in a subsequent

proceeding, collateral estoppel will lie. With regard to the

circuit court case, a rational jury could not have grounded

its verdict for the School Board upon any issue other than the

fact that the School Board had a legitimate, nondiscriminatory

reason for refusing to employ Dr. Weaver. With regard to the

federal district court cases, facts were adduced which

demonstrated that Weaver failed to make out a case of

discrimination. To require the Sch ool Board to defend again

against the same factual allegations would be fundamentally

unfair. See State v. Short , 513 So. 2d 679 (2d DCA 1987).

42. The doctrine of collateral estoppel is available in

administrative proceedings in the same manner as it is

available in judicial proceedings. Hays v. State of Florida,

Department of Business Regulation, Division of Pari - Mutuel

Wagering , 418 So. 2d 331 (Fla. 3d DCA 1982)

43. The doctrine of collateral estoppel bars a plaintiff

from assailing a defendant for c ontinuing on a course of

conduct previously held lawful. Exhibitors Poster Exch., Inc.

v. National Screen Serv. Corp. , 517 F.2d 110 (5th Cir. 1975),

Cert. Den. , 423 U. S. 1054 (1976). In Exhibitors , the

plaintiff litigated and lost a lawsuit claiming tha t the

defendant violated certain anti - trust laws. A few years

later, the plaintiff filed another lawsuit claiming that,

since the resolution of the first suit, the defendant was

continuing to engage in the same illegal conduct. The court

found this latte r suit to be barred by collateral estoppel.

Exhibitors , 517 F.2d at 115 - 116. In other words, because the

defendant's conduct was found not to violate anti - trust laws

in the first lawsuit, the defendant was entitled to continue

in such conduct without bei ng sued again by the same

plaintiff. Likewise, since previous courts have found that it

is lawful for the School Board to refuse to hire Dr. Weaver,

the School Board is entitled to continue to refuse to hire Dr.

Weaver.

44. Here, the issue of whether the School Board has a

legitimate, nondiscriminatory reason for its decision not to

hire Dr. Weaver has been determined by at least three courts

of competent jurisdiction.

45. State Case No. 93 - 200 is a bar to re - litigation in

this administrative matter of w hether the School Board has a

legitimate nondiscriminatory reason for its determination not

to hire Dr. Weaver.

46. In State Case No. 93 - 200, the parties were identical

to the parties here. The state case was fully litigated and a

decision on the merits was rendered by the state court, and

affirmed by the First District Court of Appeal. Importantly,

in order to determine whether the School Board discriminated

against Dr. Weaver, the state jury had to consider the issue

of whether the School Board had a l egitimate,

nondiscriminatory reason for its decision not to employ Dr.

Weaver. The jury verdict and judgment in favor of the School

Board determined that the School Board had a legitimate,

nondiscriminatory reason for failing to hire Weaver from 1991

to 1 998.

47. As noted before, such a determination is a necessary

and critical part of the jury verdict in favor of the School

Board. If no legitimate, nondiscriminatory reason existed,

the verdict would have been entered in favor of Dr. Weaver.

This same issue, whether the School Board has a legitimate,

nondiscriminatory reason for failing to hire Dr. Weaver, is

also required for Dr. Weaver to prevail in the instant

administrative proceeding. Thus, the elements of collateral

estoppel are met and Dr. Weav er is precluded from relitigating

the issue here.

48. In other words, the School Board had a legitimate,

nondiscriminatory reason for its decisions not to hire Dr.

Weaver between 1991 and 1998. The same reasons continue to

exist today. The School Board is entitled to continue to

engage in actions adjudged lawful by refusing to employ Dr.

Weaver without being subject to an infinite number or

lawsuits.

49. Furthermore, Federal cases 4:97cv272 - RH and

4:00cv91 - WS also provide separate collateral estoppel ba rs to

the instant administrative action. The parties were identical

in those cases. Those cases, too, were fully litigated and

summary judgments on the merits were rendered by the U.S.

District Court, which is a court of competent jurisdiction.

Both of these cases determined that the School Board had a

legitimate, nondiscriminatory reason for its decision not to

hire Dr. Weaver from 1994 and 1995. Collateral estoppel bars

Dr. Weaver from relitigating that issue here in this forum.

50. Litigation is exp ensive. The School Board has

engaged in substantial litigation with Dr. Weaver since the

1990 - 1991 school year and has prevailed in each contest. The

concept of collateral estoppel is designed to bring finality

to disputes. Finality is a just and fair r esult when

litigation degrades to nothing more that a repetition of the

same old issue, an issue which has grown hoary with age. Dr.

Weaver has rights, but the taxpayers of Leon County have

rights also, and in this case, the balance of justice has

shifted in favor of the taxpayers. The law requires this

litigation to end.

RECOMMENDATION

Based upon the findings of fact and conclusions of law,

it is

RECOMMENDED that a final order be entered dismissing

Dr. Weaver's Petition.

DONE AND ENTERED this 23rd d ay of August, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of August , 2002.

COPIES FURNISHED:

C. Graham Carothers, Esquire

Ausley & McMullen

Post Office Box 391

Tallahassee, Florida 32302 - 0391

William R. Mabile, III, Esquire

Fuller, Johnson & Farrell, P.A.

111 North Calhoun Street

Tallahassee, Florida 32302

Denise Crawford, Agency Clerk

Florida Commission on Human Relation s

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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 th e 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.