03-002670 Thaddeous J. Price vs. Alachua County School Board Status: Closed Recommended Order on Friday, December 19, 2003.

Summary: Petitioner did not establish a prima facie case of race, gender, or age discrimination. Recommended that the charge of discrimination be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THADDEOUS J. PRICE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2670

)

ALACHUA COUNTY )

SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing w as held pursuant to notice, on October 20, 2003,

in Gainesville, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Thaddeous J. Price, pro se

708 Prince Hall

Frankfort, Kentucky 40601

For Respondent: James A. Robinson, Esquire

Alachua County School Board

620 East University Avenue

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Charge of Discrimination filed by

Petitioner on December 30, 2002.

PRELIMINARY STA TEMENT

On December 30, 2002, Petitioner, Thaddeous J. Price, filed

a Charge of Discrimination with the Florida Commission on Human

Relations (FCHR) which alleged that the Alachua County School

Board violated Section 760.10, Florida Statutes, by

discriminat ing against him on the basis of race, sex, and age.

The allegations were investigated by FCHR and on June 24,

2003, FCHR issued its Determination: No Cause and its Notice of

Determination: No Cause.

A Petition for Relief was filed with FCHR on July 18, 2003.

FCHR transmitted the case to the Division of Administrative

Hearings (Division) on or about July 22, 2003. A Notice of

Hearing was issued setting the case for formal hearing on

October 20, 2003. On October 16, 2003, Petitioner filed a

Motion for C ontinuance. Respondent objected to the motion. The

motion was denied and the hearing took place on October 20,

2003, as scheduled. See Fla. Admin. Code R. 106.210.

At hearing, Petitioner testified on his own behalf.

Petitioner offered Exhibits numbered 1 through 29 which were

admitted into evidence. Respondent presented the testimony of

Veita Jackson - Carter, Dr. Leila Pratt, and Marcia Shelton.

Respondent offered into evidence Exhibits lettered A through C,

J, and N through P, which were admitted into evidence.

A Transcript consisting of two volumes was filed on

November 5, 2003. Post - hearing written submissions were to be

filed 30 days after the filing of the Transcript. Petitioner

and Respondent timely filed a post - hearing submission and a

P roposed Recommended Order, respectively, which have been

considered in the preparation of this Recommended Order. 1/

FINDINGS OF FACT

1. Veita Jackson - Carter is the assistant principal at

Eastside High School (Eastside) which is located in Gainesville,

F lorida, and is part of the Alachua County School District

(school district). In the summer of 2002, Petitioner came to

Eastside to talk to Ms. Jackson - Carter about employment there.

At that initial meeting, Petitioner and Ms. Jackson - Carter

discussed ins tructional positions at Eastside.

2. While Petitioner gave a resume to Ms. Jackson - Carter,

Ms. Jackson - Carter informed Petitioner that he needed to submit

an employment application with the school district's personnel

office. Ms. Jackson - Carter was very interested in hiring

Petitioner. However, she explained to Petitioner that while the

individual schools make recommendations regarding hiring, the

school district actually hires applicants.

3. Petitioner submitted a completed Application for

Instructiona l Position on June 28, 2002, to the school

district. 2/

4. Because of her interest in hiring Petitioner,

Ms. Jackson - Carter checked with someone in the school district's

personnel office on the status of his application for an

instructional position. She learned that there was a problem

with his obtaining a teaching certificate.

5. During this same period of time, Petitioner met with

Marcia Shelton. At that time, Ms. Shelton was a certification

specialist with the school district's department of personne l

services. She worked with applicants in assisting them in

determining eligibility for certification. However, neither

she, nor anyone who works for the school district, has the

authority to issue teaching certificates or statements of

eligibility for t eaching certificates as only the Florida

Department of Education has the authority to do that.

6. At the initial meeting between Petitioner and

Ms. Shelton, Petitioner informed Ms. Shelton that a particular

school was interested in hiring him for an instr uctional

position. She began the process of assisting him to determine

his eligibility for certification.

7. Petitioner's application contained his educational

achievements. He earned a bachelor's degree from Kentucky State

University with a major in cr iminal justice and a minor in

political science, and a master's degree with a major in human

resource management and a minor in the area of public

administration.

8. Ms. Shelton asked for and received copies of

Petitioner's academic transcripts. Ms. Shel ton's review of the

transcripts revealed that Petitioner had a cumulative

undergraduate grade point average (GPA) of 2.322. She informed

Petitioner that the minimum GPA required for issuance of an

initial teaching certificate was 2.5 and that he would not be

eligible for certification because the GPA for the courses

needed for certification were not high enough. While Petitioner

had the course work to meet specialization requirements for

political science, the grades were not what was required.

9. In an effort to help Petitioner, Ms. Shelton contacted

Jean Morgan with the Bureau of Educator Certification of the

Florida Department of Education (Department), to inquire as to

whether public administration courses Petitioner had taken could

be counted toward those required for certification in political

science or social science. Petitioner's own exhibits establish

that Ms. Shelton made numerous attempts to assist Petitioner by

making repeated inquiries in August 2002 to Ms. Morgan and

Ms. Morgan's supervisor , Kathy Hebda, in an effort to find a way

for Petitioner to meet the Department's requirements.

Ms. Shelton's efforts included faxing course descriptions to the

Department for evaluation in an effort to satisfy the

Department's certification requirements.

10. Ms. Shelton's efforts, however, on Petitioner's behalf

were unsuccessful. That is, she learned from both Ms. Morgan

and Ms. Hebda that the Department would not accept the public

administration courses to bring up Petitioner's GPA in political

scienc e.

11. On August 5, 2002, Petitioner again went to Eastside

to meet with Ms. Jackson - Carter. She informed him of some

career service positions at Eastside for which he could apply.

Petitioner completed and filed a Career Service Application Form

dated A ugust 13, 2002, with Respondent.

12. There is an inconsistency in Petitioner's answers to a

question regarding criminal background on each application for

employment with Respondent. Each application contains a

question regarding whether the applicant ha d ever been found

guilty of, regardless of adjudication, or entered a plea of nolo

contendere to offenses listed in three categories. On the

Application for Instructional Position, Petitioner checked "no"

for all three categories: felony, first degree mi sdemeanor, and

second degree misdemeanor involving a minor child or involving

violence. He then answered "yes" to the question, "Have you

ever been judicially determined to have committed abuse or

neglect against a child." The application instructs the

a pplicant that if any question was answered yes, to explain and

attach all pertinent documents. Despite having answered yes to

one question, Petitioner wrote "N/A" in the blank provided.

13. However, on the Career Service Application Form, he

answered "ye s" to the category generally entitled "misdemeanor."

The application instructs the applicant that if the answer to

any of the criminal background questions was "yes," that the

applicant must list charge(s) and disposition. In the blank

provided to list c harge(s) and disposition, Petitioner put "N/A"

in the blank provided, despite having answered "yes" to the

category entitled "misdemeanor." The application also instructs

the applicant to attach all pertinent documents.

14. On or about August 16, 2002, P etitioner again went to

Eastside to meet with Ms. Jackson - Carter. He inquired of

Ms. Jackson - Carter when he was to report to work. Ms. Jackson -

Carter inquired of Petitioner if the school district had offered

him a position as she was not aware of any pos ition having been

offered to him.

15. The last correspondence in the record from Ms. Shelton

to the Department is dated August 29, 2002, in which she notes

that the Bureau Chief of the Department's Bureau of Educator

Certification was personally reviewi ng Petitioner's documents.

She also noted that "he still has not applied to DOE." In

Ms. Shelton's and Dr. Pratt's experience, it is unusual for the

bureau chief to become personally involved in such a review.

16. Ms. Shelton received a call from Ms. He bda and the

bureau chief during which Ms. Shelton learned that the bureau

chief personally was going to accept the course work to enable

Petitioner to meet specialization requirements for a temporary

certificate in political science.

17. Ms. Shelton did not have the authority to make that

determination that was ultimately made by the bureau chief of

the Bureau of Educator Certification.

18. On August 23, 2002, the school district sent a letter

to Petitioner informing him that his application for substit ute

teaching had been approved for the 2002 - 2003 school year. The

letter informed him about a mandatory new employee orientation.

It also specified that state law requires that all new employees

be fingerprinted. The letter was signed by Josephine Brown ,

Coordinator, Personnel Services.

19. Being a substitute teacher requires direct contact

with students. The position of substitute teacher is not a

permanent position with the school district. It is a

conditional offer pending cleared fingerprint proce ssing.

20. Dr. Leila Pratt was Director of Personnel Services for

the Alachua County School Board in August 2002. She was

Ms. Shelton's and Ms. Brown's supervisor. She has since

retired.

21. On August 27, 2002, Dr. Pratt attended the criminal

histor y review committee meeting during which Mr. Price was

discussed. Of particular concern to Dr. Pratt were certain

entries on Mr. Price's criminal history record received from the

Florida Department of Law Enforcement and the Federal Bureau of

Investigation which Ms. Pratt believed reflected violent

behavior. She was concerned that these offenses would make

Petitioner ineligible for employment because of statutory and

school district policy requirements. She was also concerned

about the inconsistencies bet ween the answers provided on the

two applications.

22. A Criminal Records form was completed regarding

Petitioner as a result of the committee meeting which included

the following notations: "criminal possession of handgun (87);

possession of handgun (93 ); DUI & suspended license (2000);

violation of KY charges (01). Falsification of application."

23. The recommendation of the committee was termination.

24. The school board issued a Separation of Service form

to Petitioner dated and signed by Petitione r and Dr. Pratt

August 28, 2002. The form identifies the reason for separation

as "background check."

25. Petitioner requested and was given the opportunity to

explain his criminal history. On August 29, 2002, he went to

Dr. Pratt's office to discuss h is criminal background and to

provide Dr. Pratt with pertinent documentation. However, the

information which Petitioner provided to Dr. Pratt did not

satisfy her concerns.

26. On August 29, 2002, Dr. Pratt wrote a letter to

Petitioner which stated as fol lows:

Dear Mr. Price:

In response to the three charges: criminal

possession of a weapon, menacing and assault

filed in August 1987, your documentation

does not indicate your charges were dropped

to a misdemeanor. It indicates that you

pled guilty and was sentenced to thirty (30)

days confinement. [sic]

In response to your charge filed on April 6,

1989 for trespassing on property after a

warning, you provided no official

documentation from the court records.

In response to the charge filed on

November 12 , 1993 for possession of a

handgun by a convicted felon, your

documentation does not officially state that

your charges were dismissed or that the

charges were dropped. We are unable to

determine what is meant by the statement,

"lack of probable cause" on the paperwork

you submitted.

In response to the charge filed on April 20,

2000 for DUI and suspended license, your

documentation stated the case was dismissed,

but there was probable cause for the arrest

and your case was remanded back to another

cour t for the disposition. You submitted no

documentation as to the final disposition.

A restraining protection order was issued

from 2000 to 2003 for domestic battery. No

official court documentation regarding this

charge has been provided.

In addition to the information you submitted

being incomplete, one of the documents you

presented was not an official court

document, which is what we requested,

official court records .

To provide further consideration to your

request for employment, official court

doc uments will need to be provided for all

of the charges that have been filed. Until

this information is received and reviewed,

you are not eligible to work for the School

Board of Alachua County.

27. According to Ms. Price, official court documents are

r equired of everyone under these circumstances. Even if the

court documents had been official, Dr. Pratt's concerns would

have remained because of the violent nature of some of the

offenses in the documents and the statutory and school district

policy requ irements.

28. Petitioner did not submit further documentation to

Respondent clarifying his criminal history.

29. Petitioner completed an Application for Florida

Educator Certificate which was mailed to the Department on

August 30, 2002.

30. The Depart ment issued an Official Statement of Status

of Eligibility to Petitioner dated May 28, 2003, which explained

to Petitioner what was required of him to get a temporary

certificate and a professional certificate covering political

science for grades 6 throug h 12. The Official Statement of

Status of Eligibility also informs Petitioner that issuance of a

certificate will be contingent upon a review of any criminal

offense as a result of fingerprint processing.

31. Dr. Pratt characterized Ms. Shelton's efforts on

Petitioner's behalf as going "beyond the call of duty." She

believes that her entire staff acted appropriately in dealing

with Petitioner.

32. Petitioner is an African - American male. At the time

of the adverse employment action giving rise to this proceeding,

Petitioner was 42 years old.

33. Ms. Jackson - Carter and Dr. Pratt are African - American

females. Ms. Shelton is a white female.

34. Beyond Petitioner's allegation of discrimination,

Petitioner presented no evidence that his race, sex, or age

played any role in any action taken by Respondent regarding

Petitioner's eligibility for teacher certification or its

decision to terminate his probationary employment as a

substitute teacher. The Department's ultimate acceptance of

coursework and issuan ce of a Statement of Status of Eligibility

some eight months after the adverse employment action taken by

Respondent does not establish that Respondent engaged in

discriminatory conduct.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearing s has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat. (2002).

36. Section 760.10(1), Florida Statutes, states that it is

an unlawful employment practice for an employer to discharge or

otherwise discrimi nate against an individual on the basis of

race, sex, or age.

37. Section 1012.32, Florida Statutes, reads in pertinent

part:

(1) To be eligible for appointment in any

position in any district school system, a

person shall be of good moral character;

s hall have attained the age of 18 years, if

he or she is to be employed in an

instructional capacity; and shall, when

required by law, hold a certificate or

license issued under rule of the State Board

of Education or the Department of Children

and Family S ervices. . . .

(2)(a) Instructional and noninstructional

personnel who are hired to fill positions

requiring direct contact with students in

any district school system or university lab

school shall, upon employment, file a

complete set of fingerprints taken by an

authorized law enforcement officer or an

employee of the school or district who is

trained to take fingerprints. These

fingerprints shall be submitted to the

Department of Law Enforcement for state

processing and to the Florida Bureau of

Inves tigation for federal processing. The

new employees shall be on probationary

status pending fingerprint processing and

determination of compliance with standards

of good moral character. Employees found

through fingerprint processing to have been

convicte d of a crime involving moral

turpitude shall not be employed in any

position requiring direct contact with

students. . . .

38. Alachua County School Board Policy 6.031 reads in

pertinent part as follows:

6.031* APPOINTMENT OR EMPLOYMENT

REQUIREMENT

Any person desiring employment shall file a

completed application on the from provided

by the Superintendent.

(1) Qualifications.

(a) Must be of good moral character.

(b) Must have attained the age of 18

years.

(2) Certificate requirement s. Each

applicant for an instructional or a

certificated administrative position shall

hold a certificate or shall have a receipt

from the Florida Department of Education

acknowledging that an application has been

filed and that issuance of the certificat e

is pending.

(a) To be considered for a position,

applicant shall be duly qualified for that

position in accordance with State law,

regulations of the Florida Department of

Education and the approved job description.

If it appears that the applican t is eligible

for proper certification, appointment may be

made subject to the conditions set forth in

the annual contract of employment as

approved by the School Board.

(b) Any person not holding a valid

Florida certificate at the time of

employment shall be required, upon initial

employment, to make application to the

Florida Department of Education for such a

certificate, through the Personnel Service

Office of the District. When such

certificate is received, it must be filed

with the Office of th e Superintendent.

If the Department of Education declines to

issue a certificate, the person's employment

shall be terminated immediately. Failure to

file such certification except for good

cause as determined by the Superintendent,

shall result in the termination of

employment.

* * *

(4) Fingerprinting. All positions of

employment with the Board are deemed to

require direct contact with students. All

employees are required to undergo

fingerprinting and background screening as a

condition of emp loyment and continued

employment, in accordance with Chapters 231

and 435, Florida Statutes.

* * *

(7) The District shall ensure that all

aspects of the recruitment and selection

process are job - related and are consistent

with business necessity so as t o ensure

equal employment opportunity. Neither the

District nor its agents shall engage in any

discrimination with respect to employment in

violation of any state or federal law.

39. In order to make out a prima facie case of race

discrimination under S ection 760.10(1)(a), Florida Statutes,

Petitioner must show that he was a member of a protected class,

that he was qualified for the job he was seeking, and that a

person outside the protected class with equal or lesser

qualifications was hired. See McDon nell Douglass Corp. v.

Green , 411 U.S. 792 (1973); and Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981). Under this well

established model of proof, a Petitioner bears the initial

burden of establishing a prima facie case of discrimin ation. 3/

40. Similarly, in order to make out a prima facie case of

gender or age discrimination, Petitioner must show that he was a

member of a protected class; that he was qualified for the job

for which he applied; and that another person outside the

protected class, or of a different age, with equal or lesser

qualifications was hired. Carter v. Three Springs Residential

Treatment , 132 F. 3drd 635 (11th Cir. 1998), citing McDonnell

Douglass Corp. v. Green , supra .

41. Petitioner has met the first pro ng of his burden of

proving a prima facie case of discrimination. He is an African -

American male, in his 40's. However, the evidence does not show

that he was qualified for the job he was seeking. Further, no

evidence was presented that persons outside the protected class,

or of a different age, who were also qualified were offered the

position by Respondent.

42. Even if Petitioner had satisfied all prongs of the

prima facie case, when the charging party, i.e. , Petitioner, is

able to make out a prima facie case, the burden to go forward

shifts to the employer to articulate a legitimate, non -

discriminatory explanation for the employment action. See

Department of Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st

DCA 1991) (court discusses shifting burd ens of proof in

discrimination cases). The employer has the burden of

production, not persuasion, and need only persuade the finder of

fact that the decision was non - discriminatory. Department of

Corrections v. Chandler , supra ; Alexander v. Fulton County , GA ,

207 F.3d 1303 (11th Cir. 2000).

43. Respondent has met its burden of production.

Respondent has adequately articulated a legitimate, non -

discriminatory explanation for not hiring Petitioner.

Respondent established that its decision to withdraw i ts offer

of substitute teaching was based on statutory requirements and

school district policy. As such, Respondent has asserted a

legitimate non - discriminatory reason for its adverse employment

decision regarding Petitioner. The employment actions of

Re spondent were based upon legitimate means that did not

penalize Petitioner based upon his race, age, or sex.

44. Once the employer articulates a legitimate non -

discriminatory explanation for its actions, the burden shifts

back to the charging party to s how that the explanation given by

the employer was a pretext for intentional discrimination.

"The employee must satisfy this burden by showing directly that

a discriminatory reason more likely than not motivated the

decision, or indirectly by showing th at the proffered reason for

the employment decision is not worthy of belief." Department of

Corrections v. Chandler , 582 So. 2d 1183 at 1186; Alexander v.

Fulton County, GA , supra . While this last shifting of burden

does not come into play here because Petitioner has not

established a prima facie case, Petitioner presented no evidence

establishing that Respondent's actions were pretextual other

than Petitioner's assertions that he believed that the actions

taken by Respondent were based upon discriminato ry reasons.

45. Petitioner argues that Respondent did not follow its

own policy in its hiring practices and that he was denied due

process. The evidence does not support his argument; however,

even if the school district did not follow hiring policy to t he

letter, that is beyond the scope of this proceeding which is

limited to whether Respondent discriminated against Petitioner:

"The employer may fire an employee for a good reason, a bad

reason, a reason based on erroneous facts, or for no reason at

all, as long as its action is not for a discriminatory reason."

Department of Corrections v. Chandler , supra at 1187, quoting

Nix v. WLCY Radio/Rahall Communications , 738 F. 2d 1181, 1187

(11th Cir. 1984).

46. There was no evidence presented that Petitioner' s

race, sex, or age played any part in Respondent's decision.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dis missing Petitioner's Charge of Discrimination.

DONE AND ENTERED this 19th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

T he 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 19th day of December, 2003.

E NDNOTES

1/ However, Petitioner submitted an attachment to his post -

hearing submission which is in the nature of a late - filed

exhibit. As such, the attachment is not part of the record and

has not been considered. See § 120.57(1)(j), Fla. Stat.

2/ Petitioner asserts that he submitted an Application for

Instructional Position in April of 2002. Petitioner's Exhibit 2

is an incomplete application reflecting a date of April 24,

2002. However, unlike Petitioner's Exhibit 4, whic h is a

completed application dated June 28, 2002, Petitioner's Exhibit

2 is unsigned contains several blank portions (the portions

relating to education and professional training, teaching

experience, and references are blank). Further, Petitioner's

Exhib it 4 contains a stamp on the front that reads "application

complete" and contains notations in the space of the application

entitled "Office Record Only." Accordingly, Petitioner's

Exhibit 4 reflects the date Petitioner applied for an

instructional positi on with Respondent.

3/ FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of Section 760.10, Florida Statutes. See Brand v.

Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

COPIES FURNISHED :

Thaddeous J. Price

708 Prince Hall

Frankfort, Kentucky 40601

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

James A. Robinson, Esquire

Ala chua County School Board

620 East University Avenue

Gainesville, Florida 32601

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days 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.