02-004527 Ruthye Smith vs. Brevard County School Board Status: Closed Recommended Order on Thursday, May 22, 2003.

Summary: Petitioner claimed employment discrimination when she was not promoted to administrative position. Failed to present prima facie case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUTHYE SMITH, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4527

)

BREVARD COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

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

on March 10, 2003, in Viera, Florida.

APPEARANCES

For Petitioner: Levi G. Williams, Esquire

Fertig & Gramling

200 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

For Respondent: Harold T. Bistline, Esquire

Stromire, Bistline, Miniclier & Griffith

1970 Michigan Avenue, Building E

Post Office Box 8248

Cocoa, Florida 32924 - 8248

STATEMENT OF THE ISSUE

Whether Petitioner, Ruthye Smith, was discriminated against

on the basis of her race when s he was not selected for two

administrative positions with the Brevard County School Board in

1998.

PRELIMINARY STATEMENT

On September 10, 2002, the Florida Commission on Human

Relations advised Petitioner that it had made a determination

that there was no reasonable cause to believe that an unlawful

employment practice had occurred in response to her complaint

that she had been the victim of employment discrimination due to

her non - selection for positions with the Brevard County School

Board in 1998.

The Fl orida Commission on Human Relations advised

Petitioner that she had the right to request an administrative

hearing within 35 days of the notification of the determination

of no reasonable cause.

On October 15, 2002, Petitioner filed her Petition for

Relief from an Unlawful Employment Practice with the Florida

Commission on Human Relations. On November 19, 2002, her

Petition for Relief was transmitted by the Florida Commission on

Human Relations to the Division of Administrative Hearings,

requesting assignm ent of an Administrative Law Judge to conduct

all necessary proceedings.

On November 19, 2002, an Initial Order was sent to both

parties. On December 9, 2002, the case was scheduled for final

hearing on January 27, 2003, in Viera, Brevard County, Florida.

On January 17, 2003, Petitioner filed a Motion for Continuance

that was granted on January 22, 2003. The final hearing was

rescheduled for March 10, 2003.

The final hearing took place as rescheduled on March 10,

2003. Petitioner testified on her own be half and presented

14 exhibits that were admitted into evidence and marked

Petitioner's Exhibits 1 through 14. Respondent presented two

witnesses: William Hall and Betty Dunn. Respondent presented

four exhibits that were admitted into evidence and ma rked

Respondent's Exhibits 1 through 4.

At their request, the parties were given 20 working days

from the filing of the transcript of the proceedings to file

proposed recommended orders. The two - volume Transcript of

Proceedings was filed on April 14, 2003 . On May 1, 2003,

Respondent requested an extension of time to file proposed

recommended orders. The time for filing proposed recommended

orders was extended until May 19, 2003. Each party filed a

Proposed Recommended Order; each was thoughtfully consid ered by

the undersigned Administrative Law Judge.

FINDINGS OF FACT

1. Respondent, Brevard County School Board, is the public

entity that operates the public schools in Brevard County,

Florida, and is the employer of teachers, administrators and

other pers onnel involved in operating public schools.

2. Petitioner, Ruthye Smith, is an African - American

female, who has been employed by Respondent as a teacher since

1973.

3. Respondent utilizes a state - approved Human Resource

Management and Development Plan, known by the acronym "HRMD,"

for the training, evaluation, and selection of principals,

assistant principals, and deans.

4. HRMD utilizes an interview process for personnel

selection called "targeted selection" which identifies

"dimensions" for each emplo yee position that are developed

through an in - depth job analysis of each position.

5. The targeted selection interview process is designed to

evaluate a candidate's qualifications for a position by

assessing the candidate's responses to questions designed to

reveal the candidate's ability to fulfill requirements of the

dimensions identified for the particular position.

6. "Targeted selection" identifies the following seven

dimensions for the assistant principal position: communication,

decisiveness, lead ership, energy and tolerance for stress,

planning and organization, control/monitoring, and

technical/professional knowledge.

7. A candidate for a principal, assistant principal or

dean position is questioned/interviewed by two certified

targeted selectio n interviewers in one - on - one interviews. These

interviewers are principals or former principals who have been

promoted to director or assistant superintendent and who have

received specific training in utilizing the targeted selection

process.

8. Each interviewer rates and scores the candidate in

separate interviews, evaluating the candidate's responses to

certain questions from an interview guide that provides

questions directly related to the seven dimensions. The result

is a "dimension rating" with a range from a low of 1 to a high

of 5 in each of the seven dimensions.

9. After each interviewer has concluded his or her

interview, the interviewers confer and form a consensus of the

dimension ratings generated by the candidate's responses and

prepare a data integration form which documents a consensus

dimension rating given the candidate by the interviewers for

each targeted dimension.

10. A candidate for selection to an administrative

position such as principal, assistant principal, or dean is not

deemed qualified unless the candidate scores at least a

consensus 3 in each of the seven targeted dimensions.

11. Respondent typically pursues three initial steps in

the personnel selection process: advertising the position,

evaluating applicants to see if they meet basic criteria, and

giving candidates who meet the basic criteria targeted selection

interviews.

12. In the instant case, in April 1998, Petitioner applied

for two advertised assistant principal positions. Having met

the criteria for consid eration, Petitioner was given two

targeted selection interviews on June 10, 1998. The data

integration form prepared by the interviewers records a

consensus score of 1 in each of the seven targeted dimensions.

Based on the targeted selection interviews a nd the resultant

consensus scores, Petitioner did not score the consensus 3 in

each of the seven targeted dimensions required to qualify for

consideration for the assistant principal positions.

13. Utilizing the same targeted selection interview

proces s, Respondent identified other qualified candidates who

were selected for the positions; both of the candidates selected

were Caucasian females.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction of the subject matter of and t he parties to this

proceeding. Subsection 120.57(1), Florida Statutes.

15. Subsection 760.10(1)(a), Florida 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,

or privileges of employment because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

16. Florida cour ts have determined that federal

discrimination law should be used as a guidance when construing

provisions of Section 760.10, Florida Statutes. Harper v.

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

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

1205 (Fla. 1st DCA 1991).

17. 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).

18. This analysis illustrates that a petitioner has the

burd en of establishing, by a preponderance of evidence, a prima

facie case of discrimination. If that prima 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

pla intiff's explanation of intentional

discrimination.

509 U.S. at 519.

19. In the Hicks case, the Court 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

demon strate a discriminatory motive for the adverse employment

action taken.

20. 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

de spite her qualifications she was not selected for the position

(she was subjected to an adverse employment decision); that

someone was selected who had similar qualifications who was not

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

simi larly 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); Cani no v. U.S. E.E.O.C. , 707 F.2d 468, (11th Cir. 1983).

21. There is no dispute in this case that Petitioner is a

member of a protected class or group, that an adverse employment

decision was made, and that individuals were selected for the

positions who wer e not members of the protected group.

22. Petitioner failed to demonstrate that she was

qualified for the positions. In fact, the evidence clearly

demonstrates that she failed to accomplish the minimum consensus

scores in each of the seven targeted dimen sions in the

interviews designed to qualify candidates. In addition,

Petitioner failed to establish any causal connection between her

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

credible evidence was presented that her failure to be selecte d

for the positions was because of her race. 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).

23. While Petitioner failed to establish a prima fac ie

case, Respondent offered legitimate, non - discriminatory

explanations for its failure to select Petitioner for the

positions she sought. Petitioner had failed to meet the minimum

qualifications for the positions. It hired individuals who had

scored at least a consensus 3 in each of the targeted dimensions

and successfully completed the selection process.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commiss ion on Human Relations dismissing the Petition for Relief

filed in this case.

DONE AND ENTERED this 22nd day of May, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Adminis trative 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 22nd day of M ay, 2003.

COPIES FURNISHED :

Harold T. Bistline, Esquire

Stromire, Bistline, Miniclier & Griffith

1970 Michigan Avenue, Building E

Post Office Box 8248

Cocoa, Florida 32924 - 8248

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 A palachee Parkway, Suite 100

Tallahassee, Florida 32301

Levi G. Williams, Esquire

Fertig & Gramling

200 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkw ay, 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 should be filed with the agency that

will issue the Final Order in this case.