02-002922 James B. Brown vs. North Florida Community College Status: Closed Recommended Order on Thursday, December 12, 2002.

Summary: The employer stated legitimate nondiscriminatory reasons for its actions. The Petitioner did not show these reasons to be pre-textual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES B. BROWN, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2922

)

NORTH FLORIDA )

COMMUNITY COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to n otice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Stephen F. Dean, held a formal hearing in the above - styled

case on October 1 - 3, 2002, in Tallahassee, Florida.

APPEARANCES

For Petitioner: James B. Brown, pr o se

Post Office Box 584

Madison, Florida 32340

For Respondent: Bruce A. Leinback, Esquire

Bird and Leinback, P.A.

Post Office Box 15556

1669 Mahan Center B oulevard

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Respondent discriminated in its hiring practices

against Petitioner because of his race, and whether Respondent

retaliated against Petitioner because he filed a charge of

discrimination, and a complaint.

PRELIMINARY STATEMENT

In October 2000, Petitioner filed a Charge of

Discrimination against Respondent. He filed an Amended Charge

of Discrimination on May 3, 2001. The Florida Commission on

Human Relations (FCHR or Co mmission) conducted an

investigation, determined there was no cause, and gave

Petitioner notice of its determination and of his right to a

hearing. Petitioner asked for a final hearing and the case

was forwarded to the Division of Administrative Hearings. The

case was noticed for hearing on October 1 through 3, 2002, by

a notice dated August 28, 2002. The case was heard as

noticed.

Petitioner testified in his own behalf and subpoenaed

Clyde Alexander, Respondent's athletic director and equity

coordinato r as a witness. Petitioner introduced Petitioner's

Exhibits numbered 1 - 18. The witnesses for Respondent were

Amelia Mulkey, Respondent's Dean of Administrative Services;

William Hunter, Director of Human Resources; Nancy McClellan,

Director of Student Su pport Services and the College Reach Out

Program; Mary Anne Wheeler, Director of Student Services; and

David Proctor, a history instructor and department chair for

the History and Social Sciences Department. Respondent

introduced Respondent's Exhibits num bered 1 - 36. 1 The five -

volume transcript was filed on October 31, 2002. Petitioner

and Respondent both filed post - hearing proposed recommended

orders which were read and considered.

FINDINGS OF FACT

1. On or about October 2000, Petitioner filed a Charge

of Discrimination with the FCHR. (The Charge of

Discrimination was FCHR No. 2101775). Thereafter, on or about

May 3, 2001, Petitioner filed an Amended Charge of

Discrimination (attached to Petition for Relief filed on

July 17, 2002). The essence of the Amended Charge was that he

had been discriminated against on the basis of race because

whites were employed in positions for which he had applied.

Petitioner also alleged retaliation and claimed that after he

filed his initial Charge of Discrimination, h e was not rehired

by Respondent as an adjunct instructor and he was denied

compensation.

2. The Commission conducted an investigation and on

June 4, 2002, issued a Determination: No Cause. The

Commission found that there was "no reasonable cause to

believe that an unlawful employment practice has occurred."

3. On the same date, the Commission also issued a Notice

of Determination: No Cause, in which it advised Petitioner of

his right to request an administrative hearing by filing a

Petition for R elief within 35 days of the Notice. Petitioner

was also advised that if he failed to request an

administrative hearing within 35 days "the administrative

claim under the Florida Civil Rights Act of 1997, Chapter 760,

will be dismissed pursuant to Section 760.11, Florida Statutes

(1992)." Petitioner did not file his petition for relief

until July 17, 2002, 43 days after the date of the Notice of

Determination.

4. In his Petition for Relief, Petitioner claimed that

he had been denied full - time employment by Respondent since

1998, and when complaints were filed, Respondent retaliated

against him by not rehiring him as an adjunct instructor and

denying him unemployment compensation.

5. Petitioner is an African - American male. He received

a bachelor of scien ce in mathematics education from Tuskegee

University in 1967; a master's degree in business management

from Rollins College in 1976; and, a Doctor of Education

degree from the University of Central Florida in 2000.

6. Petitioner worked in private industry in Central

Florida during the period 1972 - 1992. During portions of that

time, he also worked as an adjunct instructor at Valencia

Community College, Florida Southern, and Phillips College. He

was employed full - time as an instructor at Brevard Community

College from 1992 - 1996. From 1996 to 1998 he taught at Evans

High School in Orlando where he also served as the assistant

football coach. Petitioner also taught mathematics and

science classes to fifth to eighth grade students at

Madison Middle School for part of the 1998/1999 school year.

In 1998, Petitioner began teaching as an adjunct instructor at

North Florida Community College (College).

7. The College is located in Madison, Florida. It

serves the six counties of Hamilton, Madison, Jeffe rson,

Suwannee, Lafayette, and Taylor. The College's district is,

geographically, the largest community college district in

Florida.

8. Respondent offers a variety of programs ranging from

its college transfer program with an associate of arts (AA) or

associate of science (AS) degree to two vocational certificate

programs. Total enrollment varies from 3,000 to 4,000,

depending on vocational enrollments which are demand - based.

The current FTE (full - time equivalency) is just under 800.

Classes are taug ht at the campus in Madison and at public high

schools in each of the six counties in the service district.

9. Approximately 72 percent of the population of the

district is white and 28 percent is non - white. Enrollment at

the College mirrors to a large e xtent the population of the

district, except in the college transfer program, where the

African - American enrollment is approximately 20 percent, white

enrollment is 75 percent, and other groups, including

Hispanics, comprise five percent of the students.

10. The Hispanic population of Respondent's six - county

district has increased from 1,699 or 1.92 percent of the

population in 1990, to 5,019 or 4.73 percent of the population

in 2000. This represents a 195 percent increase. Statewide,

Florida's Hispani c population grew by 70 percent during the

same period.

11. Search committees are appointed by the president of

the College and efforts are made to ensure that a member of

Respondent's equity committee and a minority, if at all

possible, are assigned to e ach committee.

12. A search committee was appointed by Respondent for

each of the applications at issue in this case. Each search

committee was charged with reviewing the applications which

met the minimum qualifications for each position and then

dete rmining the most qualified individuals to be interviewed.

After the interviews, the search committee was to recommend

the best qualified individual to be offered the position.

13. Search committees are not told to interview

individuals of a particular race or gender, but they are

encouraged to give special consideration to minorities. If

the top two applicants are equal in terms of qualifications

and one is a minority candidate and the other is not, they are

told to recommend the hiring of the minority applicant over

the non - minority.

14. There are 23 full - time instructors in the AA and AS

degree programs at the College. Four of those are math

instructors. In 1998, Petitioner applied for a position as a

full - time mathematics instructor. There were n o vacancies in

the mathematics department at that time, nor has there been a

vacancy for a full - time mathematics instructor at the College

at any time since 1991.

15. In 1998, Respondent advertised for an instructor to

teach computer science courses in the Business Department.

The courses were designed to develop basic computer operation

skills, and focused primarily on Microsoft Office Suite

software.

16. At the hearing, Petitioner introduced a copy of a

letter which was sent to Mr. Doug Brown, a coll ege

administrator, in July 1998. In the letter, Petitioner stated

that he was "applying for a position in the business or

education disciplines." Petitioner discussed his private

sector employment experience and his college - level teaching

experience, but did not state whether he had any computer

science teaching or work experience.

17. The computer science vacancy was filled by a white

female who had a master's degree in business and 18 graduate

hours in computer science. She had been an adjunct compu ter

science instructor at the College for two years prior to being

hired as a full - time instructor. She also taught computer

science courses at Madison High School, and she had her own

computer business.

18. In 1999, Respondent advertised for the positio n of

program administrator for the North Florida Workforce

Development Board. At the time, Respondent was the

administrative entity and fiscal agent for the Workforce

Development Board. Petitioner applied for the position. None

of the applicants were in terviewed and the position was never

filled because it appeared that Respondent was going to be

replaced as administrative entity and fiscal agent, which, in

fact, occurred.

19. In December 1999, Respondent advertised to fill the

position of project coord inator for the College Reach Out

Program (CROP). The program targets economically and

educationally disadvantaged youth enrolled in grades 6 - 12 in

the schools in Respondent's service district, who have the

potential to finish college but who are likely, w ithout

intervention, to drop out of high school. The goal of the

program is to keep the students in high school, get them to

graduate, and enroll in college. Requirements for the

position of project coordinator included a bachelor of arts

degree from a f our - year college or university and three years

of experience working with alternative education programs, at

risk youth, or teaching in a youth program department.

20. Approximately 30 persons, including Petitioner,

applied for the position of CROP co ordinator. A five - member

search committee was appointed to review the applications and

select individuals to be interviewed. The members of the

search committee included Amelia Mulkey, who at the time was

Respondent's Director o f Financial Aid, Purchasi ng and

Reports; Mary Anne Wheeler, Director of Student Support

Services; and Clyde Alexander, an African - American who is

Respondent's athletic director and equity coordinator.

21. After reviewing the applications, the search

committee selected five indi viduals, including Petitioner and

Nancy McClellan, to be interviewed. When the interviews were

completed, the search committee chose not to rank the

applicants. Instead the members unanimously recommended Nancy

McClellan for the position.

22. Nancy McCle llan was a white female with a bachelor's

degree in psychology and a master's degree in social work. A

major factor in the selection committee's decision was her ten

years of experience working with at - risk adolescents at DISC

Village in Leon County, Flor ida, where she coordinated a

comprehensive vocational services program. Her work at DISC

Village included assessment, case management, community

networking, career exploration, providing employability skills

classes, coordinating with education and traini ng providers,

grant work, supervising staff, and counseling with parents.

23. In September 2001, Respondent advertised for a case

manager for the College Reach Out Program (CROP) in Lafayette

and Suwannee Counties. The qualifications for the position

were identified as a bachelor's degree in secondary education,

social work, or the social services field, with the provision

that working with at - risk youth could substitute for education

on a month - by - month basis.

24. Case managers are responsible for implementing the

CROP programs in the counties to which they are assigned.

They market, recruit, and provide services to students in the

counties. They work closely with teachers, guidance

counselors, students, and parents to enroll the students in

the p rogram and to ensure that the students remain in school

and graduate. The case managers work with the students on a

one - to - one basis. Experience has shown that a social work

case management background is an important asset in a CROP

case manager in Respo ndent's district. Students recruited for

CROP have a multitude of family issues in their family lives

which impact on their ability to remain in school. These

include poverty, abuse, neglect, divorce, mental health, and

disability issues, all of which so cial workers are taught to

identify, assess, and address. Case managers also educate

parents of students regarding available financial aid and

college preparation courses which their children should be

taking.

25. Eight people, including Petitioner, ap plied for the

position. Two individuals, Lynn Waller and Cheryl Chandler,

were interviewed.

26. Lynn Waller was selected for the position. She has

a bachelor's degree in social psychology. At the time she was

selected, she had been employed as a chi ldren's case manager

at Apalachee Center for Human Services, working with students

in the Madison County School System. She was responsible for

recruiting students, working with them, their parents,

teachers, and guidance counselors to assess needs, perfo rm

psychological assessments, and coordinate same.

27. In his application, Petitioner stated that he had

been employed as the CROP Coordinator by Respondent and by

Brevard Community College. In fact, Petitioner had never been

employed as the CROP Coor dinator by Respondent or by Brevard

Community College.

28. Petitioner had been employed as one of four part -

time facilitators by Respondent from January through June

2000. His duties were to recruit students, organize them into

groups, meet with the g roups two days per week and schedule

one Saturday field trip per month. Nancy McClellan elected

not to interview Petitioner for the case manager position,

based upon her experience with Dr. Brown as a CROP field

facilitator in 2000.

29. When Nancy McCl ellan assumed her role as CROP

Coordinator, Petitioner had not recruited any students from

Suwannee County. Eventually, he recruited a total of eight

students for CROP. By contrast, in April 2000, Lafayette

County had 23 students, Taylor County had 15, a nd Madison

County had 35 students. While Petitioner was case facilitator

for Suwannee County, Nancy McClellan received complaints from

Suwannee County regarding Petitioner's failure to bring

application forms to the County's schools, to pick them up

when they had been filled out, and to attend scheduled

meetings with students. Petitioner also failed to take the

eight students who enrolled in the program on any field trips.

By contrast, the other field facilitators were taking the

students on regular fiel d trips which was an important part of

motivating students to stay in school.

30. In June 2001, Respondent advertised for two

positions: learning resource coordinator and transfer advisor.

Both were grant - funded positions.

31. The learning resource coordinator is the manager of

the tutoring lab for developmental students. These are

students who do not have the placement test scores to begin

college level work. In the lab they receive assistance in

developing their skills in mathematics and English. The

learning resource coordinator supervises the transfer advisor,

who works with students in developing skills in English, and

the retention advisor, who works in developing students'

mathematics skills. The learning resource coordinator also

supervise s and trains tutors, peer mentors, and does some

individual tutoring. In addition to the requirement for a

four - year degree, the advertisement for the position stated

that language proficiency in Spanish was preferred.

32. The preference for Spanish p roficiency was based

upon the growing Hispanic population on Respondent's campus

and the need for a staff person who could tutor the students

in their own language, as well as to speak with the families

who often accompany them to campus. Experience had s hown that

Hispanic students were better able to grasp concepts, as in

mathematics, when they received tutoring in their native

language.

33. There were 18 applicants for the position of

learning resource coordinator, among them Petitioner.

Petitioner was not selected to be interviewed by the search

committee because he did not have proficiency in Spanish. The

three individuals who were chosen to be interviewed were

proficient in Spanish: two were native Spanish speakers and

one had a degree in Spanis h.

34. Maria Elizabeth Gonzalez was selected to fill the

position. She was a native of Colombia and a native Spanish

speaker. She identified herself on her application as

Hispanic. At the time she was selected, she had been working

for the previous t hree years as a tutor and as a lab

assistant.

35. The transfer advisor position is a grant - funded

advisor position in the tutoring lab for developmental

students. The transfer advisor works with developmental

students in English; the retention advisor works with those

students in mathematics.

36. The advertisement for the transfer advisor listed as

one of the qualifications a bachelor's degree with an emphasis

in English.

37. There were 20 applicants for the Transfer Advisor

position. Petition er was one of the applicants. Four

individuals were chosen by the selection committee to be

interviewed; all had an undergraduate degree with an emphasis

in English. Petitioner was not chosen to be interviewed

because his degree did not have an emphasis in English.

38. Carmen Renee Perez was selected to fill the

position. She had a bachelor's degree in English and two

years of graduate work in English. She had also taught

English as a second language. On her application she

identified herself as His panic/Cuban/Caucasian.

39. In March 2000, Respondent advertised to fill the

position of instructor of business and economics. The

advertisement stated that the duties of the position would

include teaching courses in business, management, accounting,

finance, business law, and economics. The minimum

requirements included an MBA from an accredited institution or

a master's degree with a minimum of 18 semester hours of

subject specific graduate course work.

40. There were between 20 and 30 applicant s for the

position. The search committee chose to interview five of the

applicants. Among them were Petitioner; Ellen Stevens, a

white female; and Scott Tori, a white male. Following the

interviews, the search committee concluded that Dr. Brown had

"gre at math credentials," but his business and economics

credentials "were considerably less" than some of the other

applicants. The committee concluded that both Ellen Stevens

and Scott Tori were better qualified than Petitioner for the

position. Ellen Stev ens had a masters in business

administration, and Scott Tori had a doctorate in economics.

Scott Tori was offered the position and he accepted. In

addition to his Ph.D., he had a master's degree in economics,

and a bachelor's degree in business administr ation, with an

emphasis in finance. At the time he was hired, Tori was an

assistant professor of economics and finance at Thomas

University.

41. In the late winter of 2002, Respondent advertised to

fill a vacancy caused by the retirement of the chemis try and

physics instructor. The advertisement stated that the

successful candidate would teach chemistry courses through the

sophomore level, a year - long organic chemistry sequence, an

algebra and calculus - based physics course sequence, and

physical scien ce courses, as needed.

42. Petitioner submitted a letter application to

Respondent dated March 2, 2002, for a

"mathematics/physics/science instructor" position. This was

not the title of the open position. In his letter, Petitioner

identified himself as a "professor of mathematics."

Petitioner was considered for the position but not selected.

43. Terrence M. Zimmerman was determined by the search

committee to be the best qualified to fill the position. He

had a bachelor's degree in chemistry cum laude , a master's

degree in science education, and all but a dissertation for a

doctorate in chemistry. He had been an adjunct instructor in

chemistry at Tallahassee Community College, an adjunct in

chemistry and environmental science at Santa Fe Communi ty

College and, at the time he was hired, he was teaching

chemistry and environmental science for Respondent as an

adjunct. From 1988 until the time he was hired, he also

taught chemistry, environmental science, and general science

at Taylor County High S chool in Perry, Florida.

44. Respondent presented credible evidence for each of

the positions for which Petitioner applied establishing a non -

discriminatory reason for Respondent's decision to hire

someone other than Petitioner.

45. In 1998, Petit ioner began teaching mathematics

courses for Respondent as an adjunct instructor (Adjunct).

Adjunct instructors (Adjuncts) are part - time faculty members

who are hired by Respondent on a semester - by - semester basis to

teach specific classes in subjects in w hich they are qualified

to teach. Adjuncts teach classes at various locations

throughout Respondent's six - county district. They are

employed on an as - needed basis and execute a new contract for

each semester they are hired.

46. Each semester, Respond ent publishes a class schedule

for the following semester. If Respondent has confirmed that

a particular adjunct is going to be teaching a particular

class, the adjunct's name will appear on the schedule. If an

adjunct has not been confirmed to teach a p articular class,

the designation of the instructor for that class will appear

as "staff."

47. Petitioner was identified by name on the class

schedule for one class each in the Spring and Fall of 1999,

two classes in the Spring of 2000, and one class in the Fall

of 2000. He taught classes in which the name of the

instructor appeared on the class schedules as "staff" as

follows: one class in the Fall of 1998, two classes in the

Summer of 2000, and two classes in the Fall of 2000.

48. The departmen t chair has the discretion to determine

which individuals will be hired to teach as adjuncts.

Generally, if there is an adjunct who is local, competent, and

willing, he or she will be rehired. There is no prescribed

procedure for contacting adjuncts. So metimes the adjuncts

contact the department chair; sometimes the department chair

contacts the adjuncts.

49. In the Fall semester of 2000, David Proctor, a

history professor, was department chair for Respondent's

entire AA program. In addition to teac hing three classes, one

of which was in Hamilton County, he was responsible for

scheduling full - time faculty instructors and 34 adjuncts to

teach courses in the AA program. He was also responsible for

preparing budgets for each department, evaluating facu lty, and

preparing class schedules.

50. David Proctor intended that Petitioner would teach

some of the introductory and intermediate algebra and

developmental arithmetic classes during the 2001 Spring

Semester. He did not hear from Petitioner in the F all of 2000

regarding Petitioner's interest in teaching for the 2001

Spring Semester while he was preparing the schedule for the

semester; therefore, he used the term "staff" in place of the

instructor's name for four classes, intending that Petitioner

wou ld teach some of them.

51. In October 2000, after the schedule for the Spring

2001 semester was published, Petitioner approached Proctor on

the sidewalk outside the general classroom building on

Respondent's campus and asked why his name was not in the

schedule. Proctor assured Petitioner that he had every

intention of having Petitioner teach during the Spring

semester and suggested that they meet and decide what classes

Petitioner would teach.

52. Proctor was subsequently unable to meet with

Petiti oner as scheduled, so he left a note for Petitioner in

which he highlighted classes on the schedule and asked

Petitioner to tell him which two classes he would like to

teach. This occurred in late October or early November.

53. In December 2000, Pro ctor saw Petitioner outside

Proctor's office in the adjunct mailbox area on campus and

remembered that he had not heard from Petitioner regarding

Petitioner's choice of classes to teach during the Spring

semester. Proctor approached Petitioner and suggest ed they

look at the schedule together and identify the classes

Petitioner wanted to teach. Petitioner informed Proctor that

he was looking elsewhere for employment and he would not be

teaching for Respondent. Proctor was surprised, but wished

Petitioner well and offered to write letters of recommendation

for him.

54. When Petitioner informed Proctor that he did not

intend to teach for Respondent, Proctor asked a Hispanic

adjunct instructor, Ephraim Bonilla, to pick up these

additional courses.

55. T he only subsequent contact Petitioner made with

Respondent regarding teaching again as an adjunct was a single

telephone call at an unspecified date to the new mathematics

department chairman, Mr. Harris, during which Petitioner

inquired if there were any courses available. Harris told him

there were none. Petitioner asked another individual to call

with the same question. The individual Petitioner asked to

call reported to Petitioner that he had met with the same

response.

56. When he prepared the s chedule for the Summer of

2001, Proctor assumed that Petitioner was no longer interested

in teaching for Respondent, and when he did not hear from him,

he did not put his name in the schedule.

57. When Proctor prepared the schedule for the 2001

Spring semester he was unaware that Petitioner had filed a

charge of discrimination with the Commission. He was aware of

it by the time he prepared the schedule for the Summer of

2001, but that knowledge played no role in his decision not to

list Petitioner by n ame as an adjunct instructor when he

prepared the class schedule for the Summer of 2001.

58. Petitioner filed a claim for unemployment

compensation benefits effective December 17, 2001, because he

was not employed by the College as an adjunct instructo r

during the 2001 Spring semester.

59. When Respondent received a copy of Petitioner's

claim for unemployment compensation, Respondent's Director of

Human Resources, Bill Hunter, spoke with David Proctor and

learned from him that Petitioner had rejecte d the opportunity

to teach during the 2001 Spring Semester. Bill Hunter

provided this information on Respondent's copy of the claim

and returned it to the Agency for Workforce Innovation.

60. Petitioner's claim for unemployment compensation was

subseq uently rejected by state officials and he appealed.

Following a telephone hearing during which David Proctor and

Petitioner testified, the appeals referee concluded that

Petitioner had refused Respondent's offer of an adjunct

teaching position for the 200 1 Spring Semester and, therefore,

was properly barred from receiving unemployment compensation

benefits. Petitioner subsequently sought review by the

Unemployment Appeals Commission, which affirmed the decision

of the appeals referee.

61. In August 20 00, Petitioner, and several other

college employees, filed a complaint against Respondent with

the U.S. Department of Education, Office for Civil Rights

(OCR), alleging that Respondent was discriminating against

students on the basis of race with regard to recruitment and

financial aid. The complaint also alleged that Respondent was

discriminating on the basis of race in its hiring practices.

62. In a letter dated September 13, 2000, OCR notified

Respondent's former president, Dr. Beverly Grissom, of the

Complaint. In an attachment to the letter, OCR advised

Dr. Grissom that "OCR does not reveal the name or other

identifying information about an individual unless it is

necessary for the completion of an investigation or for

enforcement activit ies against an institution that violates

the laws, or unless such information is required to be

disclosed under the FOIA or the Privacy Act."

63. OCR subsequently determined that there was

insufficient evidence to support the student financial aid and

recruitment allegations. OCR also determined that there was

no statistically significant difference between the number of

African - American administrators and faculty members actually

employed and the expected employment rate based on the

relevant labor ma rket. OCR, therefore, concluded that it

lacked jurisdiction to further investigate the matter.

Finally, OCR referred the individual employment allegations in

the complaint to the U. S. Equal Employment Opportunity

Commission because it did not have juris diction over such

claims. Consistent with its September 13, 2000, letter to

Dr. Grissom, OCR did not identify the individual complainants,

and Respondent was not otherwise aware of this until the

hearing in this case that Petitioner had been one of the

c omplainants.

64. Respondent's decisions with regard to filling the

vacancies for which Petitioner applied were not based on race,

nor were they based on any retaliatory motive.

65. Respondent's decision regarding the absence of

Dr. Brown's name fr om the Spring 2001 class schedule was not

based upon a retaliatory motive, nor was there a retaliatory

motive involved in informing the unemployment compensation

office that Petitioner had refused the offer of a position as

an adjunct instructor for the 20 01 Spring Semester.

CONCLUSIONS OF LAW

66. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

67. Respondent moved to dismiss the instan t complaint

because Petitioner filed his Petition for Relief 43 days after

the date of the Notice of Determination: No Cause, and his

request for an administrative hearing was untimely. It is

well settled that a forum has jurisdiction to consider a

motio n to dismiss for lack of jurisdiction.

68. Section 760.11(7), Florida Statutes, provides in

pertinent part as follows:

(7) If the commission determines that

there is not reasonable cause to believe

that a violation of the Florida Civil

Rights Act of 1992 has occurred, the

commission shall dismiss the compliant.

The aggrieved person may request an

administrative hearing under ss. 120.569

and 120.57, but any such request must be

made within 35 days of the date of

determination of reasonable cause and any

s uch hearing shall be heard by an

administrative law judge and not by the

commission or a commissioner. If the

aggrieved person does not request an

administrative hearing within the 35 days,

the claim will be barred.

69. Pursuant to Section 760.11(7), F lorida Statutes,

Petitioner's claim is barred as a matter of law and the

Division of Administrative Hearings has no jurisdiction over

this matter. However, because the Commission in the past has

failed to enter its final order dismissing untimely claims,

this Order will consider the merits of Petitioner's claims.

70. Under the provisions of Section 760.10, Florida

Statutes, it is unlawful employment practice for an employer:

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

to hire any individual, or otherwise t o

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.

71. It is also an unlawful emp loyment practice for an

employer "to discriminate against any person because that

person has opposed a practice which is an unlawful employment

practice under this section, or because that person has made a

charge, testified, assisted, or participated in a ny manner in

an investigation, proceeding, or hearing under this section."

Section 760.10(7), Florida Statutes.

72. The Commission and the Florida Courts have

determined that federal discrimination law should be used as

guidance when construing the provi sions of Section 760.10,

Florida Statutes. See Brand v. Florida Power Corporation , 633

So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of

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

1991).

73. Petitioner has the burden of proof in this case to

show that he was discriminated against on the basis of race

and unlawful retaliation. See St. Mary's Honor Center v.

Hicks , 509 U.S. 502 (1993). There is, however, a shifting

burden of persuasion. McDonnell Douglas Corporation v. Green ,

411 U.S. 792 (1973).

74. Petitioner must establish a prima facie case of

discrimination; once he has done so, Respondent must

articulate some legitimate, non - discriminatory reason for the

employment action. When Respondent does so, Petitioner must

prove tha t Respondent's reason was a mere pretext for unlawful

discrimination. McDonnell Douglas Corporation v. Green ,

supra .

75. To establish a prima facie case of unlawful

discrimination on the basis of race in this case, Petitioner

must show that (1) he is a m ember of a protected group; (2)

who was qualified for the positions for which he applied; (3)

who suffered an adverse employment action; and (4) under

circumstances giving rise to an inference of discrimination.

See McDonnell Douglas Corporation v. Green , supra ; St. Mary's

Honor Center v. Hicks , supra .

76. To establish a prima facie case of retaliation,

Petitioner must prove: (1) protected opposition to

discrimination; (2) an adverse employment action; and (3) a

causal connection between the protected ac tivity and the

adverse employment action. Little v. United Technologies , 103

F.3d 956 (11th Cir. 1997).

77. With regard to Petitioner's allegations regarding

discrimination in hiring, Petitioner showed he was a member of

a protected class. He was basi cally qualified for all of the

positions with exception of the chemistry instructor position.

He lacked the ancillary language requirement (Spanish) for

one position and the emphasis in English in another position.

However, Respondent presented evidence showing a legitimate

non - discriminatory reason for hiring each of the persons it

hired, and in one instance, that no one was hired and the

position was eliminated.

78. If Petitioner establishes a prima facie case, the

burden shifts back to Respondent to articulate a legitimate

business reason for its actions. Here, Respondent's burden is

"exceedingly light." Meeks , supra . If the employer

articulates a legitimate non - retaliatory or non - discriminatory

reason for the action, the presumption raised by the prima

facie case drops from the case. Texas Department of Community

Affairs v. Burdine , 450 U.S. 248, 255, n. 10 (1981). The

burden of persuasion then shifts to plaintiff to show that the

articulated reasons were merely a pretext for unlawful

discrimina tion. See Clark v. Huntsville City Board of

Education , 717 F.2d 525 (11th Cir. 1983). Petitioner did not

show that the reasons set forth for Respondent's hiring

decisions were pretextual.

79. With regard to Respondent's allegations of

retali ation in denying him employment as an adjunct in the

Spring semester of 2001, the better evidence shows that there

was no adverse employment action. Respondent did not deny

Petitioner the opportunity to teach. On the contrary,

Respondent, through David P roctor, made reasonable efforts to

hire Petitioner as an adjunct instructor for the Spring

semester. Those efforts were rejected by Petitioner who, in

December 2000, informed David Proctor that he would not be

available to teach. Petitioner has, therefor e, failed to

establish a prima facie case of retaliation with regard to

this issue.

80. Further, to prove causation in a retaliation

context, Petitioner must show "that the protected activity and

the adverse action are not completely unrelated." Meeks v.

Computer Association, Interiors , 15 F.3d 1013, 1021 (11th Cir.

1994).

81. David Proctor was unaware of either of Petitioner's

discrimination claims when he prepared the 2001 Spring

semester schedule. Respondent's management was unaware of

Petitioner's r ole in the 2000 OCR Complaint until the hearing

in this case. The instant claim was filed after these events.

Petitioner failed to prove a causal connection between the

alleged failure to continued his employment as an adjunct and

a protected activity.

82. To the extent that Petitioner may have claimed

continuing retaliation, the only time Petitioner ever

contacted Respondent after the Fall of 2000 regarding adjunct

employment opportunities, was when he called the new

mathematics department chairman to inquire about adjunct

vacancies and was told that there were no vacancies. A call

by another individual, at Petitioner's request, garnered the

same response. Petitioner chose not to contact David Proctor

regarding the 2001 Summer semester schedule, and Proctor did

not contact him because Petitioner had stated in December 2000

that he was going to be pursuing other employment

opportunities.

83. Having presented no evidence to show that any of

Respondent's articulated reasons for the actions were pretex ts

for unlawful discrimination, Petitioner has failed in his

burden of proof with regard to this last issue.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED:

That the Florida Commission on Human Relat ions enter its

final order dismissing the case.

DONE AND ENTERED this 12th day of December, 2002, in

Tallahassee, Leon County, Florida.

__________________________________

STEPHEN F. DEAN

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 12th day of December, 2002.

ENDNOTE

1/ Respondent introduced Exhibits 1 - 34 at the hearing. At

the conclusion of the hearing, the Administrative Judge

granted Respondent leave to file two post - hearing exhibits.

The first was correspondence sent to Respondent by the Office

of Civil Rights of the U. S. Department of Education along

with the affidavit of the custodian of records; the second was

census data on the Hispanic population in Florida and in

Respondent's six - county district.

COPIES FURNISHED :

James B. Brown

Post O ffice Box 584

Madison, Florida 32340

Bruce A. Leinback, Esquire

Bird & Leinback, P.A.

Post Office Box 15556

1669 Mahan Center Boulevard

Tallahassee, Florida 32317

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkwa y, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

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 from the date of this Recommended Order. Any

exceptions to this Recommended Order shall be filed with the

agency that will issue the Final Order in this case.