03-002493 Kirk Cummings vs. University Of Florida Status: Closed Recommended Order on Thursday, February 12, 2004.

Summary: Case discusses the difference between an unpaid intern and an employee and the difference between failure to hire and a work situation. Racial discrimination not proven. Timeliness of Charge of Discrimination discussed in footnote.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIRK CUMMINGS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2493

)

UNIVERSITY OF FLORIDA, )

)

Respondent. )

_ )

RECOMMENDED ORDER

This cause came on for a disputed - fact hearing before Ella

Jane P. Davis, a duly - assigned Administrative Law Judge of the

Division of Administrative Hearings, on November 3 - 4, 2003, in

Gainesville, Florida.

APPEARANCES

For Petitioner: Kirk Cummings, pro se

Post Office Box 140508

Gainesville, Florida 32614

For Respondent: Charles M. Deal, Esquire

University of Florida

123 Tigert Hall

Gainesville, Florida 32611 - 2703

STATEMENT OF THE ISSUE

Is Respondent, as an employer, guilty of an unlawful

em ployment practice(s) against Petitioner as its employee

through discrimination by race. 1/

PRELIMINARY STATEMENT

Petitioner filed a Charge of Employment Discrimination with

the Florida Commission on Human Relations on July 30, 2002, and

an amendment theret o on January 1, 2003. On or about June 2,

2003, the Commission entered its Determination: No Cause.

Petitioner timely filed his Petition for Relief, and on or about

July 10, 2003, the case was referred to the Division of

Administrative Hearings.

The int erim progress of the case before the Division is

adequately revealed by the record.

At the commencement of the disputed - fact hearing on

November 3 - 4, 2003, Petitioner's pending Motion to Compel was

orally denied, and Respondent's pending Motion to Permit

Telephonic Testimony of Lisa Severy was granted with appropriate

parameters established.

Petitioner presented the oral testimony of Helda Montero

and Dr. Carlos Hernandez, and the testimony of Lisa Severy by

deposition (P - 12). Petitioner had Exhibits P - 1 through P - 20

admitted in evidence. 2/

Respondent presented the oral testimony of Petitioner, Lisa

Severy (by telephone), Dr. Carlos Hernandez, and Helda Montero.

Respondent offered no exhibits.

Petitioner took the stand on his own behalf in rebuttal.

The two - volume Transcript was filed with the Division on

November 24, 2003.

Petitioner timely filed his Proposed Recommended Order.

Respondent's Proposed Recommended Order was filed four days

late, but Petitioner has filed no motion to strike. Therefore ,

Respondent's proposal has also been considered.

FINDINGS OF FACT

1. Petitioner is an African - American male.

2. Respondent is the Career Resource Center at the

University of Florida (CRC). The CRC specializes in developing

individuals' skills in ca reer counseling, administering

vocational assessments, presenting workshops, assisting in job

searches, critiquing resumes, and assisting students with career

plans. CRC is within the University's Division of Student

Affairs. Within CRC itself, there are three divisions dealing

respectively with career development, experiental education, and

job search issues. CRC's administrative group manages the three

internal divisions.

3. CRC is the "Harvard" or "Yale" for training career

counselors, so the opport unity to train at CRC to be a career

counselor greatly enhances trainees' skills, resumes, and

hireability.

4. CRC utilizes full - time employees, mostly in the

administrative group; graduate assistants; and interns. Both

graduate assistants and interns a re in training to become career

counselors. Some witnesses considered the terms "assistant" and

"intern" to be interchangeable. The greater weight of the

credible evidence is that they are not.

5. Graduate assistantships at CRC have a student fee

waive r attached to them. Graduate assistants are paid at an

hourly rate of pay negotiated annually on an academic year basis

by their union. Typically, graduate assistantships are funded,

in whole or in part, by specific departments of specific

academic colle ges within the University, and therefore those

departments/colleges specify the qualifications for hiring

applicants for the graduate assistant positions at CRC.

6. Internships at CRC fall into paid and unpaid

categories. Paid internships do not entitle the intern to a fee

waiver, but they are paid an hourly wage set by the CRC. Unpaid

internships have no fee waiver or hourly wage associated with

them. Interns receive undergraduate or graduate credit,

regardless of whether they are paid or unpaid.

7. Graduate assistants and interns do not share the same

program, but each program usually requires 40 hours of work per

week for one semester or 20 hours of work per week for two

semesters. Interns and assistants are usually subject to the

same work standa rds.

8. Assistantship positions were required to be advertised,

giving the number of required hours and the hourly rate of pay

for those hours. Petitioner never applied for an assistantship.

9. At all times material, CRC had a variety of ways of

advert ising for interns: word of mouth, fliers, and

advertisements. At all times material, CRC fliers did not

indicate the number of internships available; did not specify

whether any internship was paid or unpaid; and did not include

anything about assistantsh ips. The fliers were intentionally

vague in the foregoing ways because CRC staff wanted to be able

to use them year after year, even though the number of paid and

unpaid internships varied from year to year with fluctuations in

the funding and space avail able. The fliers were changed to be

more specific the year after the year in which Petitioner

applied.

10. Petitioner responded to one of the internship fliers

in June 2001.

11. For the academic year 2001 - 2002, CRC counseling

internships and assis tantships required a two - semester

commitment from the applicant. CRC teaching internships

required only a commitment to teach one class for a full

semester.

12. Each semester is made up of 16 weeks. An academic

year equals 32 weeks.

13. The number of paid interns accepted by the CRC per

year is dependent on available funding sources. The number of

unpaid internships depends, from year to year, upon the needs of

the CRC career development team and the space available to CRC

for counseling purposes.

14. Most internships in career development are unpaid

internships, but students are glad to get them anyway, because

it is the counseling experience and resume status that is

valuable. Also, the clinical practicum requirements inherent in

graduate studen t programs often can be fulfilled while earning

academic credit in the teaching and/or counseling components of

a CRC internship.

15. In the summer of 2001, applicants for internships and

assistantships were required to submit a resume and a statement

of what they hoped to gain from their CRC experience. They were

then interviewed. After the review, CRC employees either

extended an offer or did not.

16. Throughout the summer of 2001, internship applicants

usually would be told whether they were being offered a paid

internship only at the point of interview and/or offer by the

CRC.

17. Through the summer of 2001, CRC used an "open until

filled" method of filling internship positions. CRC's hiring

process then was not to interview everyone who applie d over a

period of several months and then select candidates from the

accumulated pool of interviewees all at one time, based on a

comparison of their qualifications. Instead, CRC's process was

to interview candidates sequentially, as each person applied,

and to hire him or her sequentially.

18. In June 2001, Helda Montero, supervisor of the CRC's

teaching component, reviewed Petitioner's resume and completed a

telephonic interview with him the night before he interviewed

with the full CRC team, becaus e she had a conflict with the

scheduled team interview time. She concluded Petitioner was

qualified to be an intern. She was unsure, but "felt" that she

had told him he was interviewing for an unpaid internship.

19. The next day, Petitioner interviewed with the

remainder of the CRC team, headed by Dr. Carlos Hernandez, then -

Associate Director of the CRC. Afterward, Dr. Hernandez

recommended to the CRC's Director that Petitioner be hired;

hiring was approved; and a few days later, Dr. Hernandez offered

Petitioner an unpaid internship for two semesters, the academic

year August 2001 through May 2002.

20. It is not clear whether Petitioner was told at the

team interview, or a few days later, when the offer of an unpaid

internship was extended by Dr. Hern andez, or whether he was told

at both times, but at one or more times, Dr. Hernandez told

Petitioner that he was interviewing for/being offered an unpaid

internship.

21. In previous years, CRC had utilized between one and

four unpaid interns. For the Au gust 2001 - 2002 academic year,

there was only one unpaid internship, the one offered to

Petitioner. At the time Petitioner was offered an unpaid

internship, there were no vacant paid internships available.

22. At all times material, Petitioner was a gradu ate

student of the University of Florida's Department of Psychology

in the College of Arts and Sciences. At the time he applied to

CRC, Petitioner had completed his master's degree in psychology.

He previously had done a lot of volunteer counseling, but i t was

counseling outside the area of career counseling. Also, he had

never filled a full - time counseling position of any kind.

23. For the 2001 - 2002 academic year, the CRC, had funding

for only two paid internships.

24. One paid internship was all, or partially, funded by

the College of Education. Therefore, only graduate students of

the College of Education's Department of Counselor Education

were eligible to fill it. Petitioner did not have those

qualifications.

25. The other paid internship was o pen to the general

graduate student population, including Petitioner.

26. However, both paid internships had been offered to,

and been filled by, Caucasian students as of May 24, 2001, and

Petitioner did not even apply to the CRC until June 15, 2001.

Th erefore, when Petitioner had applied, there were no longer any

unfilled paid internships available. When Dr. Hernandez

extended an offer of a two - semester unpaid internship to

Petitioner on June 22, 2001, there was only the single unpaid

internship availa ble. Clearly, the CRC could have waited until

a Caucasian applicant turned up, but staff offered the sole

unpaid internship to Petitioner, an African - American.

Petitioner was the only African - American hired in that hiring

sequence.

27. When, on or about June 22, 2001, Dr. Hernandez offered

Petitioner the sole unpaid internship available, Petitioner

expressed disappointment. Dr. Hernandez told him that CRC would

try to revisit funding his position. However, it is clear that

Petitioner accepted the two - s emester unpaid internship, knowing

it was unpaid, and it is equally clear that it was never

promised by Dr. Hernandez or anyone else that Petitioner would

eventually become a paid intern.

28. Petitioner conceded that there was no intentional

discriminatio n in Respondent's advertising methods, but he felt

that in practice, it would have been better and fairer if CRC

had refused to hire him for the unpaid internship.

29. Petitioner testified that if Dr. Hernandez

discriminated in hiring him it had been "ina dvertent" and not

intentional.

30. Respondent's employees agreed that the 2001

advertising and hiring process for interns could have been

clearer, but no discrimination on the basis of Petitioner's race

was demonstrated.

31. Petitioner tried to show t hat in some previous years,

unpaid interns had begun to be paid when new funding was

acquired, or that they had been moved into paid internships as

vacancies occurred, but he was only able to show that unpaid

interns sometimes had been hired into paid inte rnships the

semester following the semester in which they served as unpaid

interns. Ms. Montero had been one such intern, and an African -

American male also had been one.

32. Petitioner worked as an unpaid intern for CRC for two

semesters of the 2001 - 200 2 academic year. Throughout that

period, Petitioner made the work environment difficult for all

staff and graduate students by reminding everyone that he was

the only one among the assistants and interns who was not being

paid.

33. Upon joining the CRC team, Petitioner was required to

sign a record of volunteer service; a loyalty oath and an

intellectual property agreement; a controlled substance

questionnaire; and a retirement form. The loyalty oath and

intellectual property agreement identify Petition er as an

"employee." The record of volunteer service identifies him as a

"volunteer." On the other forms, he declared that he was not

drawing state retirement and that he was a potential employee.

In fact, Petitioner never was paid retirement benefits,

insurance benefits, or compensation of any kind by CRC.

34. Petitioner's two - semester commitment as an unpaid

intern was designed to contain a teaching component and a

counseling component for both semesters.

35. The first semester, Petitioner was assi gned to teach a

section of a career development course, supervised and evaluated

by Helda Montero, and to provide intake for counseling

appointments and individual follow - ups for those appointments,

supervised by Elaine Costellani.

36. Petitioner's teach ing component was discontinued for

the second semester due to a December 6, 2001, written

evaluation by his teaching supervisor, Helda Montero.

37. Ms. Montero counseled Petitioner on his teaching flaws

as she perceived them throughout the first semester , and

particularly in a mid - semester oral progress report. The mid -

semester progress report was done orally to give teaching

interns an opportunity to improve and grow before a written

evaluation was made for their files. Petitioner made slight

improveme nts during the last half of the first semester, but Ms.

Montero's December 6, 2001, written evaluation was based on her

perception of his poor classroom management, specific oral

complaints by two students, written classroom evaluations of him

by all his s tudents which were significantly lower than those

for other teaching interns, his poor participation in the

teaching supervision process (weekly meetings, etc.), and other

teaching problems.

38. Ms. Montero's December 6, 2001, evaluation was based

partly on two of Petitioner's students separately seeking her

out and relating that Petitioner's humor in class had

embarrassed and demeaned them. Ms. Montero also placed great

emphasis on the many student evaluations which complained about

Petitioner's assignm ents being too difficult and his grading

scale being too strict for a one - hour, one - credit class. Part

of her evaluation of his classroom technique was based on

observational supervision of his classroom performance through a

window. This is a teaching m ode widely recognized as valid.

Another part of her evaluation was based on her perception that

Petitioner was defensive and resistant to incorporating

interactive periods into his own lecture style of teaching and

on his "difficult" personality in group meetings. Ms. Montero's

perceptions may have been correct or incorrect, but there is no

persuasive evidence that she had any racial motive in her

written evaluation of Petitioner's teaching.

39. Likewise, the students who complained to Ms. Montero

about Petitioner may or may not have had the motivation to do

Petitioner harm so as to get a better grade, but there is no

persuasive evidence their complaints were racially motivated.

40. Also, although there is a suggestion within the

collected written stud ent evaluations of Petitioner's teaching

that some students just did not want to work hard in a one -

credit course or did not consider spelling, grammar, and

presentation of projects and tests as important as Petitioner

did, such student evaluations are co nsidered a valid tool by the

University. The University uses these student evaluation forms

to review all its instructors. Finally, there is no persuasive

evidence that the written student evaluations of Petitioner's

teaching were applied selectively to Petitioner or were racially

motivated.

41. The two Caucasian interns who were paid were rated

higher in teaching by Ms. Montero than Petitioner was, but

Petitioner did not establish that there was any inaccuracy or

racial motivation in her ratings of the m or of Petitioner.

42. Petitioner protested, and was afforded a conference

with Ms. Montero and Ms. Montero's supervisor, Ms. Severy.

Afterwards, he was permitted to place a written rebuttal of

Ms. Montero's December 6, 2001, evaluation in his file, bu t Ms.

Severy upheld Ms. Montero's decision to remove the teaching

component from Petitioner's internship program for the second

semester.

43. Petitioner claimed that he was rated on different

forms than the two Caucasian interns, but the difference in

fo rms appears to be associated with differences in on - and off -

site counseling assignments. In any case, that issue is

immaterial in that the different forms were not associated with

teaching, which was the only component wherein Petitioner was

found defici ent.

44. Despite curtailment of the teaching component of his

internship, Petitioner was permitted to continue career

counseling through both semesters of the 2001 - 2002 academic

year, and despite some other problems, 3/ he was ultimately rated

satisfactory by his counseling supervisor, Ms. Costellani. (See

also, Finding of Fact 51) During both semesters, his counseling

responsibilities were the same as the Caucasian assistants and

interns who were paid.

45. In the Spring of 2002, CRC lost the intern whos e

position had been funded by the Department of Education. This

left one vacant paid internship and rendered the remaining

counseling staff, regardless of their titles or paid or unpaid

status, overwhelmed with counseling work.

46. CRC staff, most notab ly Lisa Severy, made the decision

not to pay Petitioner, who was already on board as an unpaid

intern and counselor, but to recruit someone new, so as to

replace the missing counselor with an additional counselor who

was sorely needed.

47. As noted above , there was never any promise that

Petitioner would be moved into a paid internship if a vacancy

occurred. This was not a promotion - type situation. The CRC was

looking for an additional qualified “warm body.” Moving

Petitioner into a paid position would not have represented a net

gain in the number of counselors.

48. It also would not have been possible to replace

Petitioner as an unpaid intern in the middle of the second

semester.

49. CRC did not re - advertise for a paid intern, graduate

assistant, o r a new counseling position. Ms. Severy heard about

Kristin Mercer by word of mouth. Ms. Mercer was an experienced

counselor with years of full - time counseling experience. She

had completed a master's degree and a counseling specialist

certification pro gram, and was on maternity leave at the time

she was hired by CRC. CRC hired Ms. Mercer, a Caucasian,

effective May 3, 2002, for 15 hours per week. At the time of

hire, Ms. Mercer's credentials exceeded those of Petitioner.

(See Finding of Fact 22) Ms. Mercer was not a University of

Florida student at the time of hire, and therefore she was not

eligible for an internship or graduate assistantship. However,

upon being hired, she performed the same counseling duties as

CRC's graduate assistants, paid int erns, and Petitioner, the

sole unpaid intern.

50. Although Ms. Severy first testified that the remaining

money allocated to the internship funded by the Department of

Education and vacated by a paid intern in the Spring of 2002,

was used to pay Ms. Merce r, I find more persuasive Ms. Severy's

later testimony, the corroborative testimony of Ms. Montero, and

Petitioner's own testimony, that Ms. Mercer's salary for 15

hours of counseling per week was funded out of OPS funds

originally allocated to a 40 - hour p er week secretarial position

which had been vacated by a promotion in December 2001.

51. Petitioner completed his two - semester commitment to

CRC and was almost immediately employed by Union Correctional

Institution as a Psychological Specialist. As such , he assesses

and counsels but does not teach. In aid of his almost immediate

hiring by the correctional facility, the CRC sent a favorable

reference on his behalf to the facility.

52. Petitioner continued to be fully employed, as set out

above, through the date of the disputed - fact hearing. He does

not seek "damages" after leaving CRC. Rather, Petitioner seeks

$9.50 for 20 hours per week for the 32 weeks he was with CRC.

This figure is based on his belief that paid interns were paid

$9.50 per hour wh ile he was there. This figure is in dispute,

but since CRC had time to research and thereafter formally

admitted in materials submitted to the Florida Commission on

Human Relations that $9.50 was the hourly rate for paid interns

in 2001 - 2002, that figure is accepted over Ms. Montero's

testimony that the hourly rate was $8.75.

53. Although he never applied for an graduate

assistantship, Petitioner also seeks $6,000.00 as an

"equivalent" to an assistant fee waiver. This is a ridiculous

contention and wi thout merit. He also claims money on the

theory he was subjected to working without pay while knowing

that others were paid. This also is not a legitimate element of

damages under Chapter 760, Florida Statutes.

54. Since Petitioner is no longer a Univ ersity student, he

is no longer eligible for a CRC internship or graduate

assistantship, nor has he been eligible at any time since May

2002. He is not seeking to be reinstated to a CRC internship.

CONCLUSIONS OF LAW

55. Any jurisdiction the Florida Comm ission on Human

Relations, and derivatively, the Division of Administrative

Hearings have of the parties and subject matter of this cause is

pursuant to Section 120.57(1) and Chapter 760, Florida Statutes.

56. Petitioner contends that instead of telling h im that

the only way he could become a counseling intern in the summer

of 2001 was to serve as an unpaid volunteer, CRC personnel

should have refused him an unpaid position once he indicated he

wanted to be paid. He further claims that CRC's taking him on

as an unpaid intern constituted discrimination on the basis of

his race. Also, he contends that he was racially discriminated

against when Caucasians (paid interns) were paid to do

counseling work identical to the work he was doing without pay;

that he w as racially discriminated against when a Caucasian (Ms.

Mercer) was hired in a paid position to do the identical

counseling work he was doing; and that he should have been moved

into the paid position.

57. This forum has jurisdiction of Petitioner's claim s,

insofar as they relate to an alleged failure to hire him in

June 2001 4/ for a paid internship or an alleged failure to hire

him as a part - time counselor in the spring semester of 2002, but

for the reasons hereafter enunciated, that jurisdiction does no t

cover any claims relating to Petitioner's work assignments

(teaching and counseling components) as an unpaid intern between

the two dates. On the other hand, these work assignments and

other transactions and occurrences related thereto may be used

as ev idence of discrimination to establish discriminatory animus

in support of Petitioner's two "failure to hire" claims.

58. As to Petitioner's internship work status, courts

considering the issue have frequently concluded that unpaid

interns in a college pra cticum setting, such as the CRC, are not

protected by anti - discrimination laws. For example, in Jacob -

Mua v. Veneman , 289 F.3d 517 (8th Cir. 2002) the court held that

a researcher at the United States Department of Agriculture was

not an "employee" for pu rposes of Title VII, and therefore could

not state a viable claim, where she was not paid, did not

receive annual and sick leave benefits or coverage under any

retirement program, and was not entitled to merit promotion,

holiday pay, insurance benefits or competitive status. There,

as here, the researcher had signed a "volunteer" agreement. The

research obtained for a dissertation was not sufficient

compensation to convert the researcher into an "employee." The

court held that some sort of economic compe nsation is an

essential element of the employment relationship. In O'Connor

v. Davis , 126 F.3d 112 (2nd Cir. 1997) cert. denied 522 U.S.

1114, 1118 S. Ct. 1048, 140 L.Ed. 112 (1998), the plaintiff was

a college student performing field work as an unpaid i ntern in a

hospital, which was a requirement for a degree in social work.

That unpaid intern lost on the same premise that no economic

component had been received. Chapter 760, Florida Statutes,

does not define "employee," nor does Title VII. The court held

that where the term "employee" is undefined by Congress, a

conventional master - servant relationship is contemplated and

that requires economic exchange. See also Marvelli v. Chaps

Community Health Center , 193 F. Supp. 2d 636 (E.D.N.Y. 2002),

wherein student interns could not state a hostile work

environment claim under Title VII because without salary or

benefits they were not "employees." A factually unsupported

allegation that they were "wrongfully terminated" by being

promised a job and not gettin g it was insufficient.

59. Petitioner may establish a prima facie case of

discrimination by failure to hire in three ways: (1) direct

evidence of discriminatory intent; (2) statistical proof of a

pattern of discrimination; or (3) circumstantial evidence t hat

raises a rebuttable presumption of intentional discrimination

under the test established in McDonnell Douglas Corp., v. Green ,

41 U.S. 793, 3 S. Ct. 1817, 36 L.Ed. 2d 668 (1973). See also

Longariello v. School Board of Munroe County, Florida , 987 F.

S upp. 1440 (S.D. Fla. 1977); and Walker v. Nationsbank of

Florida, N.A. , 53 F.3d 1548 (11th Cir. 1995).

60. "Direct evidence of intentional discrimination is

evidence which, if believed, establishes the existence of

discriminatory intent behind the employm ent decision without any

inference or presumption." Chambers v. Walt Disney World Co. ,

132 F. Supp. 2d 1356 (M.D. Fla. 2001). See also Standard v.

A.B.E.L. Services, Inc. , 161 F.3d 1318 (11th Cir. 1998).

61. Pursuant to the McDonnell - Douglas model, a pr ima facie

case requires that Petitioner demonstrate that: (1) he is a

member of a protected class; (2) he applied for, and was

qualified for, an available position; (3) he was rejected for

the position; and (4) Respondent filled the position with a

person outside of his protected class. See Walker v. Prudential

Property and Cas. Ins. Co. , 286 F.3d 1270, 1275 (11th Cir.

2002), where the employee did not establish a prima facie case

because no evidence was presented that the employee actually

applied for the job in question. See also Walker v. Mortham ,

158 F.3d 1177, 1192 (11th Cir. 1998), (quoting Patterson v.

McLean Credit Union , 491 U.S. 164, 186, 109 S. Ct. 2363, 2378,

105 L.3d 2d 132 (1989).

62. It is hard to see how Petitioner can even allege

discri mination in CRC's initial June 22, 2001, offer of an

internship, because Petitioner, in effect, asserts that to not

hire him would have been just, but hiring him, in itself,

constituted racial discrimination.

63. Indeed, Petitioner has not offered any dir ect evidence

of discrimination for the first failure to hire charge, and he

has conceded he does not believe the hiring authority was

intentionally discriminatory. At most, Petitioner has

established that he is a member of a protected class: African -

Ameri can. However, he has failed to establish the second prong

of a prima facie case. Specifically, he has not adduced any

evidence that an available, paid internship position for which

he was qualified was open when he applied in June of 2001. All

evidence shows that no such position was available when he

applied in June 2001. There can be no inference of

discrimination from Respondent's failure to hire Petitioner for

a position which was not available.

64. With regard to the claim that Respondent unlawf ully

failed to hire Petitioner for the part - time counseling position

when it hired Ms. Mercer in the spring of 2002, Petitioner has

both failed to establish that he applied for the position or

that he was the most qualified candidate for the position.

How ever, his failure to apply is only minimally interesting,

because Ms. Mercer also did not apply, and the disparity in

their qualifications is fatal to Petitioner's prima facie case.

Even if Petitioner could be considered minimally qualified for

the positi on, Ms. Mercer was much more qualified. Accordingly,

any failure to hire Petitioner for this position in the Spring

of 2002, cannot serve as the basis for a viable discrimination

claim. See Denney v. City of Albany , 247 F.3d 1172, 1187 (11th

Cir. 2001), stating that the plaintiff must show that the

disparity in qualifications is such as is "so apparent as

virtually to jump off the page and slap you in the face" to

maintain a successful claim.

65. Assuming arguendo , but not ruling, that a prima facie

cas e has been made as to the Mercer hiring, Petitioner still

cannot prevail.

66. In Department of Corrections v, Chandler supra ., the

Florida Supreme Court analyzed the types of claim under the

Florida Civil Rights Act as follows:

The United States Supreme C ourt set forth in

procedure essential for establishing such

claims in McDonnell Douglas Corp., v. Green ,

41 U.S. 792 (3 S.Ct. 1817, 63 L.Ed. 2d 668

(1973), which was then revisited in detail

in Texas Department of Community Affairs v.

Burdine , 450 U.S. 248 , 101 S. Ct. 1089, 67

L.Ed 2d 207 (1981). Pursuant to the Burdine

formula, the employee has the initial burden

of establishing a prima facie case of

intentional discrimination, which once

established raises a presumption that the

employer discriminated ag ainst the employee.

If the presumption arises, the burden shifts

to the employer to present sufficient

evidence to raise a genuine issue of fact as

to whether the employer discriminated

against the employee. The employer may do

this by stating a legitima te,

nondiscriminatory reason for the employment

decision; a reason which is clear,

reasonably, specific, and worthy of

credence. Because the employer has the

burden of production, not one of persuasion,

which remains with the employee, it is not

required to persuade the trier of fact that

its decision was actually motivated by the

reason given. If the employer satisfies the

burden, the employee must then persuade the

fact finder that the proffered reasons for

the employment decision was pretext for the

in tentional discrimination. The employee

may satisfy this burden by showing directly

that a discriminatory reason more likely

than not motivated by the decision, or

indirectly by showing that the proffered

reasons for the employment decision is not

worthy o f belief. If such proof is

adequately presented, the employee satisfies

his other ultimate burden of demonstrating

by a preponderance of evidence that he or

she has been the victim of intentional

discrimination. (Citation omitted).

67. In this case, P etitioner has the burden of presenting

evidence sufficient to establish that his race was a determining

factor in the employment decision made to hire Ms. Mercer. See

U.S. Postal Service Board of Governors v. Aikens , 460 U.S. 711,

715 (1983); Penna v. Bra ttleboro Retreat , 702 F.2d 812 (10th

Cir. 1978). In other words, Petitioner must prove that what

motivated Respondent not to hire him was his race.

68. Respondent is not required to do more than present its

non - discriminatory reasons. Respondent is not required to

persuade. The standards of proof still require that Petitioner

show the employer's evidence is merely a pretext for

discrimination. See generally Bass v. Board of County

Commissioners of Orange County , 242 F.3d 996, 1013 (11th Cir.

2001); Si mmons v. Camden County Board of Education , 757 F.2d

1187 (11th Cir. 1985) cert. denied 474 U.S. 981, 106 S. Ct. 385

(1985).

69. CRC wanted to replace a part - time counselor to meet

increased workload requirements. Paying Petitioner for 15 hours

of counsel ing when he was already providing 20 hours of

counseling as an unpaid intern would not have secured an

additional counselor for CRC and would have expended funds which

could be used to hire another needed counselor. Ironically, the

fact that Petitioner wa s already providing counseling services

disqualified him from the new position because it was the number

of counselors that needed to be increased. Petitioner may have

established that he was badly used by CRC but not that he was

discriminated against on account of his race. His was not a

situation of a promised or deserved promotion which was denied

on the basis of race. This was a situation involving two types

of position which were entirely different as to funding

resources or lack thereof. The situa tion is also governed by a

need to hire one more warm body to do counseling.

70. In making the foregoing analysis, I have weighed the

evidence concerning Petitioner's teaching component and

counseling component histories. These situations represent

pe rsonality conflicts and professional disagreements without

indicators of racial bias. Mesdames Montero and Severy

perceived the Caucasian interns as cooperative and perceived

Petitioner as "difficult," but those perceptions and their

actions based on thos e perceptions were not proven to be

racially discriminatory. Petitioner's problematic approach to

the teaching component was recorded by students as well as by

Ms. Montero. Petitioner's "difficult" attitude with colleagues

and counseling flaws were noted by Ms. Severy as well as by

Ms. Montero. Their concerns were not based on race, so even if

their concerns did affect the decision to hire Ms. Mercer, a

fact never actually established, their concerns do not support

any aspect of Petitioner's case.

71. "Once the Plaintiff has established a prima facie

case, thereby raising an inference that he was the subject of

intentional. . . discrimination, the burden shifts to the

defendant to rebut this inference by presenting legitimate non -

discriminatory reasons for its employment action. . . . This

intermediate burden is exceedingly light." Holified v. Reno ,

115 F.3d 1555 (11th Cir. 1997)

72. Herein, Respondent presented legitimate non -

discriminatory reasons for its hiring of Ms. Mercer. No

competent evidenc e was presented which would establish that

Respondent's reasons for hiring Ms. Mercer instead of Petitioner

were pretexual. See Isenbergh v. Knight - Ridder Newspaper Sales,

Inc. , 97 F.3d 436 (11th Cir. 1996), holding that pretext must be

shown with "signif icantly probative evidence." Therefore,

Petitioner cannot prevail.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petit ion for Relief and

Charge of Discrimination.

DONE AND ENTERED this 12th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The D eSoto 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 February, 2004.

ENDNO TES

1/ Other issues subsumed in this one are: (a) whether an

employer - employee relationship ever existed and (b) whether the

Florida Commission on Human Relations and the Division of

Administrative Hearings have jurisdiction of any volunteers,

i.e., do t hey constitute employees?

2/ The table of contents of the Transcript is in error that

Exhibits P - 14 - 20 were not admitted. The express rulings on the

record found at TR - 118, 119, 200, 249, and 252, show that

Exhibits P - 14 through 20 were admitted in evid ence.

3/ Petitioner was written - up by Ms. Severy for sleeping during

the counseling component of his program. He had previously been

orally warned about napping until he was written - up. Ms. Severy

also found Petitioner "difficult" in group meetings. ( See

Finding of Fact 32). Ms. Severy also did not like it that

Petitioner unilaterally reduced his one - hour follow - up slots to

half - hour slots even though the counseling overload eventually

caused all CRC counselors to reduce their intake slots from one

ho ur slots to half - hour slots.

4/ Respondent contends that the Charge of Discrimination was

filed more than 365 days after the failure to hire/hire date of

June 22, 2001 because it was filed July 30, 2002. This may be

so, but since it is debatable when Pe titioner actually began his

internship (sometime in August 2001), I have given him the

benefit of the doubt. See § 760.11(1), Fla. Stat.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

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

Kirk Cummings

Post Office Box 140508

Gainesville, Florida 32614

Charles M. Deal, Esquire

University of Florida

123 Tigert Hall

Gainesville, Florida 32611 - 2703

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 Recommend ed Order should be filed with the agency that

will issue the final order in this case.