05-001217 Frank Kennebrew vs. Miami-Dade County Public Schools Status: Closed Recommended Order on Monday, February 20, 2006.

Summary: The evidence was insufficient to prove that Respondent engaged in an "unlawful employment practice."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK KENNEBREW, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1217

)

MIAMI - DADE COUNTY PUBLIC SCHOOLS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on June 9, 2005, before Admi nistrative Law Judge Michael

M. Parrish of the Division of Administrative Hearings by means

of video teleconference with sites in Tallahassee and Miami,

Florida.

APPEARANCES

For Petitioner: Frank Kennebrew, pro se

13570 Southwest 192 Street

Miami, Florida 33177

For Respondent: Ana I. Segura, Esquire

School Board of Miami - Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

STATEMENT OF THE ISSUES

Whether the School Board of Miami - Dade County (School

Board) committed the unlawful employment practices alleged in

the Petition for Relief filed by the Petitioner and, if so, what

relief should he be granted by the Florida Commission on Human

R elations (FCHR).

PRELIMINARY STATEMENT

On or about March 2, 2004, the Petitioner filed a complaint

with the Miami - Dade County Public Schools Civil Rights and

Diversity Compliance (CRDC) office alleging a claim of race

discrimination against the School Boar d. In his complaint the

Petitioner asserted that he had been discriminated against

because of his race (Black) when the School Board terminated his

employment as a part - time adult education teacher. On or about

May 24, 2004, the CRDC concluded that there was "insufficient

evidence" to substantiate the complaint filed by the Petitioner,

and rendered a decision in favo r of the School Board. On

June 22, 2004, the Petitioner filed an appeal, which resulted in

the affirmation of the CRDC's prior determination .

On July 28, 2004, the Petitioner filed a Petition for

Relief with the Florida Commission on Human Relations (FCHR).

The Petition for Relief asserted that the Petitioner had been

subjected to race discrimination. On March 31, 2005, the FCHR

transmitted the Petition for Relief to the Division of

Administrative Hearings to conduct an evidentiary hearing.

At the final hearing the School Board was asked to present

its evidence first. The School Board presented the testimony of

the following witnesses: Made line Rodriguez, Manual Castaneda,

Gilda Santalla, and John Goonen. The School Board also offered

into e vidence Respondent's Exhibits A through Z, all of which

were received in evidence with the exception of Exhibit Y, which

was rejected.

The Petitioner te stified on his own behalf and also

presented the testimony of Joe Halasz. The Petitioner also

offered into e vidence Petitioner's Exhibits 1 through 6, all of

which were received in evidence.

Both parties were also granted leave to take post - hearing

deposi tions of two witnesses and to file the transcripts of the

depositions as late - filed exhibits. On July 14, 2005, the

transcript of the final hearing was filed with the Division of

Administrative Hearings. On August 8, 2005, the transcripts of

the depositi ons of Peter Hill and Claudia Hutchins were filed

with the Division of Administrative Hearings. Shortly

thereafter the parties were notified that the deadline for

filing their respective proposed recommended orders would be

August 22, 2005. Both parties filed timely proposed recommended

orders containing proposed findings of fact and conclusions of

law. The parties' proposals have been carefully considered

during the preparation of this Recommended Order. 1

FINDINGS OF FACT

1. The Petitioner is a Black m ale who, at all times

material to this proceeding, was employed by the School Board

both as a full - time K - 12 teacher and as a part - time evening

adult education teacher. The Petitioner continues to be

employed by the School Board in his full - time position. His

complaint in this case does not arise from any matters

concerning his full - time position. The issues in this case

arise from matters that occurred with regard to the Petitioner's

employment as a part - time evening adult teacher.

2. At all times mate rial hereto, the School Bo ard was a

duly - constituted school board charged with the duty to operate,

control, and supervise all free public schools within the School

District of Miami - Dade County, Florida. The School Board

adheres to a policy of nondiscrim ination and provides complaint

procedures to assure compliance with federal and state laws

which prohibit discrimination. It is the policy of the School

Board that no person will be denied employment on the basis of

race or color.

3. In December of 1988, the Petitioner was first hired by

the School Board as a part - time teacher. In August of 1998, the

Petitioner became a full - time teacher in the K - 12 school day

program and was assigned to teach in a middle school. The

Petitioner is still employed as a fu ll - time teacher in the K - 12

school day program and continues to teach in a middle school.

4. In addition to the Petitioner's full - time teacher

position, in recent years the Petitioner has also worked as a

part - time teacher in the evenings at the South Dad e Adult

Education Center ("Adult Center").

5. At the Adult Center the school year is divided up into

three terms which are commonly referred to as trimesters. The

Adult Center employees part - time teachers on a term basis, one

term at a time. During each school year, the first term starts

in August and ends in December. The second term starts in

January and ends in April. The third term starts in April and

ends in August.

6. The Petitioner worked at the Adult Center for several

terms, including the fol lowing trimesters: 2002 - 1 (first

trimester of the 2002 - 03 school year), 2002 - 2 (second trimester

of the 2002 - 03 school year, 2002 - 3 (third semester of the 2002 -

03 school year), and 2003 - 1 (first trimester of the 2003 - 04

school year).

7. During his employ ment at the Adult Center, the

Petitioner taught English for Speakers of Other Languages

("ESOL"). ESOL courses are offered at several levels ranging

from ESOL - PRE, which is the most basic course, through ESOL

Levels 1 through 5, with Level 5 being the mos t advanced course.

At the Adult Center student attendance is voluntary. The Adult

Center receives funds from the State based on the number of

students who complete the "Literacy Competency Points" ("LCPs").

At the Adult Center, the initial assignment of students to a

particular course is done by the registration clerk. However,

once assigned to a particular course, students have the choice

of requesting a transfer to another class or of withdrawing from

the course altogether. The administrators at the Adult Center

are inclined to grant student requests for transfers whenever

possible in order to reduce the likelihood that the student

might withdraw from the program.

8. During the first trimester of school year 2002 - 03 (term

2002 - 1), the Petitioner was assigned to teach an ESOL Level 4

class with an enrollment of thirty - one students. During the

second semester of school year 2002 - 03 (term 2002 - 2), the

Petitioner was assigned to teach two classes of ESOL Level 1;

one class with 61 students and the other with 62 students.

During the third trimester of school year 2002 - 03 (term 2002 - 3),

the Petitioner was assigned to teach one class of ESOL Level 1

with an enrollment of 41 students.

9. For the first trimester of school year 2003 - 04 (term

2003 - 1) the Petit ioner was assigned to teach two classes of

ESOL - PRE with an enrollment of 5 students each. These were

"targeted ESOL Classes" under the Skills for Academic,

Vocational, and English Studies ("SAVES") program. The SAVES

program requires smaller ESOL classe s; usually betwe en 8 and

15 students. SAVES students qualify for free textbooks, free

tuition, free child care, and free bus transportation.

10. School Principals have the discretion to make SAVES

classes even smaller. At the Adult Center, under School

Principal Gilda Santalla's discretion, enrollment for SAVES

classes had to be between 5 and 10 students in order for a SAVES

class to remain open.

11. In order to meet the needs of the students and the

needs of the program, the class assignments change ea ch

trimester for several teachers, not just for the Petitioner.

The Petitioner was assigned to teach lower levels of ESOL

because the student demand for the lower level of ESOL courses

was higher than the demand for Level 4 and 5 ESOL courses.

During the time period material to this case, demand for ESOL

Levels 4 and 5 was "dwindling."

12. In the first semester of the 2003 - 04 school year (term

2003 - 1) the Petitioner was assigned and accepted to teach a

course in the SAVES Program. The SAVES Program is f unded by the

U.S. Department of Health and Human Services through the Florida

Department of Children and Family Services, Office of Refugee

Services. It was created to address the training needs of the

refugee population. Students participating in the SA VES Program

must meet eligibility criteria imposed by the funding program in

order to qualify for "refugee" status.

13. Ms. Santalla assigned the Petitioner to teach ESOL - PRE

SAVES classes because she thought he was well - qualified for the

position. The P etitioner had a counseling certification and

also in his full - time teaching job he had experience teaching

children with special needs. Teaching children with special

needs often requires a great deal of patience. Many members of

the SAVES student popula tion had special needs. The

administrators at the Adult Center selected the Petitioner for

the SAVES program because they believed he "had the skills to

build this program and to teach those students."

14. When planning for the first semester of the 2003 - 04

school year, the administrators at the Adult Center were

confident that, because of the large demand for ESOL - PRE and

ESOL 1 classes, they would have at least 8 to 10 people in each

SAVES class. Initially, 27 SAVES eligible students were

identified. The following term the number went up to 50 SAVES

students, and more recently there were approximately 120 SAVES

eligible students.

15. The standard employment contract for part - time adult

education teachers, which is the type of contract signed by the

Pe titioner each time he taught at the Adult Center, clearly

specifies that the employment is for a specific course for a

specific time period delineated in the master schedule. The

standard part - time adult teacher employment contract also

includes the follo wing language:

Nothing herein shall be construed to grant

the Part - Time Teacher an expectation of

continued employment beyond the length of the

course designated by this contract.

* * *

4. The Part - Time Teacher shall not be

dismissed during the ter m of this contract

except for just cause as provided in

[Section] 231.36(1)(a), Florida Statutes.

Notwithstanding the dismissal for just cause

provision of this contract, the Part - Time

Teacher is responsible for maintaining the

minimum required student en rollment for the

course taught. Classes with fewer than the

required number of students are subject to

cancellation. Cancellation of a class will

automatically terminate the School Board's

obligations under this Contract.

16. The Adult Center's Teacher Handbook also states:

PART - TIME TEACHING ASSIGNMENTS

South Dade Education Center employs

instructors in a part - time capacity. Part -

time teachers are those who are paid on an

hourly basis. Part - time teachers are hired

as needed for a trimester. There i s no

guarantee that a class may continue the

entire trimester if enrollment falls below

the required number of students. Classes may

be closed and employment may cease. A

written contract, per trimester, is issued to

all teachers.

Before each term all p art - time teachers are

given a Teacher Agreement indicating their

new assignment.

17. A teacher may be assigned to more than one class per

semester. If so, and if only one class is cancelled due to low

enrollment, the teacher can continue to teach the re maining

classes that were not cancelled. In this regard it is important

to note that the "cancellation of a class" is not equivalent to

"dismissal for good cause."

18. In September of 2003, during the first trimester of

the 2003 - 04 school year (2003 - 1), the attendance reports for

Petitioner's assigned classes indicated that his SAVES classes

had 2 to 3 students attending each class. After 4 consecutive

absences a student is officially withdrawn from a class.

Accordingly, student M.G. was withdrawn from the courses with

reference numbers OJL4 and OJL5, leaving only 1 student (student

T.C.) in those courses. Courses with references numbers OJL8

and OJL9 had the same 3 students in both courses (students M.J.,

C.B., and F.N.). Enrollment in the Petitioner' s classes was

below the minimum number required to keep the classes open.

Therefore, the Petitioner's classes were cancelled during

September of 2003.

19. The Petitioner's classes were not the only classes

cancelled during the first term of school year 2 003 - 04. Part -

time Hispanic instructor Carmen Roman also had her ESOL - PRE

class cancelled. Ms. Roman's ESOL - PRE class, like Petitioner's,

had an initial enrollment of 5 students.

20. In the third term of school year 2002 - 03 (2002 - 3),

Fabian Mayta's ESOL - PRE class was cancelled. Mr. Mayta's class

had an initial enrollment of 7 students. During that same term,

Tomasita Neal's ESOL - PRE class was cancelled. Ms. Neal's class

had an initial enrollment of 6 students. During the second term

of school year 200 2 - 03 (2002 - 2), the ESOL - PRE class assigned to

Fabian Mayta was cancelled. The student enrollment was 5.

Part - time teachers Mayta, Neal, and Roman are not Black; they

are all Hispanic.

21. Fabian Mayta taught two classes of ESOL - PRE during the

first trim ester of 2002 - 03 (term 2002 - 2). During the second and

third trimesters of 2002 - 03 (terms 2002 - 2 and 2002 - 3), Mr. Mayta

had an ESOL - PRE class closed each semester. During the first

trimester of 2003 - 04 (term 2003 - 1), Mr. Mayta taught no ESOL - PRE

classes a t all. However, Mr. Mayta returned in the second

semester of 2003 - 04 (term 2003 - 2) to teach ESOL - PRE. Mr. Mayta

was also assigned to teach ESOL - 1 during that same period of

time, and he was assigned to teach ESOL - 2 in the first trimester

of 2003 - 04 (term 2003 - 1). However, this last - mentioned class

was cancelled due to low enrollmant.

22. Ms. Claudia Hutchins expected the Petitioner would

return to teach the following semester. These expectations were

evidenced in part by the fact that the computer prin t - out for

the Master Schedule of classes dated November 7, 2003 (which was

two months after the closure of Petitioner's classes), shows the

Petitioner listed as an instructor of the Adult Center.

23. The Petitioner made no attempt to contact the Adult

Ce nter after his classes were cancelled in the first trimester

of the 2003 - 04 school year. The Petitioner did not indicate any

interest in teaching at the Adult Center after the cancellation

of his classes.

24. The course assignments of part - time teachers may vary

from term to term. The Petitioner was not the only part - time

teacher whose clas s assignments changed from term - to - term. The

Petitioner was expressly notified by the language of the

standard employment contract and by the guidelines described

abo ve that low enrollment could cause classes to be closed.

25. The cancellation of classes due to insufficient

student enrollment is a separate and distinct event from the

termination of employment or dismissal of an employee for "good

cause." The Petition er's classes were cancelled, but no

employment dismissal proceedings were taken against him by the

School Board.

26. A memorandum summarizing the terms and conditions of

employment is issued to part - time teachers at the Adult Center

at the beginning of ea ch term. The memorandum includes the

following statement: "There is no seniority with regard to

part - time employment."

27. The Petitioner compares himself to teacher Raymond

Rivera. In this regard the Petitioner alleges that he was

replaced in his assi gnment to teach ESOL - 4 during the second

semester of the 2002 - 03 school year (term 2002 - 2) by teacher

Raymond Rivera, who was a H ispanic full - time teacher.

Mr. Rivera is certified by the State of Florida Department of

Education to teach English and t o tea ch ESOL. Unlike

Mr. Rivera, the Petitioner has a Miami - Dade County Public

Schools Educator's Certificate for Physical Education and a

Professional Educator's Certificate for Guidance and Counseling

(Pre - Kindergarten to Grade 12). The subject assignm ent o f

Mr. Rivera was determined by his full - time status, his

professional educator's certificate in ESOL (including all

levels K through 12), and his are a of expertise (English:

Grades 6 - 12). In addition, full - time teachers have priority

over part - time teache rs. Further , teachers are assigned to meet

the needs of the students, the community, and the program.

28. Ms. Santalla had no discriminatory intent when she

assigned Mr. Rivera to teach ESOL Level 4. The Petitioner has

presented no evidence that Ms. San tall a's decision to assign

Mr. Rivera to ESOL Level 4 was made with any intent to

discriminate against the Petitioner on the basis of his race.

Based on his professional certifications in English and in ESOL,

Mr. Rivera was better qualified to teach ESOL Level 4 than was

the Petitioner.

29. The Petitioner also compares himself to Tomasita Neal,

who is a Hispanic part - time teacher. Ms. Neal's ESOL - PRE

classes had an enrollment of 78 and 69 students during the first

trimester of the 2003 - 04 school year (t erm 2003 - 1). The

Petitioner asserts that Ms. Neal was less qualified to teach

ESOL than he was because Ms. Neal did not have a bachelor's

degree. Notwithstanding her l ack of a bachelor's degree,

Ms. Neal was well qualified to teach ESOL by reason of her many

years of teaching ESOL and her completion of the School Board's

certification process, both of which made her eligible to be

"grandfathered" as an ESOL teacher when the eligibility

requirements were changed.

30. Race was not a factor in closing the Petitioner's

classes. The determinative factor in closing those classes was

the low student enrollment in the classes.

31. The Adult Center offered the position of substitute

teacher to the part - time teachers whose classes were cancelled

during the term . Ms. Santalla offered the Petitioner a

substitute teaching position after his classes were cancelled.

The Petitioner declined the opportunity to work as a substitute

teacher at the Adult Center.

32. The Petitioner made no attempt to contact the Adult

C enter after his classes were cancelled. The Petitioner did not

demonstrate any interest in continuing to teach at the Adult

Center.

33. At the Adult Center the ESOL class enrollment

fluctuates due to the transient and seasonal nature of the ESOL

studen t population. Therefore, when classes are cancelled, the

teachers in the cancelled classes are encouraged to continue to

teach in subsequent terms. Ms. Hutchins was expecting and

hoping that the Petitioner would return to the Adult Center to

teach during the second semester of the 2003 - 04 school year

(term 2003 - 2). The Petitioner's name remained as a part - time

teacher on the roster of the Adult Center's second trimester of

school year 2003 - 04 (term 2003 - 2), which was the term following

the trimester in w hich the Petitioner's classes were cancelled.

34. Teacher Fabian Mayta's ESOL - PRE class was cancelled

twice; first in the second trimester of the 2002 - 03 school year,

and again in the third trimester of the 2002 - 03 school year.

Mr. Mayta returned to teac h in the first trimester of school

year 2003 - 04, which class was also cancelled, but he again

returned to teach in the second trimester of school year 2003 -

04.

35. Before the Petitioner's classes were cancelled, the

Petitioner was enrolled in teacher trai ning to develop effective

strategies in language arts ("CRISS" training). After his

classes were cancelled, the Petitioner requested permission to

complete the CRISS training , and he was allowed to do so.

CONCLUSIONS OF LAW

36. The Florida Civil Right s Act of 1992 (Act) is codified

in Sections 760.01 through 760.11, Florida Statutes. 2 "Because

th[e] [A]ct is patterned after Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §2000e - 2, federal case law dealing with Title

VII is applicable." Florida D epartment of Community Affairs v.

Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).

37. Among other things, the Act makes certain acts

"unlawful employment practices" and gives the FCHR the

authority, if it finds, following an administrative hearing

cond ucted pursuant to Sections 120.569 and 120.57, Florida

Statutes, that such an "unlawful employment practice" has

occurred, to issue an order "prohibiting the practice and

providing affirmative relief from the effects of the practice,

including back pay." §§ 760.10 and 760.11(6), Fla. Stat.

38. To obtain such relief from the FCHR, a person who

claims to have been the victim of an "unlawful employment

practice" must, "within 365 days of the alleged violation," file

a complaint ("contain[ing] a short and pl ain statement of the

facts describing the violation and the relief sought") with the

FCHR, the EEOC, or "any unit of government of the state which is

a fair - employment - practice agency under 29 C.F.R. ss. 1601.70 -

1601.80." § 760.11(1), Fla. Stat. "[O]nly those claims that

are fairly encompassed within a [timely - filed complaint] can be

the subject of [an administrative hearing conducted pursuant to

Sections 120.569 and 120.57, Florida Statutes]" and any

subsequent FCHR award of relief to the complainant. C hambers v.

American Trans Air, Inc. , 17 F.3d 998, 1003 (7th Cir. 1994).

39. The "unlawful employment practices" prohibited by the

Act include those described in Section 760.10(1)(a), Florida

Statutes, which provides as follows:

(1) It is an unlawful empl oyment practice

for an employer:

(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.

40. A complainant, like Petitioner, alleging that he was

the victim of intentional employment discrimination in violation

of the Act, has the burden of proving, at the admin istrative

hearing held on his allegations, that such discrimination

occurred. See Department of Banking and Finance Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 934 (Fla. 1996)("'The general rule is that a

p arty asserting the affirmative of an issue has the burden of

presenting evidence as to that issue.' ” ); Florida Department of

Health and Rehabilitative Services v. Career Service Commission ,

289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof

is 'on the party asserting the affirmative of an issue before an

administrative tribunal.'"); and Hong v. Children's Memorial

Hospital , 993 F.2d 1257 , 1261 (7th Cir. 1993)(" To ultimately

prevail on a disparate treatment claim under Title VII, the

plaintiff mu st prove that she was a victim of intentional

discrimination.").

41. "Discriminatory intent may be established through

direct or indirect circumstantial evidence." Johnson v.

Hamrick , 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001). "Direct

evidence is evid ence that, if believed, would prove the

existence of discriminatory intent without resort to inference

or presumption." King v. La Playa - De Varadero Restaurant ,

No. 02 - 2502, 2003 WL 435084 *3 n.9 (Fla. DOAH 2003)(Recommended

Order). "[D]irect evidence is composed of 'only the most

blatant remarks, whose intent could be nothing other than to

discriminate' on the basis of some impermissible factor. . . .

If an alleged statement at best merely suggests a discriminatory

motive, then it is by definition only circumstantial evidence."

Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir. 1999).

Likewise, a statement "that is subject to more than one

interpretation . . . does not constitute direct evidence."

Merritt v. Dillard Paper Co. , 120 F.3d 1181, 1189 ( 11th Cir.

1997).

42. "[D]irect evidence of intent is often unavailable."

Shealy v. City of Albany, Ga. , 89 F.3d 804, 806 (11th Cir.

1996). For this reason, those who claim to be victims of

discrimination "are permitted to establish their cases through

i nferential and circumstantial proof." Kline v. Tennessee

Valley Authority , 128 F.3d 337, 348 (6th Cir. 1997).

43. Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the "shifting

burden framework established by the [United States] Supreme

Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Dep't of

Community Affairs v. Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67

L. Ed. 2d 207 (1981)" is applied. "Under th is framework, the

[complainant] has the initial burden of establishing a prima

facie case of discrimination. If [the complainant] meets that

burden, then an inference arises that the challenged action was

motivated by a discriminatory intent. The burden then shifts to

the [employer] to 'articulate' a legitimate, non - discriminatory

reason for its action. 3 If the [employer] successfully

articulates such a reason, then the burden shifts back to the

[complainant] to show that the proffered reason is really

p retext for unlawful discrimination." Schoenfeld v. Babbitt ,

168 F.3d at 1267 (citations omitted).

44. Under no circumstances is proof that, in essence,

amounts to no more than mere speculation and self - serving belief

on the part of the complainant concer ning the motives of the

employer sufficient, standing alone, to establish a prima facie

case of intentional discrimination. See Lizardo v. Denny's,

Inc. , 270 F.3d 94, 104 (2d Cir. 2001)("The record is barren of

any direct evidence of racial animus. Of co urse, direct

evidence of discrimination is not necessary. . . . However, a

jury cannot infer discrimination from thin air. Plaintiffs have

done little more than cite to their mistreatment and ask the

court to conclude that it must have been related to th eir race.

This is not sufficient.")(citations omitted.); Reyes v. Pacific

Bell , 21 F.3d 1115 (Table), 1994 WL 107994 **4 n.1 (9th Cir.

1994)("The only such evidence [of discrimination] in the record

is Reyes's own testimony that it is his belief that he w as fired

for discriminatory reasons. This subjective belief is

insufficient to establish a prima facie case."); Little v.

Republic Refining Co., Ltd. , 924 F.2d 93, 96 (5th Cir.

1991)("Little points to his own subjective belief that age

motivated Boyd. An age discrimination plaintiff's own good

faith belief that his age motivated his employer's action is of

little value."); Elliott v. Group Medical & Surgical Service ,

714 F.2d 556, 567 (5th Cir. 1983)("We are not prepared to hold

that a subjective belief o f discrimination, however genuine, can

be the basis of judicial relief."); Rouillard v. Potter , 2003 WL

21026814*9 (D. Minn. 2003) (" A plaintiff's subjective belief or

speculation that statements are discriminatory does not

establish a claim of hostile work environment."); Coleman v.

Exxon Chemical Corp. , 162 F. Supp. 2d 593, 622 (S.D. Tex.

2001)("Plaintiff's conclusory, subjective belief that he has

suffered discrimination by Cardinal is not probative of unlawful

racial animus."); Cleveland - Goins v. City of New York , 1999 WL

673343 *2 (S.D. N.Y. 1999)("Plaintiff has failed to proffer any

relevant evidence that her race was a factor in defendants'

decision to terminate her. Plaintiff alleges nothing more than

that she 'was the only African - American man [sic] to hold the

position of administrative assistant/secretary at Manhattan

Construction.' (Compl.¶ 9.) The Court finds that this single

allegation, accompanied by unsupported and speculative

statements as to defendants' discriminatory animus, is entirely

in sufficient to make out a prima facie case or to state a claim

under Title VII."); Umansky v. Masterpiece International Ltd. ,

1998 WL 433779 *4 (S.D. N.Y. 1998)("Plaintiff proffers no

support for her allegations of race and gender discrimination

other than her own speculations and assumptions. The Court

finds that plaintiff cannot demonstrate that she was discharged

in circumstances giving rise to an inference of discrimination,

and therefore has failed to make out a prima facie case of race

or gender discr imination."); and Lo v. F.D.I.C. , 846 F. Supp.

557, 563 (S.D. Tex. 1994)("Lo's subjective belief of race and

national origin discrimination is legally insufficient to

support his claims under Title VII.").

45. In the instant case, the Petitioner failed to meet his

burden of proving, at the administrative hearing, that the

School Board committed the "unlawful employment practices"

alleged in the Petition for Relief in this case. See Walker v.

Florida Department of Business and Professional Regulation , 705

So. 2d 652, 655 (Fla. 5th DCA 1998)(Dauksch, J., specially

concurring)("[T]he trier of fact is never bound to believe any

witness, even a witness who is uncontradicted."); Maurer v.

State , 668 So. 2d 1077, 1079 (Fla. 5th DCA 1996)("A judge acting

as fact - f inder is not required to believe the testimony of

police officers in a suppression hearing, even when that is the

only evidence presented; just as a jury may disbelieve evidence

presented by the state even if it is uncontradicted, so too the

judge may disb elieve the only evidence offered in a suppression

hearing.").

46. The record in this case is bereft of any credible

evidence that the Petitioner was subjected to any adverse

employment action by anyone at the School Board that was based

on any Section 760 .10 - protected status he enjoyed at the time.

While the Petitioner may sincerely and genuinely believe that he

was so victimized, such a good faith belief, unaccompanied by

any persuasive supporting proof, is simply insufficient to

establish that such inte ntional discrimination occurred. 4

47. In view of the foregoing, no "unlawful employment

practice" should be found to have occurred, and the Petition for

Relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the FCHR issue a final order in this case

finding that the School Board of Miami - Dade County is not guilty

of any of the "unlawful employment practices" alleged by the

Petitioner and dismissing the Petition for Relief in its

ent irety.

DONE AND ENTERED this 20th day of February, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Div ision 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 20th day o f February, 2006.

END NOTES

1/ The School Board's Proposed Recommended Order is to a large

extent consistent with the findings and conclusions reached by

the administrative law judge. Substantial portions of the

proposal submitted by the School Board have been incorporated

i nto the Findings of Fact and Conclusions of Law in this

Recommended Order.

2/ All citations to the Florida Statutes are to the current

version of the statutes. At the time of the events from which

this case arises, all material portions of Chapter 760, Florida

Statutes, were the same as the current version of the statutes.

3/ " To 'articulate' does not mean 'to express in argument.'"

Rodriguez v. General Motors Corporation , 904 F.2d 531, 533 (9th

Cir. 1990). "It means to produce evidence." Id .

4/ E ven if the Petitioner had presented a prima facie case of

discrimination, the Respondent has articulated legitimate, non -

discriminatory reasons for the decisions at issue.

Specifically, the Petitioner was assigned to teach lower levels

of ESOL because th e demand for those classes was usually higher,

and the Petitioner was assigned to teach ESOL - PRE under the

SAVES program because he was well qualified to do so. During

the trimester at issue here, the Petitioner's part - time

employment ceased because the c lasses he was assigned to teach

were closed due to low enrollment in those specific classes.

Those classes were not closed because of unlawful and

intentional race discrimination. Further, the Petitioner was

not disqualified from future employment as a p art - time evening

ESOL teacher. He could have returned to teach part - time ESOL

classes the very next trimester, had he chosen to do so. The

Petitioner presented no evidence that the Respondent's proffered

reasons for the cancellation of his classes was pr etextual.

Rather, the evidence clearly demonstrates that the Petitioner's

classes were cancelled due to low enrollment. The record

contains no evidence that would support a finding that the

Respondent's decision to cancel the subject classes was made

wit h intent to discriminate on the basis of race.

COPIES FURNISHED:

Frank Kennebrew

13570 Southwest 192 Street

Miami, Florida 33177

Ana I. Segura, Esquire

School Board of Miami - Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

C ecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 323 01

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32 3 01

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.